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 answer. 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. v. Craig, 4 Wash. C. C. Rep. 729. Southard v. Rexford, 6 Cowen, 254. Brown's Ex. v. Durbin's Adm., 5 J. J. Marsh. 174. Johnston v. Goss, 2 Yerg. 110.

(a) Eng. Com. L. Rep. iii. 293. (b) ld. xxi. 466. (c) Id. (d) Id. iii. 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; Har-dy'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 shall 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 v. Bailey, 1 Pennington, 415. Vaughn v. Perine, 2 Id. 728. Baird v. Cochran, 4 S. and R. 400. Resp. v. Gibbs, 3 Yeates, 429, 437. Galbraith v. Eichelberger, Id. 515. Bell's case, 1 Browne, 376. Saltonstall's case, 1 Rogers' Rec. 134. Stout v. Russell, 2 Yeates, 334. People v. Herrick, 13 Johns. 82.

A witness is not bound to answer any questions lic officer. Jackson v. Humphrey, 1 Johns. 498.

which may impeach his conduct as a pubMarbury v. Madison, 1 Cranch, 144.

(a) Eng. Com. L. Rep. xiv. 285, n.

and being repeated, his lordship thought it necessary to interpose for the protection of the witness. Phill. Ev. 921 (nx) 8th ed. In another case, where a witness was asked on cross-examination, whether she lived in a state of concubinage with the plaintiff, Lord Alvanley interposed, and gave the following opinion on the subject of such questions: "He thought questions as to general conduct might be asked, but not such as went immediately to degrade the witness; he would therefore allow it to be asked, whether she was married, as she might be married to the plaintiff. But having said she was not, he would not allow it to be asked, had she slept. with him?" He added, “I do not go so far as others may. I do not say that a witness may not be asked to what may tend to disparage him, that would prevent an investigation into the character of the witness, which may often be of importance to ascertain. I think those questions only should not be put which have a direct or immediate effect to disgrace or parage the witness." Macbride v. Macbride, 4 Esp. 242. Upon an indictment for a rape, the prosecutrix on cross-examination was asked, "Whether she had not before had connexion with other persons, and whether not with a particular person (named)." This question was objected to, and the point was reserved for the opinion of the judges, who held the objection good, Hodgson's case, Russ. and Ry. C. C. 211 (a). It does not appear in the latter case, whether the question itself was objected to, or only that the witness was not bound to answer it, but both in this and the preceding case of Macbride v. Macbride, it seems that the questions were improper to be put, as they imputed to the witness an offence punishable by the ecclesiastical law. Upon the same ground, Best, C. J., interposed to prevent a witness being asked whether she lived in a state of incestuous concubinage with a particular person. Cundell v. Pratt, M. and M. 108 (b). Where, in an action for seduction, the party seduced was asked whether she had not been criminal with other men, Lord Ellenborough said, this was a question she ought not to answer, and that the same point having been referred to the judges, they were all of the same opinion. Dodd v. Norris, 3 Campb. 519.

With regard to compelling a witness to answer questions tending to degrade him, (such questions not being relevant to the matter in issue,) there appear to be only two authorities that a witness is so bound. In Holding's case, O. B. 1821, Arch. Cr. Pl. 102, 2d ed., Bayley, J., is reported to have ruled, that though a witness may refuse to answer a question exposing him to punishment, yet all other questions, for the purpose of impeaching his character, may not only be put, but must be answered. So [*165] where in a civil cause, a witness *b ing asked on cross-examination, whether he had not been tried for theft, refusing to answer, and appealing to Lord Ellenborough, whether he was bound to answer, his lordship said, "If you do not answer the question I will commit you," adding, "you shall not be compelled to say whether you were guilty or not." Frost v. Holloway, 1818, Phill. Ev. 922, (n.) 8th ed. Assuming that a question is not irregular, merely from its tendency to degrade the witness's character, and that the witness is not compellable to answer, yet if he chooses to give an answer, the party who asks the question must be bound by his answer, and cannot be allowed to falsify it by evidence. Phill. Ev. 923, 8th ed.; and see Watson's case, ante, p. 160, and infra.

