have been more vehemently discussed or critically considered than the one now under review. The pivotal concept in all prosecutions for crime, is to the effect that the state in its effort to fasten upon one of its citizens the stigma and the infamy of a felonious characteristic, must be fully prepared to satisfactorily prove the offense it alleges, without invading the constitutional prerogative of the accused which relieves him from the necessity of testifying. These constitutional safeguards are emphasized and given great prominence in the organic law of every state composing confederation; and this privilege is guaranteed him by such positive and unequivocal language, as we find embodied in the Federal Constitution. "No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself." Direct and positive, as this language seems, it has been a prolific source of legal agitation, and a vast amount of misconception still pervades the entire subject, notwithstanding the most vigorous attempts of the judicial mind to dispel the obscurity. The least reflection would seem to suggest at least the logical formula of the rule that should obtain. The state must prove the averments and implications of its indictment, and to achieve this result, it cannot rely upon the testimony of the party accused. But where, under the emergencies that confront the defendant, he for any reason deems it advantageous to take the stand as a witness in his own behalf, it is not a perversion of common sense and natural justice to say to the state's attorney, "the accused may swear to whatever will exculpate him, but you on cross-examination cannot deviate from the rule that confines your questionings to such as have been suggested by the examination in chief." Such a ruling as this offers a premium on crime and is a direct encouragement to gross perjury, while it refuses to harmonize with the first elements of natural justice. The accused renounces the privilege of silence by becoming a witness, and in placing himself upon the stand, he avowedly and by implication invites and challenges such questioning as may be pertinent to the issues involved-such scrutiny of his conduct as may be fairly deemed within the scope and nature of the indictment. Fortunately, these assumptions of the text are fully vindicated by the entire tenor and trend of modern adjudication.

People v. Tice, decided by the New York court of appeals in

June, 1892, reported in 15 L. R. A. 669, where it was made the occasion for an exhaustive explanatory note by James G. Green, Esq., of counsel in the case.

The note is here given in full, as furnishing by far the most satisfactory exposition of this subject anywhere published.

NOTE.-Cross-examination of the defendant in criminal cases.
Under statutory limitations.

Under a statute providing that when the accused offers "himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief," a defendant in a criminal case who, on his direct examination, has testified as to particular facts only cannot be cross-examined generally as a witness in the case. People v. O'Brien, 66 Cal. 602.

If the accused has answered questions on cross-examination without objection, which were without the range of his testimony in chief, he cannot escape answering a further question asked for the purpose of clearing up what he has already said, on the ground that it is foreign to his direct examination. People v. Sutton, 73 Cal. 243.

He may be examined about an alias and a conviction of felony for the purpose of discrediting his testimony, although not referred to in his direct examination. People v. Meyer, 75 Cal. 383; McFarland and Patterson, JJ., record a vigorous dissent.

In People v. Fong Ching, 78 Cal. 169, it was held that testimony in chief by the accused as to his birth, parentage, education and business opened the door wide enough to allow him to be asked on cross-examination whether he had ever been arrested before.

Under such statute a defendant who testifies that he did not commit the offense may be asked on cross-examination any question showing his testimony to be false, as whether he wrote a certain letter which contradicted his testimony. People v. Rozelle, 78 Cal. 84.

One on trial for stealing property which he testifies he purchased of a certain person, may be cross-examined as to the present whereabouts of the alleged vendor and the prisoner's efforts to procure his attendance at the trial. People v. Cline, 83 Cal. 374.

In Missouri it is provided by statute that the accused "shall be liable to crossexamination as to any matter referred to in his examination in chief" [Rev. Stat. § 1918], which is held to restrict the cross-examination to the matter referred to in the direct examination. State v. Chamberlain, 5 West. Rep. 386, 89 Mo. 129; State v. Trott, 36 Mo. App. 29; State v. Patterson, 3 West. Rep. 226, 88 Mo. 88; State v. McLaughlin, 76 Mo. 320; State v. Porter, 75 Mo. 171, 178; State v. McGraw, 74 Mo. 573; State v. Turner, 76 Mo. 350.

But it is not reversible error if the matters touched upon by the cross-examination which were outside the scope of the direct examination were unimportant and could not affect the verdict. State v. Brooks, 10 West. Rep. 679, 92 Mo. 542, 582; State v. Beaucleigh, 10 West. Rep. 377, 92 Mo. 490; State v. Douglass, 81 Mo. 231.

The accused cannot be cross-examined as to previous convictions for crime. State v. Brent, 100 Mo. 531.

