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Re-examination.] A re-examination, which is allowed only for the purpose of explaining any facts which may come out on cross-examination, must of course be confined to the subject matter of the cross-examination. 1 Stark. Ev. 179, 2d ed. The rule with regard to re-examinations is thus laid down by Abbott, C. J., in the Queen's case, 2 Br. and Bingh. 297 (a). "I think the counsel has a right, on re-examination, to ask all questions which may be proper to draw out an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful; and also of the motive by which the witness was induced to use those expressions; but he has no right to go further, and introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness." "I distinguish between a conversation which a witness may have had with a party to a suit, whether criminal or civil, and a conversation with a third person. The conversations of a party to the suit relative to the subject matter of the suit, are in themselves evidence against him, in the suit; and if a counsel chooses to ask a witness as to any thing which may have been said by an adverse party, the counsel for that party has a right to lay before the court all that was said by his client in the same conversation; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only that it relate to the subject matter of the suit; because it would not be just to take part of a conversation as evidence against the party, *without giving the party at the same time the benefit of [*158 ] the entire residue of what he said on the same occasion." In Prince v. Samo, 3 N. and P. 139, the court of Q. B. said, they could not assent to the doctrine laid down in the above case; and they held, that when a statement made by a party to a suit in giving evidence on a former trial has been got out in cross-examination, only so much of the remainder of the evidence is allowed to be given on re-examination as tends to qualify or explain the statement made on cross-examination. See also per Alderson, B., Holland v. Reeves, 7 C. and P. 36 (b).

When one of the plaintiff's witnesses stated on cross-examination facts not strictly evidence, but which might prejudice the plaintiff, it was held that unless the defendant applied to strike them out of the judge's notes, the plaintiff was entitled to re-examine upon them. Blewett v. Tregoning, 3 A. and E. 554 (c).

Memorandum to refresh witness's memory.] It has already been stated, that a witness may refer to an informal examination taken down by himself, in order to refresh his memory. Ante, p. 58. So he may refer to any entry or memorandum he has made shortly after the occurrence of the fact to which it relates, although the entry or memorandum would not of itself be evidence. Kensington v. Inglis, 8 East, 289; as an unstamped paper, Maughan v. Hubbard, 8 B. and C. 14 (d). But a witness cannot refresh his memory by extracts from a book, though made by himself; Doe v. Perkins, 3 T. R. 749; nor from a copy of a book;

stages of the cause, so that the adverse party may call the same witness to prove his case, and for that purpose ask him leading questions. Et seq.

(a) Eng. Com. L. Rep. vi. 120. (b) ld. xxxii. 426. (c) Id. xxx. 151. (d) Id. xv. 147.

for the rule requiring the best evidence makes it necessary to produce the original, though used only to refresh the memory. Per cur. Burton v. Plummer, 2 A. and E. 343-4 (1) (a).

Where a witness on looking at a written paper has his memory so refreshed, that he can speak to the facts from a recollection of them, his testimony is clearly admissible, although the paper may not have been written by him. Phill. Ev. 895, 8th ed., and the cases there cited.

Where the witness cannot speak without referring to a book, the book must be produced in court. Per Coleridge, J., Howard v. Canfield, 5 Dowl. P. C. 417. If produced, the counsel for the other party has a right to see it, and cross-examine from it, Hardy's case, 24 How. St. Tr. 824; or he may look at it and ask when it was written, without being bound to put it in evidence. Ramsden's case, 2 C. and P. 603 (b). If he crossexamines to other entries than those referred to by the witness he makes them part of his own evidence. Per Gurney B., Gregory v. Travenor, 6 C. and P. 281 (c).

