An objection to the admissibility of a witness in high treason, on the ground that he is not properly described in the list of witnesses furnished to the prisoner, in pursuance of the statute, 7 Ann. c. 21, s. 14, must be taken in the first instance, otherwise the party might take the chance of getting evidence, which he liked, and if he disliked it, might afterwards get rid of it on the ground of misdescription. Watson's case, 2 Stark. 158 (a). Upon this principle an eminent writer founds an opinion; that a party who is cognizant of the interest of a witness, at the time he is called, is bound to make his objection in the first instance. Stark. Ev. part IV. p. 757; see also Phill. Ev. 148 (n. 3.)

Voire dire.] The party against whom a witness is called, may examine him respecting his interest on the voire dire, or may call other witnesses, or adduce other evidence in support of the objection; the modern rule being, that if the fact of interest be satisfactorily proved, the witness will be incompetent, though he may have ventured to deny it on the voire dire (1). A person may be examined on the voire dire, as to the contents of a written instrument without its being produced, but if he produces the instrument it must be read. Butler v. Carver, 2 Stark. 434 (b).

(1) An election to examine the witness himself on his voire dire precludes a resort to evidence aliunde to prove his interest. Mallett v. Mallett, 1 Root, 501. Lessee of Bisber v. Hall, 3 Ohio, 465. Mifflin v. Bingham, 1 Dall. 275. Cole . Cole, 1 Har. and John. 572. Bridge v. Wellington, 1 Mass. 219. Butler v. Butler, 3 Day's Cases, 214. Dow v. Osgood, 2 Tyler, 28. Welden v. Buck, Anthon's N. P. 10 n. Berry v. Wallin & al., 1 Overton, 107. Ray v. Mariner & ux. 2 Hayw. 385. Chance v. Hine, 6 Conn. 231. Chatfield v. Lathrop, 6 Pick. 417. Though sworn on the voire dire, yet if his interest appears on his own examination, he may be set aside. Evans v. Eaton, Peters's C. C. Rep. 338. Davis v. Barr, 9 S. & R. 138. Baldwin v. West, Hardin, 50. And where on his cross examination the witness denies his interest, this does not preclude a resort to other evidence. Stout v. Wood, 1 Blackf. 72. 1 Dall. supra. So when the examination on the voire dire leaves it doubtful whether the witness be or be not interested. Shannon v. The Commonwealth, 8 S. & R. 444. Galbraith . Galbraith, 6 Watts, 112. If he refuse to answer on the voire dire, the court cannot presume him interested, but must commit him for contempt. Lott v. Burrell, 2 Rep. Const. Ct. 167.

A resort to one mode to prove interest on one ground does not prevent the use of the other mode to establish it on a distinct and different ground. Stebbins & an. v. Sachet, 4 Conn. 258. The defendant called a witness to whom the plaintiff objected, on the ground of the want of a religious belief, and the judge admitted the testimony of witnesses in support of and in opposition to the objection, and afterwards the proposed witness was examined on his voire dire, and having testified to his belief was admitted to give evidence in chief. Quinn v. Crowell, 4 Wharton, 334.

Where the witness on the voire dire denies his interest generally, he may be interrogated particularly as to his situation to show that he has none. Emerton v. Andrews, 4 Mass. 653. Baldwin v. West, Hardin, 50. Reed's lessee v. Dodson, 1 Overton, 396. Williams v. Matthews, 3 Cowen, 352. Contra, Moore v. Sheredine, 2 Har. & M'H. 453. But see Peter v. Beall, 4 Id. 342.

A witness who believes himself interested, when in truth he is not, is competent. The State v. Clark, 2 Tyler, 273. Long v. Baillie, 4 S. & R. 226. Fernsler v. Carlin, 3 Ib. 130. Henry v. Morgan, 2 Binn. 497. Williams v. Matthews, 3 Cowen, 352. Davis v. Barkley, 1 Harper, 63. Rodgers v. Burton, Peck, 108. 6 Conn. 371. Dellone v. Rekmer, 4 Watts, 9. Commercial Bank of Albany v. Hughes, 17 Wend. 94. Contra, Richardson's Ex'r. v. Hunt, 2 Munf. 148. Sentney v. Overton, 4 Bibb, 445. Trustees of Lansingburg v. Willard, 8 Johns. 428. Plumb v. Whiting, 4 Mass. 518. Peter v. Beall, supra. Elliott v. Porter, 5 Dana, 304, So an honorary obligation does not render the witness incompetent. Long v. Baillie, supra, Gilpin v. Vincent, 9 Johns. 219. Carman v. Foster, 1 Ashmead, 133. Smith v. Downs, 6 Conn. 365. See Skillinger v. Bolt, 1 Conn. 147. Coleman v. Wise & al., 2 Johns. 165. Moore v. Hitchcock, 4 Wend. 292.

