WITNESSES, TION OF. When not advisable to cross-examine. What questions may be put N. P. C. 857. However, circumstances may arise which will not give this right to the opposite counsel; as where the plaintiff's counsel called Captain S.," and "Capt. Hugh S." answered and was sworn; and the plaintiff's counsel, after asking him a few questions, ascertained that it was Capt. Francis S." whom they meant to examine. This was held not to give the other side a right to cross-examine Capt. Hugh S., as he was only examined by mistake. Clifford v. Hunter, 3 C. & P. 16; 1 M. & M. 113, S. C. If the prisoner is not assisted by an advocate, it is the duty of the Court to ask any questions which they think may tend to his benefit. 1 Chit. C. L. 407. 621. If the witness tell the whole truth, a cross-examination may be dangerous, as it may have the effect of rendering his story more circumstantial, and impressing the jury with a stronger opinion of its truth. It is better, in such a case, either not to cross-examine him at all, or to confine the questions to his credibility, by impugning his means of knowledge, his disinterestedness, his integrity, or his veracity. If the witness tell only part of the truth, then the opposite counsel, if the residue be favourable to his client, will immediately proceed to cross-examine him as to it; but if unfavourable, the counsel will either refrain altogether from crossexamining him, or will confine his questions to the witness's credibility, as above mentioned. If, on the other hand, the evidence of the witness be false, then the whole force of the cross-examination must be directed to his credibility; and afterwards the truth may be proved by other witnesses. Arch. C. Pl. & Evid. 116, 117. With respect to what questions may be put to a witness on cross-examination, the practice appears rather confused; insomuch that no general rule can be well laid down on the subject. Certain it is the opposite party is allowed greater latitude in the cross-examination than the party examining in chief. Thus leading questions may be asked, though, indeed, the witness must not have put to him the very words he is to echo back again. Peake's Evid. 206; R. v. Hardy, 20 How. St. Tri. 755. And the questions must not assume facts to have been proved, or that particular answers have been given contrary to the facts. Stark. Evid. Part II., 132; 4 Esp. 74. In strictness a witness cannot be asked if at a former trial he swore differently from what he is now swearing; but an examined copy of the record of the former trial, or at least the Nisi Prius record (if the cause has been tried at Nisi Prius) should be provedBarnes, 449; 2 Stark. 364; and then it should be proved that the witness swore at that trial, either by having it read from the judge's notes, or proved upon oath from the notes or recollection of any person who was present at the time. 3 Taunt. 262; 12 Mod. 318; Gilb. Ev. 68, 69. So it is not allowable on cross-examination, in the statement of a question to a witness, to represent the contents of a letter, and to ask him whether he wrote a letter to any person with such contents, or contents to the like effect, without having first shown the witness the letter, and having asked him whether he wrote that letter. Queen's case, 2 B. & B. 286. And if, on cross-examination, a witness admits a letter to be of his handwriting, he cannot be questioned by counsel whether statements such as the counsel may suggest are contained in it; but the whole letter must be read. Id. 288. In the ordinary course of proceeding, such letter must be read as part of the cross-examining counsel's case. The Court, however, may permit it to be read at an earlier period if the counsel suggest that he wishes to have the letter read immediately, in order to found certain questions upon it; considering it, however, as part of the evidence of the counsel proposing such a course, and subject to the consequences thereof. Id. The questions must be either relevant and pertinent to the matter in issue, or calculated to elicit the witness's title to credit. In order to try a witness's credit, facts may be supposed, apparently connected with the cause, which have no real existence except in the imagination of the counsel. Peake's Evid. 206; 1 Phill. Evid. 276; Stark. Evid. Part II. Cross, 135. But how far questions may be asked for the same purpose, which have no seeming tendency to bear on the point in issue, appears still to be dubious. It is, perhaps, better left to the discretion of the Court, in each particular case, to prevent the counsel from too great a digression from the matter in issue. 1 Chit. C. L. 622. At all events a witness cannot be cross-examined as to any distinct collateral fact for the purpose of afterwards impeaching his testimony by contradicting him. Stark. Evid. Part II. 134; 7 East, 108; 2 Stark. 156. And should such questions be put and answered, evidence cannot be afterwards adduced for the purpose of contradiction. 2 Camp. 638; 2 Stark. 