Questions subjecting witness to a civil suit.] Whether a witness was bound to answer questions which might subject him to a civil action, or charge him with a debt, was formerly much doubted (2); but by statute 46 Geo. 3, c. 37, it is declared and enacted, that a witness cannot by law refuse to answer any question relevant to the matter in issue, the answering of which has no tendency to expose him to a penalty or forfeiture of [*159] any nature whatsoever, by reason only or on the sole ground that the answering such question may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit, either at the instance of his Majesty or any other person. The Statute does not extend to compel parties, who stand in the situation of parties to the suit (as a rated inhabitant, in case of an appeal,) to give evidence. R. v. Inhabitants of Woburn, 10 East, 395, (decided before the passing of the 54 Geo. 3, c. 170.)

Questions subjecting witness to a forfeiture.] A witness is priviledged from answering any question, the answer to which might subject him to a forfeiture of his estate. The declaratory statute (46 Geo. 3, c. 37, supra) implies that a witness may legally refuse to answer any question which has a tendency to a forfeiture of any nature whatsoever. Phill. Ev. 916, 8th ed. So it is an established rule in courts of equity, that a party is not bound to answer, so as to subject himself to any forfeiture of interest. Id. Mitford on Eq. Pl. 157-163.

Questions subjecting witness to penalties or punishment, &c.] A witness cannot be compelled to answer any question, which has a tendency to expose him to a penalty, or to any kind of punishment, or to a criminal charge. Phill. Ev. 914, 8th ed. Thus in an action for a libel,

(1) Holladay v. Marsh, 2 Wend. 142. 11 Wend. 477.

Lawrence v. Barker, 5 Pick. 301. Feetu v. Heath,

(2) That a mere civil liability does not render the witness incomptent, see, Gorham v. Carrol, 5 Litt. 221. Black . Crouch, Id. 226. State v. M'Donald, 1 Coxe, 332. Stoddart's Lessee v. Manning, 2 Har. & G. 147. Bull v. Loveland, 10 Pick. 9. Baird v. Cochran, 4 S. & R. 397. Nass v. Van Swearingen, 7 S. & R. 192. Copp Upham, 3 N. Hamp.

(a) Eng. Com. L. Rep. xxxix. 113. (b) Id. xii. 283. (c) Id. xxv. 397.

in the shape of an extra-judicial affidavit sworn before a magistrate, the clerk to the magistrate was not compelled to answer the question, whether he had written the affidavit at the desire of the defendant, on the ground that it tended to criminate himself (1). Malony v. Bartlett, 3 Campb. 210. So on an appeal against an order of bastardy, a person cannot be compelled to confess himself the father of a bastard child. R. v. St. Mary, Nottingham, 13 East, 58 (n.) Nor can the prosecutrix, on an indictment for rape, be compelled to answer a question, whether she has had criminal intercourse with a particular individual. Hodgson's case, Russ. and Ry. C. C. 211 (a). Upon the same principle, an accomplice who is admitted to give evidence against his associate in guilt, though bound to make a full and fair confession of the whole truth, respecting the subject matter of the prosecution, is not bound to answer with respect to his share in other offences, in which he was not connected with the prisoner, for he is not protected from a prosecution for such offences. West's case,

O. B. 1821; Phill. Ev. 28, 914 (n.) 8th ed. So a witness cannot be called upon to answer a question which subjects him to the penalties of usury. Cates v. Hardacre, 3 Taunt. 424. See Jackson v. Benson, 1 Y. and J. 32. But if the time limited for the recovery of the penalty has expired, the witness may be compelled to answer. Roberts v. Allatt, M. and M. 192 (b).

It is not necessary, in order to render the question objectionable, that it should directly criminate the witness; it is sufficient if it has a tendency to do so (2). Thus where there was a question whether there had been usury in a bill of exchange, a witness being asked whether the bill had ever been in his possession before, objected to the question, and Mansfield, C. J., refused to compel him to answer the question, [ *160 ] observing that it went to connect the witness with the bill, and might be a link in a chain. Cates v. Hardacre, 3 Taunt. 424. Lord Eldon, also, in Paxton v. Douglas, 19 Ves. 227, expressed an opinion that a party should be protected from questions, not only that have a direct tendency to criminate him, but that form one step towards it. See also Claridge v. Hoare, 14 Ves. 59; Swift v. Swift, 4 Hagg. Eccl. R. 154. S. P. per Lord Tenterden, C. J., Slaney's case, 5 C. and P. 213 (c).