(a) 1 Eng. C. C. 211. (b) Eng. Com. L. Rep. xiv. 285, n.

Evidence of general character.] Where a witness is called to impeach the general character for veracity of another witness, he cannot be examined as to particular facts. The proper question is, "From your knowledge of his general character, would you believe him on his oath?" (1) If the witness state that he has seen him before a magistrate, and from what passed there he would not believe him on his oath, it is not evidence. Mawson r. Hartsink, 4 Esp. 102. "The rule is," says Mr. Justice Bayley, "that a party against whom a witness is called, may examine witnesses as to his general character, but he is not allowed to prove particular facts in order to discredit him." Watson's case, 2 Stark. N. P. C. 152 (a). "The reason," says Pratt, C. J., "why particular facts are not to be given in evidence, to impeach the character of a witness is, that if it were permitted, it would be impossible for a witness having no notice of what will be sworn against him, to come prepared to give an answer to it; and thus the character of witnesses might be vilified, without their having any opportunity of being vindicated." Layer's case, 14 How. St. Tr. 285. But no such injustice attends an inquiry into the general character of a witness. "General character," says Chief Justice Gibbs, "is the result of general conduct, and every witness who presents himself in a court of justice undertakes for that." Sharp v. Scoging, Holt's N. P. C. 541 (b). In answer to general evidence of bad character for veracity, the witnesses called to prove it may be examined as to their means of knowledge, Mawson v. Hartsink, 4 Esp. 103; and the grounds of their opinion; or the other party may attack their general character, and by fresh evidence support the character of his own witness. Phill. Ev..925.

In the common case where a witness for the plaintiff asserts one thing, and a witness for the defendant asserts another, and direct fraud is not imputed to either, evidence to general character is not admissible. Bishop of Durham v. Beaumont, 1 Campb. 207.

When a party may contradict his own witness.] It is clear that the party calling a witness, will not be allowed to give general evidence that he is not to be believed on his oath (2). Ewer v. Ambrose, 3 B. and C.

(1) Jackson v. Osborn, 2 Wend. 555. Commonwealth v. Moore, 2 Dana, 402. Rixey v. Bayse, 4 Leigh, 330. Wike v. Lightner, 11 S. & R. 198. Swift's Evidence, 143. When character is put in issue, evidence of particular facts may be admitted, but not where it comes in collaterally. Commonwealth v. Moore, 2 Dana, 402. See Sacket v. May, 3 lb. 80. To discredit a witness, it may be asked, whether he is not a man of bad moral character; State v. Stallings, 2 Hayw. 300. Hume v. Scott, 3 Marsh. 261. (Contra, Skillinger v. Howell, 5 Halst. 309.) If such question be asked, the impeaching witness may be cross-examined as to his character for veracity. Noel v. Dickey, 3 Bibb, 263. See Mobely v. Hamit, 1 Marsh. 591. Kimmel v. Kimmel, 3 S. & R. 336.

The character for veracity of a female witness may not be impeached by evidence of her general character for chastity. Gilchirst v. M'Kee, 4 Watts, 380. Jackson v. Lewis, 13 Johns, 504. Commonwealth v. Moore, 3 Pick. 194. See Commonwealth v. Murphy, 14 Mass. 387. Sword v. Nestor, 3 Dana, 453. 2 Starkie's Ev. New Ed. 216, n. 1.

The credit of a witness may be impeached by showing that he was intoxicated at the time the events happened to which he testifies. Tuttle v. Russel, 2 Day, 201, though general character for intemperance is inadmissible. Brindle v. M'Ilvaine, 10 S. & R. 282.

Neighborhood is co-extensive with intercourse. It is not necessary that the character testified to, should be proved to be that of the place where he resides. Chess v. Chess, 1 Pennsylvania Rep. 32.

A party calling a witness as to character, is confined to general questions, but the opposite party may ask particulars. People v. De Graff, 1 Wheeler's C. C. 205. People v. Clark, Ibid. 295.