156; 1 Chit. C. L. 622, 2nd edition. WITNESSES, EXAMINA- If a witness, when examined in chief as to the occurrence of a fact, answer that he does not remember it, the counsel on the opposite side cannot give evidence of a former declaration by the witness of the fact having occurred, unless he have in cross-examination questioned the witness as to sach declaration; for the fact may have occurred, and the witness have formerly declared his knowledge of it, and yet he may not recollect it at the time of his examination. The Queen's case, 2 Brod. & Bing. 299. Re-examination-When the cross-examination is completed, the Re examination. counsel by whom the witness was called is entitled to re-examine him for the purpose of explaining any matter into which confusion has been introduced by the questions of the adversary; but he can only put questions on matters touched on or referred to in the cross-examination. Talfourd's Dick. Sess. 382. If a witness, upon his cross-examination, admit his having used certain expressions in a conversation with a person not a party to the cause, the opposite counsel, in re-examining the witness, is confined to such questions as may elicit the meaning of the expressions, and the motives of the witness for using them. But where a witness deposes to certain expressions being used by a party to the cause, the counsel for that party is entitled to re-examine the witness as to the whole of the conversation in which the expressions occurred; because the expressions are given in evidence in such a case as an admission of the party, and the whole of the admission should be taken together. 2 Brod. & Bing. 294. Where any new matter occurs to the counsel who called the witness, which he considers important, and respecting which he is not allowed to examine the witness, he may request the Court to do so; and the Court generally complies with such request. Sometimes, indeed, where the counsel has omitted to bring forward some merely formal proof, the Court will allow it to be afterwards adduced, though the case has been closed. Evidence for Defendant-After the prosecutor has concluded his Evidence for decase, the defendant, if not entitled to an acquittal on some point of law, fendant. is called on to give in his evidence for the defence. See the course of a trial, post, Crial. Sessions, Vol. V. The mode of conducting such evidence may be collected from the preceding observations: and see particularly some points relative to discrediting the testimony of witnesses, ante, 78 to 81; and as to evidence of character, ante, 35, 36. Evidence in reply-When the defendant's evidence is closed, the pro- Evidence in reply. secutor's counsel may offer any evidence in reply which is strictly applicable to the defence, and which could form no part of his original case. Thus he may give specific contradictions to the witnesses on their denials on cross-examination, he may call persons to swear that they would not believe the witnesses on their oaths, and may apply an answer to any matter of excuse which the prisoner has set up, and which he could not anticipate; but he must not inake a new case, or seek to fill up the chasms WITNESSES, EXPENSES OF. Which party shall conclude. Expenses of witnesses. Privileges of. Bill of exceptions. Demurrer to evidence. Subpoena to give evidence at the sessions. or supply the deficiencies of that on which he originally relied. Talfourď's Dick. Sess. 387; 3 Car. & P. 464. When evidence is offered in reply in cases of misdemeanor, the defendant's counsel has a right to address the jury on such evidence. Id. The counsel of that party which doth begin to maintain the issue ought to conclude. Tri. per Pais, 220. V. Expenses of Witnesses and their Privileges during Attendance. The expenses of witnesses, and as to how far they may refuse attendance without a payment of them, have been already considered, ante, Costs, Vol. I., and see ante, 83. Witnesses, whether subpoenaed, or bound by recognizance to appear, or appearing voluntarily after being asked to do so (1 H. Bla. 636; 8 T. R. 536), are protected from arrest whilst attending the Court, not only on the day mentioned in the subpoena, &c., but also on every day of the same sittings, assizes, or sessions, until the cause is tried. They are also privileged in like manner, during a reasonable time, before and after the trial, whilst coming to or returning from the place where the sittings, assizes, or sessions are held. 2 Bla. Rep. 1113; 2 Stra. 986; Tidd, 9th ed., 195 to 198; 1 Chit. C. L. 614. If a witness under these circumstances be arrested, the Court out of which the subpoena issued, or the judge of the Court in which the cause is to be or has been tried, will, upon application, order him to be discharged. Id. VI. Bill of Exceptions and Demurrer to Evidence. When an exception is made by any party to a witness, which is overruled by the Court, the opposite side have, in civil proceedings, the power of appealing from his decision by tendering a bill of exceptions. But this practice does not obtain in criminal proceedings-at all events in treason and felony. 1 Chit. C. L. 622. See Tidd, 9th ed. 862; Rosc. 109. A demurrer to evidence is a proceeding by which the judges are called upon to determine what the law is upon certain facts which are brought forward in evidence, and is therefore analogous to a demurrer upon facts alleged in pleading. 2 H. Bla. 205; Tidd, 9th ed. 865, 6.