The declaration of a witness as to his interest will not exclude him. Pierce v. Chase, 8 Mass. 487. Commonwealth v. Waite, 5 Id. 261. Vining v. Wooton, Cooke's Rep. 127. Henry v. Morgan, 2 Binn. 497. Fernsler v. Carlin, 3 S. & R. 130. Lessee of Pollock v. Gillespie, 2 Yeates, 129. Contra, Colston v. Nicholls, 1 Har. & J. 105. Anon. 2 Hayw. 340. See Patten v. Halsted, 1 Coxe, 277. But the admission of his interest by the party who calls him will exclude him. Pierce v. Chase, 8 Mass. 487. Nichols v. Holgate & al., 2 Aiken, 138. (b) Id. iii. 418.

(a) Eng. Com. L. Rep. iii. 293.

When the objection to the admissibility of a person tendered as a wit ness arises solely on his own examination on the voire dire, the objection may be removed in the same manner as it was raised, namely, by the statement of the party himself, without calling for the instrument by which, in fact, his competency was restored (1). Thus, where a witness was objected to as next of kin in an action by an administrator, but on re-examination stated that he had released all his interest, the objection was held by Lord Ellenborough to be removed. Ingram v. Dade, 1817, Phill. Ev. 150, 8th ed., 15 East, 57. The witness, however may be cross-examined as to the validity of the release; thus, where a corporator stated in the voire dire, that he had been disfranchised at a corporate meeting, it was held that he might be questioned to ascertain whether it was a regular meeting, and on his referring to a book in court, that the book might be inspected to impeach the regularity of the disfranchisement. Godmanchester v. Phillips, 4 A. and E. 550 (a). But where the objection is attempted to be removed, not by the statement of the party called, but by other testimony, the case is governed by the usual rules of evidence. Thus, if another witness is called to prove that the party supposed to be interested, has in fact been released, such release must be produced. Corking v. Jarrard, 1 Campb. 37. So where it appears by any other evidence than that of the party called himself, that he is competent, though the objection is taken at the time of the voire dire, it cannot be answered by the statement of the witness alone, but the facts in answer must be proved according to the usual course of evidence. See Botham v. Swingler, 1 Esp. N. P. C. 164. Thus, where in an action by the assignees of a *bankrupt, the bankrupt was himself called and objected to, but [*154] stated that he had obtained his certificate, which he did not produce, Best, C. J., ruled, that both his release and certificate must be produced; that it was not like the case of an objection raised by secondary evidence on the voire dire, which might be removed by the same description of evidence. Goodhay v. Hendry, M. and M. 319 (b). In a similar case, Tindal, C. J., said, the difficulty is, that the objection does not arise upon the voire dire, it appearing from the opening of the case for the plaintiffs, and from the pleadings themselves, that the witness is a bankrupt, and not merely from questions put to him when he comes into the box. Anon. M. and M. 321 (n.) (c). However, the point was otherwise decided by Mr. Justice Park, who permitted the bankrupt to give parol evidence of his certificate and release, without producing them. Carlisle r. Eady, 1 C. and P. 234 (d), and see also S. P., per Parke, B., Wandless v. Cawthorne, M. and M. 321 (n.) (e), Phill. Ev. 8th ed.

Examination in chief.] When a witness has been sworn, he is examined in chief by the party calling him. Being supposed to be in the interest of that party, it is a rule, that upon such examination, leading questions shall not be put to him (2). Questions to which the answer, Yes or No, would not be conclusive upon the matter in issue, are not in general objectionable. It is necessary, to a certain extent, to lead the mind of

(1) Carmalt v. Platt, 7 Watts, 318.

(2) Lessee of Snyder v. Snyder, 6 Binn. 483. Stratford v. Sandford & al., 9 Conn. 275. (a) Eng. Com, L. Rep. xxxi. 139. (b) ld. xxii. 321. (c) Id. 322. (d) Id. xi. 378. (e) Id. xxii. 321.