Objection must be made and exception saved in order to assign error on a

§ 224. Testimony of Witness since Deceased, Given on Former Trial.-The evidence of a witness, since deceased, on a

question which passes the statutory limit of cross-examination. State v. Mills, 4 West. Rep. 406, 88 Mo. 417.

The defendant having denied having a cane at the time of an affray may be cross-examined as to his possession of a cane shortly prior thereto.

McKinzie, 102 Mo. 620.

State v.

In State v. Owen, 78 Mo. 367, 377, it was held proper to ask on cross-examination of the prisoner, "Is this all you are willing to tell the jury about this case ?"

The Missouri statute restricting the cross-examination of the accused to the subject of the direct was passed subsequent to State v. Clinton, 67 Mo. 380, 28 Am. Rep. 506; State v. Cox, 67 Mo. 392; State v. Testerman, 68 Mo. 408, and State v. Rugan, 68 Mo. 214, which cases followed a different rule.

Under the Oregon statute, which provides that an "accused when offering his testimony as a witness in his own behalf shall be deemed to have given to the prosecution a right to cross-examination upon all facts to which he has testified, tending to his conviction or acquittal," he cannot be cross-examined as to irrelevant matters for the purpose of discrediting him. State v. Saunders, 14 Or. 300.

Thayer, J., says, however, p. 309: "It is very likely that if the statute contained no limitation as to the extent of the cross-examination of a defendant in such a case, he would occupy the same footing of any other witness."

In State v. Lurch, 12 Or. 99, 103, it is said of the Oregon statute: "This does not compel him to be a witness against himself beyond such cross-examination. The humane principle of the law that the party shall not be compelled to be a witness against himself, is as effectually violated when the crossexamination of the accused is extended beyond the facts to which he has testified, as it would be if he were to be called and made to testify at the instance of the state."

A similar limitation on the range of the cross-examination of a defendant in a criminal case is imposed by statute in Arizona and Louisiana.

In criminal cases the cross-examination of witnesses must be confined to the subject-matter of the direct or to that closely connected therewith. State v. Wright, 48 La. Ann. 589; State v. Baker, 43 La. Ann. 1168.

In Georgia the accused cannot become a witness on his own trial but may make an unsworn statement and may decline to answer any question on crossexamination. Ga. Code 1882 (Lester, R. & H. ed.) §§ 3854, 4637.

In absence of statutory limitation.

In general.

Whether the cross-examination must be confined to the range of the testimony in chief, or may extend to the matters in issue, is a question of state and not of federal law. Ex parte Spies, 123 U. S. 131, 31 L. ed. 80.

Judge Cooley in his work on Constitutional Limitations, p. 317, says: "These statutes (giving the accused the right to testify) cannot be so construed as to authorize compulsory process against an accused to compel him to disclose more than he chooses. If he does testify he is at liberty to stop at any

former trial of the same case, may be proven on a subsequent trial. His deposition then taken may be introduced either by the point he chooses and it must be left to the jury to give a statement, which he declines to make a full one, such weight as under the circumstances they think it entitled to; otherwise the statute must have set aside and overruled the constitutional maxim which protects an accused party against being compelled to testify against himself and the statutory privilege becomes a snare and a danger."

Under the former Michigan statute which allowed the prisoner to make an unsworn statement the cross-examination could not go beyond the statement. People v. Thomas, 9 Mich. 314, 321; Gale v. People, 26 Mich. 157.

But since the statute of 1881 he may be cross-examined like any other witness on matters outside of his testimony in chief. And this although he was not under oath, the right to make an unsworn statement having been taken away by the statute of 1881. People v. Robinson, 86 Mich. 415. It is held in Miller v. State, 15 Fla. 577, that the statute allowing the accused to make a "statement of the matters of his or her defense, under oath, before the jury," does not render one making such statement subject to cross examination.

Of the view taken by Judge Cooley it is said in Clark v. Jones, 87 Ala. 474, 479: "It may be that the learned author's mind was specially directed to the statute of Michigan [now repealed] which allowed the accused to make an unsworn statement, but subject to be cross-examined on such statement. If the observations apply to statutes which permit a defendant to become a witness sworn and examined as such, we cannot concur in a construction which authorizes the accused, after exercising his option, and while occupying the posi tion of a witness, to disclose and to decline to disclose such facts as may, in his opinion, suit his convenience and interest, leaving his refusal to make full answers merely to be considered by the jury in weighing his evidence."

