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case, Sarum Summ. Ass. 1821, 1 Stark. Ev. 63, 2d ed. It does not, however, *appear, that in this case, application was made to allow [ *150 ] the witness to remain. Ry. & Moo. N. P. C. 431 (a). So as it seems, a physician, or other professional, person who is called to give an opinion as a matter of skill, upon the circumstances of the case, may be allowed to remain. By the law of Scotland, a medical witness is directed to remain in court during the trial, till the medical opinion of other witnesses begins. Alison's Prac. Crim. Law of Scotl. 489.
If a witness remains in court after an order inade for the witnesses on both sides to withdraw, it is an inflexible rule in the Court of Exchequer, that such a witness shall not be allowed to be afterwards examined. Att. Gen. v. Bulpit, 9 Price, 4. It appears, however, that the rule in the Exchequer is confined to revenue cases, and that, in other cases, the rule is the same as it is in other courts, namely, that the rejection of the evidence is entirely in the discretion of the judge ; per Coleridge, J., Thomas v. David, 7 C. and P. 350 (6); and that it is for him to say, whether, under all the circumstances of the case, he will relax the order which has been given. Parker v. M'William, 6 Bingh. 683 (c); Colley's case, Moo. and Malk. 329 (d). This is said to have been so ruled by Bayley, J., in a criminal case, on the Northern circuit, after consulting with Holroyd, J. Moo. and M. 329 (1).
Where all the witnesses had been ordered out of court, but one of them came into court, and heard the evidence of another witness, Taunton, J., allowed him to be examined as to such facts, as were not spoken to by the other witness. Beamon v. Ellice, 4 C. and P. 585 (e). But in a later case, it was said by Park, J., that in a criminal case, he would always reject a witness remaining in court, after all the witnesses on both sides had been ordered to leave it. Wyld's case, 6 C. and P. 380 (f).
In a case before Alderson, B., that learned judge stated that the circumstance of a witness having remained in court in disobedience of an order to go out, is no ground for rejecting his testimony, but merely affords matter of observation upon it, and the learned Baron referred to a case in the K. B., where a new trial had been granted, because the evidence of a witness had been rejected on that ground. Cooke v. Nethercote, 6 C. and P. 741 (g).
“It is almost a matter of right for the opposite party to have a witness out of court while a discussion (legal argument) is going on as to his evidence.” Per Coleridge, J., Murphy's case, 8 C. and P. 307 (h).
Calling all witnesses whose names are on the indictment, &c.] Although a prosecutor is not in strictness bound to call every witness whose name is on the back of the indictment, Simmonds' case, 1 C. and P. 84 (i), Whitbread's case, Id. 84 (n.) (k), yet it is usual to do so, in order to afford the prisoner's counsel an opportunity to cross-examine them; Siinmond's case, supra; and if the prosecutor will not call them the judge in his discretion may. Id. Taylor's case, Id. (n.) (1); Bodle's case, 6 C. and P. 186 (m). The practice now alınost invariably adopted is, for the prosecutor's counsel to put the witnesses *he has not called into the [ *151 ]
(1) State v. Sparrow, 2 Murph. 487. (a) Eng. Com. L. Rep. xxi. 482. (b) Id. xxxii. 537. (c) Id. xix. 204. (d) Id. xxii. 325, (C) Id. xix. 537. (f) Id. xxv. 447 (g) Id. xxv. 627. (h) Id. xxxiv. 402. (i) Id. xi. 322. (k) Id. (1) Id. (m) ld. xxv. 347..
box for the purpose of being cross-examined, or at least to offer to do so should the other side think it desirable. It seems that where a witness is called at the instance of the prisoner's counsel, and the counsel for the prosecution does not ask him a question, that the latter is entitled to examine the witness after he has been examined on the part of the prisoner. Harris's case, 7 C. and P. 581 (a). But from a case there referred to, it would appear to be otherwise, where, on the refusal of the counsel for the prosecution, the witness has been called by the judge. If, after the witness has been cross-examined by the prisoner's counsel, the counsel for the prosecutor puts any questions to him, this must be considered as a reexamination, and he can ask no questions which do not arise out of the cross-examination. Per Littledale, J., Beezley's case, 4 C. & P. 220 (b). Where a witness has been called at the instance of the prisoner's counsel, and cross-examined by bim, the latter will not be allowed to call witnesses to contradict the witness. Per Gaselee, J., Bodle's case, 6 C. and P.