It has been held, however, by Lord Abinger, C. B. that a vestry clerk

159. Hays v. Richardson, 1 Gill. & J. 316. Naylor . Semmes, 4 Id. 273. Commonwealth v. Thruston, 7 J. J. Marsh. 63. Taney v. Kemp, 4 Har. & J. 348. Planters' Bk. v. George, 6 Mart. 679, overruling Navigation Co. v. N. Orleans, 1 Mart. 23.

Contra, Benjamin v. Hathaway, 3 Conn. 528. Storrs v. Wetmore, Kirby, 203. Starr v. Tracey & al., 2 Root, 523. Cook v. Corn, 1 Overton, 240. And see Mauran v. Lamb, 7 Cowen, 174.

A witness is compellable to produce a paper, though it may subject him to pecuniary loss. Bull v. Loveland, 10 Pick. 9.

(1) U. S. v. Craig, 4 Wash. C. C. Rep. 229. Southard v. Rexford, 6 Cowen, 254. Grannis v. Brandon, 5 Day, 260. People v. Herrick, 13 Johns. 82.

(2) The witness and not the Court is the proper judge whether a question put to him has a tendency to criminate him. State v. Edwards, 2 Nott & M'C. 13. The Court will instruct him to enable him to determine, and if the answer form one link in a chain of testimony against him, he is not bound to answer. Ibid.

The following principles were laid down by the late Chief Justice of the United States, in Burr's Trial:

It is the province of the Court to judge whether any direct answer to the question which may be proposed, will furnish evidence against the prisoner. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish mat

(a) 1 Eng. C. C. 211. (b) Eng. Com. L. Rep. xxii. 288. (e) Id. xxiv. 285.

cannot refuse to produce the vestry book kept in pursuance of the 58 Geo. 3, c. 69, s. 2, on the ground that it may criminate himself. Bradshaw v. Murphy, 7 C. and P. 612 (a).

Questions subjecting a witness to penalties or punishment, &c.— whether they may be put.] Whether questions, the answers to which would expose himself to punishment, ought not to be allowed to be put, or whether the witness ought merely to be protected from answering such questions, does not appear to be settled. In Reading's case, 7 How. St. Tr. 226, it was decided that a question tending to charge a witness with a criminal offence ought not to be put, although he had been pardoned. Lord Chief Justice North said, "If he hath not his pardon, his life is in danger; if he hath, neither his life nor name must suffer, and therefore such questions must not be asked him." Although this decision has been remarked upon, and it has been said that it ought not to be considered binding, from the nature of the trial and the period at which it took place (see Moo. and Malk. N, P. C. 493, n.), yet that observation must, it seems, be confined to the rejection of the question after the witness had been pardoned. In Cundell v. Pratt, Moo. and M. 108 (b), where the witness was asked whether she had been guilty of incest with a particular individual, Best, C. J., prohibited the question. So where on a trial for high treason, one of the witnesses was asked a question tending to show that he had been guilty of bigamy, in order to discredit him, Lord Ellenborough, observed, "You may ask the witness whether he has been guilty of such a crime, this indeed would be improperly asked, because he is not bound to criminate himself; but if he does answer promptly, you must be bound by the answer which he gives." Watson's case, 2 Stark. N. P. C. 151 (c), sed vide post.

