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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 o. Richardson, 1 Gill. & J. 316. Naylor o. Semmes, 4 Id. 273. Commonwealth 0. Thruston, 7 J. J. Marsh. 63. Taney o. Kemp, 4 Har. & J. 348. Planters' Bk. v. George, 6 Mart. 679, overruling Navigation Co. v. N. Orleans, 1 Mart. 23.
Contra, Benjamin o. Hathaway, 3 Conn. 528. Storrs v. Wetmore, Kirby, 203. Starr v. Tracey & al., 2 Root, 528. Cook 0. 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 0. Loveland, 10 Pick. 9.
(1) U. S. o. Craig, 4 ash. C. C. Rep. 229. Southard v. Rexford, 6 Cowen, 254. Grannis o. Brandon, 5 Day, 260. People o. 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 o. 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. (6) Eng. Com. L. Rep. xxii. 288. (c) 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 bim.” 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 (6), 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 o. 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 bim must be satisfied with it.
This point appears to have been settled in the law of Scotland, by inodern 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 turpitudi
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, i 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 iinplicate 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, i 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. Rep. xxii. 244
(b) Id. xii.
8. (c) Id. xi, 391,
answering a question, and does decline, the rule is said by Holroyd, J., to be, that this not answering can have no effect with the jury. Watson's case, 2 Stark. 157 (a). So where a witness demurred to answer a question, on the ground that he had been threatened with a prosecution respecting the matter, and the counsel in his address to the jury, remarked upon the refusal, Abbott, C. J., interposed and said, that no inference was to be drawn from such refusal. Rose v. Blakemore, Ry. and Moo. N. P. C. 384 (b). A similar opinion was expressed by Lord Eldon. Lloyd v. Passingham, 16 Ves. 64; see the note Ry. and Moo. N. P. C. 385 (c!. However, it is said by Bayley, J., in Watson's case, 2 Stark. 153 (d), “If the witness refuse to answer, it is not without its effect with the jury. If you ask a witness, whether he has committed a particular crime, it would perhaps be going too far to say, that you may discredit him if he refuse to answer; it is for the jury to draw what inferences they may.”
Questions subjecting witness to penalties or punishment, &c.-objection must be taken by the witness himself.] The privilege of objecting to a question, tending to subject the witness to penalties or punishment, belongs to the witness only, and ought not to be taken by counsel, who will not be allowed to argue it. Thomas v. Newton, M. and M. 48 (n.) (e); S. P. Adey's case, I Moo. and R. 94, Lord Tenterden, C. J.(1).
Whether a witness is bound to answer questions tending to degrade him.] The point has frequently been raised and argued, whether a witness, whose credit is sought to be impeached on cross-examination, is bound to give an answer to the questions put to him with that view. The doubt only exists where the questions put are not relevant to the matter in issue, but are merely propounded for the purpose of throwing light on the witness's character; for if the transactions to which the witness is interrogated, form any part of the issue, he will be obliged to give evidence, however strongly it may reflect upon his character. Phill. Ev.916, 8th ed.