—It can be of very little use and is rarely ever adopted in criminal proceedings, since the crown is never compellable to join in demurrer; but the judge directs the jury to find a special verdict, the legal effect of which the Court will afterwards determine. 5 Co. 104; 2 H. Bla. 187. VII. Forms. William the fourth, by the grace of God, of the united kingdom of Great Britain divers felonies, trespasses, and other misdemeanors in the said county committed, at the day of said county, on year of our reign. 1 Phill. Ev. 3, ante, 82. the day of in the There may be four witnesses put in one subpoena. 2 Cowp. R. 846; To Mr. A. W. (No. 2.) FORMS. By virtue of his majesty's writ of subpæna to you directed, and herewith shown A subpoena ticket to you, you are personally to be before his majesty's justices of the peace for the county of at [the general quarter sessions of the peace] to be holden for the the said county at thereon. , in the year and whereby the said requested the said tecum at the sessions. William the fourth, &c. [as in the common subpana, ante, 92, to the words "to Subpoena duces testify the truth," &c. and then proceed as follows:] And also that you, or one of you, do produce and show forth at the time and place aforesaid a certain [bill of exchange, purporting to bear date on, &c. and to be made and drawn by one apon and accepted by one two months after the date thereof, to pay to him the said , or his order, the sum of for value received,] then and there to testify and show, before the grand inquest, of all and singular those things which you or either of you know, or the said bill of exchange doth import, of and concerning a certain bill of indictment to be preferred, &c. (Proceed as in writ, ante, 92.) (No. 4.) [Commencement as usual, post, Recognizance, Vol. V.]—The condition of this recognizance is such, that if the above bound A. W. shall personally appear at the next general quarter sessions of the peace (or at the next general assize) to be holden at in and for the said county, and then and there give such evidence as he knoweth, upon [a bill of indictment to be exhibited by A. I., of the grand jury, against A. O., late of feloniously taking and carrying away in the said county, , the property of , yeoman, to yeoman, for the the said bill be found a true bill, then if the said A. W. shall then Summons of a Witness. Post, 104, (No. 4.) See title Summons, Vol. V. Condition of a recognizance to appear and give evidence at the sessions or assizes. Examinations by Justices before UNDER this title will be considered the mode in which an offence should As to the examinations of parties on the trial of an indictment, &c., see ante, 84 to 91; as to the examination of them on convictions, see ante, Convictions, Vol. I. We will divide our considerations under this title as follows, viz. (a) See, in general, I Chit. C. L. 72 to 92. Time and place of examination. Examination of accusers and witnesses. 1. Time and Place of Examination, 94. II. Examination of Witnesses against Accused, 94. V. Examination of Accused, 96. VI. Examinations to be put into Writing, &c. 97. VII. Obstructing Examination, 98. VIII. Remanding Accused for further Examination, 98. X. Bailing or committing him, 102. XI. Recognizance to prosecute and give Evidence, 102. XII. How Examinations, &c. to be kept, and Right of Party to Copies, 103. XIII. Certifying Examinations, &c. 103. 1. Time and Place of Examination. The accused being arrested and in custody should as speedily as possible be taken before a justice of the peace of competent jurisdiction, to hear and be examined concerning the offence imputed to him. If it be late in the evening, and no justice of the peace sitting in his public capacity, it is not reasonable, unless in crimes of a very heinous nature, or other peculiar circumstances justify it, that a justice of the peace should be called upon to examine into the charge at such an unreasonable hour. The examination may take place either in public or private. The justice may exclude an attorney or counsel if he likes-Cor v. Coleridge, 1 B. & Cres. 37; 2 D. & R. 86, S. C. See Daubney v. Cooper, 10 B. & Cres. 237; but not the accused. Dick, J., Examination. In many cases a private examination is desirable. II. Examination of Witnesses against Accused. The first step in the investigation as to the offence is to call for and examine the witnesses for the accusers. The whole proceedings of the examination should be in the presence and hearing of the accused. 1 Leach, 202, 309, 500, 503, a. 5 Mod. 163; Rex v. Commins, 4 D. & R. M. C. 94. The witness should be informed as to the purpose for which he is required to give evidence, or, in other words, that there is a person under charge against whom he is required to give evidence, otherwise the witness could not be punished for refusing to give evidence. Cropper v. Horton, 4 D. & R. M. C. 42. Before administering the oath to the witness, the magistrate had better inquire who and what the witness is; and in some cases it would be as well shortly to ascertain what he intends to prove. It seems that no witness ought to be examined who is not competent, according to the general rules of evidence, to give evidence, and as to which see ante, 63 to 78. After the competency of the witness is ascertained, he should be sworn |