the witness to the subject of the inquiry. Per Ld. Ellenborough, Nicholls v. Dowding, 1 Stark. 81 (a). Thus, where the question is, whether A. and B. were partners, a witness may be asked whether A. has interfered in the business of B. Id. So where a witness being called to prove a partnership could not recollect the names of the component, members of the firm, so as to repeat them without suggestion, Lord Ellenborough, alluding to a case tried before Lord Mansfield, in which the witness had been allowed to read a written list of. names, ruled, that there was no objection to asking the witness, whether certain specified persons were members of the firm. Acerro v. Petroni, 1 Stark. 100 (b). So for the purpose of identification, a particular prisoner may pe pointed out to the witness, who may be asked whether he is the man. De Benger's case, 1 Stark. Ev. 125, 1st ed.; 2 Stark. N. P. C. 129 (n.) (c). And in Watson's case, 2 Stark. N. P. C. 128 (d), the court held that the counsel for the prosecution might ask in the most direct terms, whether any of the prisoners was the person meant and described by the witness. So where a question arose as to the contents of a written instrument which had been lost, and in order to contradict a witness who had been examined as to the contents, another witness was called, Lord Ellenborough ruled, that after exhausting the witness's memory as to the contents of the letter, he might be asked if it contained a particular passage recited to him, which had been sworn to on the other side, otherwise it would be impossible ever to come to a direct contradiction. Courteen v. Touse, 1 Campb. 43.

[*155] Upon the same principle, viz., the difficulty or impossibility of *attaining the object for which the witness is called, unless leading questions are permitted to be put to him, they have been allowed where they are necessary, in order to establish a contradiction. Thus where counsel, on cross-examination, asked a witness as to some expressions he had used, for the purpose of laying a foundation for contradicting him, and the witness denying having used them, the counsel called a person to prove that he had, and read to him the particular words from his brief, Abbott, C. J., held that he was entitled to do so. Edmonds v. Walter, 3 Stark. N. P. C. 8 (e). The propriety of admitting leading questions to this extent has been questioned by Mr. Phillipps. Upon the whole," he observes, "the most unexceptionable and proper course appears to be, to ask the witness who is called to prove a contradictory statement, made by another witness, what that other witness said relative to the transaction in question, or what account he gave; and not in the first instance to ask him in the leading form, whether he said so and so, or used such and such expressions." Phill. Ev. 890, 8th ed.

Where a witness, examined in chief, by his conduct in the box shows himself decidedly adverse to the party calling him, it is in the discretion of the judge to allow him to be examined, as if he were on cross-examination. Bastin v. Carew, Ry. and Moo. N. P. C. 127 (ƒ). Clarke v. Saffery, Id. 126 (g); Murphy's case, 8 C. and P. 297 (h); per Lord Abinger, C. B., Chapman's case, 8 C. and P. 558 (i). But if he stands in a situation which, of necessity, makes him adverse to the party calling him, it was held by Best, C. J., that the counsel may, as a matter of right, cross-examine him. Clarke v. Saffery, Ry. and Moo. N. P. C. 126 (k).

(a) Eng. Com. L. Rep. ii. 305. (b) Id. ii. 313. (c) Id. iii. 280. (d) Id. (e) Id. xiv. 145. (f) Id. xxi. 391. (g) Id. 395. (h) Id. xxxiv. 397. (i) Id. 523. (k) Id. xxi. 395.

Somewhat similar to this, is the question whether, where a witness, called for one party, is afterwards called by the other, the latter party may give his examination the form of a cross-examination; and it has been held that he may; for, having been originally examined as the witness of one party, the privilege of the other to cross-examine remains through every stage of the case. Dickenson v. Shee, 4 Esp. 67, 1 Stark. Ev. 162, 2d

ed.

Cross-examination.] Leading questions are admitted on cross-examination, in which much larger powers are given to counsel than in the original examination. The form of a cross-examination, however, depends in some degree like that of an examination in chief, upon the bias and disposition evinced by the witness under interrogation. If he should display a zeal against the party cross-examining him, great latitude with regard to leading questions may with propriety be admitted. See Phill. Ev. 912, 8th ed. But if, on the other hand, he betrays a desire to serve the party who cross-examines him, although the court will not in general interfere to prevent the counsel from putting leading questions, yet it has been rightly observed, that evidence obtained in this manner is very unsatisfactory and open to much remark. See 1 Stark. Ev. 162, 2d ed. The rule with regard to putting leading questions on *cross-exam- [ *156 ] ination was thus laid down by Mr. Justice Buller. "You may lead a witness upon cross-examination, to bring him directly to the point, as to the answer; but you cannot go the length of putting into the witness's mouth the very words he is to echo back again." Hardy's case, 24 How.

St. Tr. 755.

In a recent case, where an objection was made to leading a willing witness, Alderson, B., said, "I apprehend you may put a leading question to an unwilling witness, on the examination in chief, at the discretion of the judge, but you may always put a leading question in cross-examination, whether a witness be unwilling or not." Parkin v. Moon, 7 C. & P. 408 (a).