(2) Lawrence v. Barker, 5 Wend. 301. Jackson v. Varick, 7 Cowen, 238. De Lisle ́v. (a) Eng. Com. L. Rep. iii. 290. (b) Id. iii. 180.

750 (a), Bull. N. P. 297. But where a witness is called, and makes statements contrary to those which are expected from *him, the party calling him may prove the facts in question by other witnesses. Alexander v. Gibson, 2 Campb. 555; Lowe v. Joliffe, 1 W. Bl. 365; Ewer v. Ambrose, 3 B. and C. 749 (b); 4 B. and Ad. 193 (c). Where a witness is contradicted by the party calling him, as to certain facts, it is not necessary that the remainder of his evidence should be fepudiated. Bradley v. Ricardo, 8 Bingh. 57 (d).

Whether the party calling a witness, who gives evidence contrary to what is expected from him, may prove contradictory statements previously made by the witness, does not appear to be well settled (1). Where a witness made such a statement, and the party calling him proved a contradictory statement made by the witness in an answer to a bill in chancery, the Court of King's Bench held, that the judge had improperly left it to the jury to say whether they believed the witness's statement at the trial, or that in his answer; the latter, at all events, not being evidence of the facts stated in it. Ewer v. Ambrose, 3 B. and C. 746 (e). In this case Holroyd, J., observed, "The answer might, perhaps, be admissible, if the effect of it only were to show that as to the particular fact sworn to at the trial, the witness was mistaken. But if its effects were to show that the witness was not worthy of credit, then it was not admissible." Id. 750. Where the prisoner's mother, whose name was on the back of the indictment, was, by the direction of the judge, called as a witness for the prosecution, and her evidence was in favor of the prisoner, and materially differing from her deposition before the coroner, the judge thought it proper to have that deposition read, and stated to the jury that her testimony was not to be relied upon. The point being reserved for the opinion of the judges, they were all of opinion, that under the circumstances of the case, it was competent to the judge to order the depositions to be read, to impeach the credit of the witness. Lord Ellenborough and Lord Chief Justice Mansfield thought that the prosecutor had the same right. royd's case, Russ. and Ry. C. C. 88 (f). And where, in an action of trespass, one of the witnesses for the plaintiff swore contrary to the statement which he had made before the trial to the plaintiff's attorney, Lord

Old

Priestman, 1 Brown, 176. Cowden v. Reynolds, 12 S. & R. 281. Queen v. The State, 5 Har. & J. 232. Perry v. Massey, 1 Bailey, 32. Winslow v. Mosely, 2 Stewart, 137. Webster v. Lee, 5 Mass. 334. Steinbach v. Columbian Ins. Co., 2 Caines, 129. Stockton v. Dernutt, 7 Watts, 39.

But an attesting witness is a witness of the law, and may be discredited by any one who examines him. Crowell v. Kirk, 3 Devereux, 355. See Jackson v. Varick, 7 Cowen, 238. Contra, Whitaker v. Salisbury, 15 Pick. 534. Patterson v. Schenck, 3 Green, 434. Booker v. Bowles, 2 Blackf. 90.

It has been held in North Carolina, that the Attorney General may produce evidence to discredit a witness for the Commonwealth. State v. Morris, 1 Hayw. 438. But see Brown's case, 3 Rogers' Rec. 151, and Queen v. The State, 5 Har. & J. 232.

A witness subpoenaed by the plaintiff, but not examined by him but by defendant, may be impeached by the plaintiff. Beebe v. Sinker, 2 Root, 160. The Commonwealth v. Boyer, 2 Wheeler's C. C. 151.

(1) Although a party calling a witness shall not be allowed to impeach his general character, yet he may show that he has told a different story at another time. Cowden v. Reynolds, 12 S. & R. 281.

But a party cannot, after examining a witness, give in evidence his former testimony and declarations, ostensibly to discredit him, but in truth to operate as independent evidence. Smith v. Price, 8 Watts, 447.

(a) Eng. Com. L. Rep x. 220.

20.

(b) Id. x. 220. (c) Id. xxiv. 47. (d) Id. xxi. 220. (e) Id. x. (f) 1 Eng. C. C. 82.