The first point to be considered on this subject is, whether questions not relevant to the matter in issue, and tending to degrade the character of the witness, are allowed to be put. There does not appear to be any authority in the earliest cases for the position, that the questions themselves are inadmissible upon cross-examination. In Cook's case, 13 How. St. ( *163 ] Tr. 334, 1 Salk. 153, S. C. Treby, *C. J., appears to admit the legality of the practice, adding, that the witnesses had been obliged to
In Sir John Friend's case, 11 How. St. Tr. 1331, the court held that a witness could not be asked whether he was a Roman Catholic, because he might by his answer subject himself to severe penalties. In Layer's case, 16 How. St. Tr. 161, a question tending to degrade the witness was proposed to be asked on the voire dire, and Pratt, C. J., said, “ It is an objection to his credit, and if it goes to his credit, must he not be sworn, and his credit go to the jury?” These, therefore, are only au
(1) U. S. o. Craig, 4 Wash. C. C. Rep. 729. Southard o. Rexford, 6 Cowen, 254. Brown's Ex.o. Durbin's Adm., 5 J. J. Marsh. 174. Johnston o. Goss, 2 Yerg, 110. (a) Eng. Com. L. Rep. iii. 293. (b) ld. xxi. 466. (c) Id. (d) Id. ii. 291. (e) Id. xxii. 244
thorities, to show that a witness will not be compelled to answer such questions. Many later decisions show that such questions are admissible, though the witness cannot be called upon to answer them. Thus, on an application to bail a prisoner, the court allowed the counsel for the prosecution to ask one of the bail, whether he had not stood in the pillory for perjury. The court said there was no objection to the question, as the answer could not subject the bail to any punishment. Edward's case, 4 T. R. 440. On Watson's case for high treason, such questions were frequently asked, “and it may be inferred,” says Mr. Phillipps, “ from the opinion of the judges on an argument in that case, that such questions are regular.” Gurney's report of Watson's trial, 288—291 ; Phill. Ev. 922, (n.) 8th ed. ; see also Lord Cochrane's trial, 419, by Gurney ; Hardy's case, 24 How. St. Tr. 726, 11 East, 311. In the following case, Best, C. J., laid down the same rule in these words: “The rule I shali always act upon is, to protect witnesses from questions, the answers to which would expose them to punishment; if they are protected beyond this, from questions which tend to degrade them, many an innocent man may suffer. Cundell v. Pratt, M. and M. 108 (a). So it is stated by Mr. Phillipps, that Lord Ellenborough continually permitted such questions to be asked without the slightest disapprobation, and that the common practice of courts of justice, before the most approved judges, will abundantly furnish instances of such questions being put and not being disallowed as contrary to the rules of law; "and it is difficult to see,” Mr. Phillipps adds, “ how a question can properly be deemed illegal, when, if the witness chooses to answer, his answer must undoubtedly be received as evidence.” Phill. Ev. 922, 8th ed.
There are, however, one or two decisions, countenancing the opinion that questions tending to degrade the character of a witness, shall not be allowed to be put (1). Upon an indictment for an assault, a common informer and man of suspicious character having been called, was asked on cross-examination, whether he had not been in the house of correction. Upon this Lord Ellenborough interposed, and said that the question should not be asked. That it had been formerly settled by the judges, among whom were Chief Justice Treby and Mr. Justice Powell, both very great lawyers, that a witness was not bound to answer any question, the object of which was to degrade, or render him infamous. He added, that he thought the rule ought to be adhered to, as it would be an injury to the administration of justice, if persons who came to do their duty to the public might be *subjected to improper investigation. Lewis's case, ( *164 ] 4 Esp. 225. Upon this case it may be observed, that the authorities referred to by Lord Ellenborough do not go the length of excluding the question, but merely decide that the witness is not bound to answer. As already stated also, Lord Ellenborough was in the frequent habit of allowing such questions to be put, (supra,) and on these grounds Mr. Phillipps is disposed to think that the question had already been put and answered,
(1). A witness is not bound to give answers which may stigmatize or disgrace him. State o. Bailey, 1 Pennington, 415. Vaughn o. Perine, 2 Id. 728. Baird o. Cochran, 4 S. and R. 400. Resp. o. Gibbs, 3 Yeates, 429, 437. Galbraith o. Eichelberger, Id. 515. Bell's case, 1 Browne, 376. Saltonstall's case, 1 Rogers' Rec. 134. Stout o. Russell, 2 Yeates, 334. Peo. ple o. Herrick, 13 Johns. 82.
A witness is not bound to answer any questions which may impeach his conduct as a pub. lic officer. Jackson o. Humphrey, 1 Johns. 498. Marbury d. Madison, 1 Cranch, 144.
(a) Eng. Com. L. Rep. xiv. 285, n.