Irrelevant questions will not be allowed to be put to a witness on crossexamination, although they relate to facts opened by the counsel on the other side, but not proved in evidence. Lucas v. Novosilieski, 1 Esp. 297. Nor will such questions be allowed to be put for the purpose of discrediting the witness, by calling other testimony to contradict him (1). Vide post, p. 169. Thus on a trial for usury the defendant's counsel proposed to cross-examine one of the plaintiff's witnesses, to certain transactions which he had had with third persons, but Lord Ellenborough refused to permit the question to be put, and the court held that he was right, observing, that it had been decided over and over again, that on cross-examination to try the credit of a witness, only general questions could be put, and that he could not be asked as to any collateral and independent fact, merely with a view to contradict him afterwards by calling another witness. Spenceley v. Willott, 7 East, 108.

(1) Ware Ware, 8 Greenl. 42.

State v. Alexander, 2 bring it into the issue.

Atwood. Felton, 7 Conn. 66. Rep. Const. Ct. 171. Cross-examination to irrelevant matter will not Griffith v. Eshleman, 4 Watts, 51. Page v. Hemans, 14 Maine, 478. Goodhand v. Benton, 6 Gill & J. 481. Williams r. The State, Wright, 42. Smith v. Dreer, 3 Whart. 154. Norton v. Valentine, 15 Maine, 36. See The People v. Byrd, 1 Wheeler's C. C. 242.

(a) Eng. Com. L. Rep. xxxii. 559.

Counsel cannot assume that a witness has made a statement on his examination in chief, which he has not made; Hill v. Coombe, MS. Mann. Dig. N. P. 337; or put a question which assumes a fact not in proof. Doe v. Wood, Id.

A reporter to a newspaper cannot be asked on cross-examination, whether, in articles he has written for the newspaper, he has not called the opposite party nicknames, as that is part of the contents of the articles. Murphy's case, 8 C. and P. 297 (a).

Where a witness, on being asked upon cross-examination, to repeat an answer she had previously given before the whole of it was taken down, omitted a part of it, and denied she had ever uttered such part, the judge allowed the shorthand reporter of the court, who had taken down the answer, to be examined to prove the fact. O. B. Slater's case, 6 C. and P. 334 (b).

If the counsel, on cross-examining a witness, puts a paper into his hand, and questions him upon it, and anything comes of such questions, the counsel on the other side have a right to see the paper, and re-examine upon it, but if the cross-examination founded on the paper entirely fails, the opposite counsel have no right to see the paper. Duncombe's case, 8 C. and P. 369 (c).

Where a witness is called merely to produce a document, which can be proved by another, and he is not sworn, he is not subject to cross[ *157] examination. Simpson v. Smith, 1822, cor. Holroyd, J., *Phill. Ev. 909, 8th ed., and per Bayley, J., 1824, 1 Stark. Ev. 179, 2d ed.; Davis v. Dale, Moo. and Malk. 514 (d). Thus where, on an indictment for perjury, a sheriff's officer had been subpoenaed to produce a warrant of the sheriff, after argument he was ordered to do so, without having been sworn. Murlis's case, Moo. and Malk. 515. But where the party producing a document is sworn, the other side is entitled to cross-examine him, although he is not examined in chief. Brooke's case, 2 Stark. 472 (e). Where, however, a person, called to produce a document, was sworn by mistake, and asked a question which he did not answer, it was held that the opposite party was not entitled to cross-examine him. Rush v. Smyth, 4 Tyr. 675, 1 Cr. M. and R. 94. So where a witness has been asked only one immaterial question, and his evidence is stopped by the judge, the other party has no right to cross-examine him. Creevy v. Carr, 7 C. and P. 64 (f). Where a witness is sworn, and gives some evidence, if it be merely to prove an instrument, he is to be considered a witness for all purposes. Morgan v. Bridges, 2 Stark. 314 (g).

As already stated, it as been held at nisi prius, that if a witness has been once examined by a party, the privilege of cross-examination continues in every stage of the cause, so that the other party may call the same witness to prove his case, and in examining him may ask leading questions. Dickenson v. Shee, 4 Esp. 67; see observations on this case, Phill. Ev. 911, 8th ed. (1).

(1) Upon cross-examination, the witness cannot be asked a leading question in respect to new matter. Harrison v. Rowan, 3 Wash. C. C. Rep. 580.. "And here" says Gibson, C. J., in Ellmaker v. Buckley, 16 S. and R. 77. "I take occasion in broad terms to dissent from the doctrine broached in Mr. Phillipps' Law of Evidence (211), that a witness, actually sworn, though not examined by the party who has called him, is subject to cross-examination by the adverse party; and that the right to cross-examine is continued through all the subsequent (a) Eng. Com. L. Rep. xxxiv. 397. (b) Id. xxv. 426. (c) Id. xxxiv. 432. (d) Id. xix. 410. (e) Id. iii. 437. (ƒ) Id. xxxii. 438. (g) Id. iii. 361.