The general rule in jurisdictions where there is no statutory limitation is that an accused person testifying in his own behalf is to be cross-examined like any other witness. Connors v. People, 50 N. Y. 240; People v. Howard, 73 Mich. 10; Boyle v. State, 2 West. Rep. 788, 105 Ind. 469; Keyes v. State, 122 Ind. 527; State v. Pfefferle, 36 Kan. 90; Fralich v. People, 65 Barb. 48; Marx v. People, 63 Barb. 618; State v. Huff, 11 Nev. 17; McKeone v. People, 6 Colo. 346; Chambers v. People, 105 Ill. 409, 413.

Whether the range of the cross-examination will be restricted to that of the direct will depend upon the rule of cross-examination of witnesses which prevails in each jurisdiction-that is whether the strict, so-called American rule is followed or the liberal English rule.

The rule that the cross-examination of any witness must be confined to the subject opened by the direct, does not, however, restrict it to the specific facts of the direct examination, "for, once a subject is entered upon, it is opened to a full and detailed examination on cross-examination." Boyle v. State, 2 West. Rep. 788, 105 Ind. 469.

In discussing the statute enabling an accused person to testify in his own behalf, Davis, P. J., in People v. Courtney, 31 Hun, 199 (affirmed, 94 N. Y. 490) says, obiter, p. 202, that when "a person accused of crime elects to become a witness in his own behalf, he occupies the same position as any other witness

state or by the accused. Such proof does not violate defendant's constitutional right to "meet the witness face to face." And his and may be fully examined in conformity to the established rules of evidence to contradict any testimony he may give, or to impeach or impair his own credibility, in the same manner as that of any other witness may be impaired." In Ruloff v. People, 45 N. Y. 213, 221, although the exception was to comments by the trial judge on the failure of the defendant to take the stand in his own behalf, Allen, J., said: "If sworn, . . . he (the defendant) will, under the law as now understood and interpreted, be subjected to the crossexamination of the prosecuting officer, and made to testify to any and all matters relevant to the issue, or his own credibility and character, and under pretense of impeaching him as a witness, all the incidents of his life brought to bear with great force against him. ”

Cross-examination of an accused as to matters not touched by his direct examination is not compelling him "to be a witness against himself" within the constitutional prohibition. McGarry v. People, 2 Lans. 227.

The court said, p. 232: "He was not only a volunteer, but had taken the necessary oath to enable himself to testify, ‘to tell the truth, the whole truth and nothing but the truth' upon the whole issue of traverse between himself and the people. He could not have been compelled to give evidence at all, but when he made himself a witness, . . he waived the constitutional pro

tection in his favor and subjected himself to the peril of being examined as to any and every matter pertinent to the issue." Reversed on another point without noticing the question arising on the defendant's cross-examination. McGary v. People, 45 N. Y. 153.

The range and extent of cross-examination is within the discretion of the trial judge, subject to the limitation that it must relate to facts pertinent to the issue or which tend to discredit the witness or impeach his moral character. People v. Court of Oyer & Terminer, 83 N. Y. 436, 460; People v. Clark, 3 Cent. Rep. 801, 102 N. Y. 735; People v. Hooghkerk, 96 N. Y. 149, 163; Territory v. O'Hare, 1 N. D. 30.

When the accused testifies in his own behalf it is within the discretion of the trial court to allow cross-examination on the whole case, although not covered by the direct examination. Disque v. State, 6 Cent. Rep. 331, 49 N. J. L. 249. An accused when a witness in his own behalf is subject to the same tests as are applied to other witnesses, i. e., to cross-examination as to any pertinent matter and impeachment by assailing his character or by proof of contradictory statements. Clarke v. State, 78 Ala. 474; on subsequent appeal, 87 Ala. 71; Norris v. State, 87 Ala. 85.

An accused person may be cross-examined the same as any other witness to lay the foundation for his impeachment. State v. Red, 53 Iowa, 69.

As to relevant matters.

A defendant in a criminal proceeding, who elects to testify in his own behalf, waives the constitutional protection against being compelled to give evidence against himself and is subject to cross-examination on all matters pertinent to the issue, State v. Wentworth, 65 Me. 234, 240, 20 Am. Rep. 688; State v. Witham, 72 Me. 531; State v. Ober, 52 N. H. 459, 13 Am. Rep. 88; State v. Cohn, 9 Nev. 179; Rains v. State, 88 Ala. 91; People v. Bussey, 82 Mich. 49.