On the other hand, there are not wanting authorities to show that even where the question goes to criminate the witness, it may yet be put, although he cannot be compelled to answer it. This appears to have been the opinion of Bayley, J., in Watson's case, 2 Stark. N. P. C. 153 (d). And the same learned judge is said to have ruled that a witness may be asked a question the answer to which may subject him to punishment, but that he is not compellable to answer it; and that all other questions for the purpose of impeaching a witness's character, may not only be put, but must be answered. Holding's case, O. B. 1821, Archb. C. L. 102, 2d ed. It may, however, be doubted, how far this decision is cor[*161] rectly reported, *especially with regard to the concluding position. In a text book of great value, it is said that it seems such questions may be put. 2 Russ. 625, 6, 2d ed. In the same work it is added, that if the imputation contained in the question be so connected with the inquiry and the point in issue, that the fact may be proved by other evidence, and the adverse party intends to call witnesses for that purpose, the witness proposed to be discredited must be asked whether he has been guilty of the offence imputed.

Upon principle it would seem that questions tending to expose the wit

ter for that conviction. In such a case the witness must himself judge what his answer will be, and if he say on oath he cannot answer, without accusing himself, he cannot be compelled to answer. 1 Burr's Trial, 245. See Parkhurst v. Lowton, 2 Swanst. 215.

(a) Eng. Com. L. Rep. xxxii. 654.

(b) Id. xiv, 285. n. (c) Id. iii. 290. (d) ld.

ness to punishment, may be put, as well as questions tending to degrade his character (1). The ground of objection in the first case is not that the question has a tendency to degrade him, but that advantage may be taken of his answer in some future proceeding against him, and the rule that no person is bound to accuse himself is urged. This objection is, however, completely removed by permitting the witness not to answer the question, for his silence would not in any future proceeding be any admission of guilt. The question may then be regarded as one simply tending to degrade the witness, and would come within the rule which appears to be now well established, that it may be put, though the witness is not compellable to give an answer, or that if he does give an answer, the party examining him must be satisfied with it.

This point appears to have been settled in the law of Scotland, by modern determinations; and it is now held in that country, that it is competent to ask a witness whether he has been engaged in any specific crimes, although they have no connexion with the crime under investigation; but it is also held to be the privilege of the witness to decline answering, according to the rule Nemo tenetur jurare in suam turpitudinem. In the case of the Cupar rioters, a witness was asked whether he had ever been engaged in the lifting of dead bodies. Lindsay's case, 1829, Alison's Prac. Cr. Law of Scotl. 527. And in Burke's case, Syme, 365, 367, Alison, 527, the court allowed Hare, the witness, to be asked whether he had ever been engaged in any other murder, expressly warning him that he was at liberty to decline answering, which he accordingly did.

Questions subjecting a witness to penalties, punishment, &c.-consequence of answering.] Answers given to questions to which the witness might have demurred, may be given in evidence against him. Smith v. Beadnell, 1 Campb. 30. If the witness answers questions on the examination in chief, tending to criminate himself, he is bound to answer on the cross-examination, though the answer may implicate him in a transaction affecting his life. Per Dampier, J., Winchester Sum. Ass. 1815, Mann. Dig. pl. 222, Witness, p. 336, 2d ed. So, if the witness begins to answer, he must proceed. On a trial for libel, a witness was asked whether he had not furnished the editor of a newspaper with the report. He answered one or two questions on the subject, when, being further pressed, he appealed to the court for protection, but Abbott, C. J., said, "You might have refused to answer at all, but having partially answered, *you are now bound to give the whole truth." East v. Chapman, [ *162 ] M. and M. 47 (a), 2 C. and P. 571 (b), S. C. So Best, C. J., laid it down, that if a witness, being cautioned that he is not compellable to answer a question which may tend to criminate him, chooses to answer it, he is bound to answer all questions relative to that transaction. Dixon v. Vale, 1 C. and P. 279 (c); see also Austin v. Poiner, 1 Simons, 348 (2).

Questions subjecting a witness to penalties or punishment, &c.-consequence of not answering.] Where a witness is entitled to decline

(1) Carnaghan's case, 6 Rogers' Rec. 45.

(2) The State v. R., 4 N. Hamp. 562.

(a) Eng. Com. L. Rep. xxii. 244. (b) Id. xii. 268. (c) Id. xi. 391.

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