Calling all parties present at any transaction giving rise to a charge of homicide. On a trial for murder, where the widow and daughter of the deceased were present at the time when the fatal blow was supposed to have been given, and the widow was examined on the part of the prosecution, Patteson, J., directed the daughter to be called also, although her name was not on the indictment, and she had been brought to the assizes by the other side. The learned judge observed, “Every witness who was present at a transaction of this sort ought to be called, and even if they give different accounts, it is fit that the jury should hear their evidence, so as to draw their own conclusion as to the real truth of the matter.” Holden's case, 8 C. and P. 606 (d). And it seems that the same course should be pursued even when the party is a near relative of the prisoner, as a brother, Chapman's case, 8 C. and P. 559 (e) ; or a daughter. Orchard's case, Id. (n.) (f).
In Holden's case it appeared that three surgeons had examined the body of the deceased, and that there was a difference of opinion among them. Two of them were called for the prosecution, but the third was not, and as his name was not on the indictment, the counsel for the prosecution declined calling him. Patteson, J., said, “He is a material witness who is not called on the part of the prosecution, and as he is in court, I shall call him for the furtherance of justice.” He was accordingly examined by the learned judge.
Recalling and questioning witnesses by the court.] It has already appeared (supra) that the judge may in his discretion, for the furtherance of justice, call witnesses, which the counsel for the prosecution has refused to put into the box. So he may recall witnesses that have already been examined. But where, after the examination of witnesses to facts on behalf of the prisoner, the judge (there being no counsel for the pro[ *152 ] secution) called back and examined a witness for *the prosecution, it was held that the prisoner's counsel had a right to cross-examine again if he thought it material. Per Taunton, J., Watson's case, 6 C. and P. 653 (g).
So during the progress of the trial the judge may question the witnesses, (a) Eng. Com. L. Rep. xxxii. 640. (6) Id. xix. 353. (c) Id. xxv. 347. (d) Id. xxxiv. 547.
(e) Id. xxxiv. 523. (f) Id. (g) ld. xxv. 580.
and although the prosecutor's counsel has closed his case, and the counsel for the defendant has taken an objection to the evidence, the judge may make any further inquiries of the witnesses he thinks fit, in order to answer the objection. Remnant's case, R. and R. 136.
Evidence cannot be taken in cases of felony by consent, but in cases of misdemeanor it may.] Where there were two prosecutions against the prisoner for felony, and his counsel offered to adnit the evidence taken on the first trial, as given in the second, Patteson, J., doubted whether that could be done, even by consent in a case of selony, but the learned judge directed the witnesses to be re-sworn, and read their evidence over to them from his notes. Foster's case, 7 C. and P. 495 (a). In cases of misdemeanor, evidence may be taken by consent. Per Patteson, J., Fos-, , ter's case, supra. Where, however, on an indictment for perjury, it appeared that the attornies on both sides had agreed that the formal proofs should be dispensed with, and part of the prosecutor's case admitted, Lord Abinger, C. B., said, “ I cannot allow any admission to be inade on the part of the defendant, unless it is made at the trial by the defendant or his counsel.” The defendant's counsel declining to make any admission the defendant was acquitted. Thornhill's case, 8 C. and P. 575 (6).
At what time the objection to the competency of a witness must be taken.] It was formerly considered necessary to take the objection to the competency of a witness, on the voire dire, and if once examined in chief, he could not afterwards be objected to on the ground of interest. Lord Lovat's case, 9 St. Tr. 639, 646, 704 ; Phill. Ev. 148, 8th ed.; but in modern practice the rule has been relaxed. The examination of a witness, to discover whether he be interested or not, is frequently to the same effect as his examination in chief, so that it saves time, and is more convenient to let him be sworn in the first instance in chief; and in case it should turn out that he is interested, it is then time enough to take the objection. Per Buller, J., Turner v. Pearte, 1 T. R. 719; Pengal v. Nicholson, Wightw. 64, 4 Burr. 2256. So in Stone v. Blackburne, i Esp. 37, it was said by Lord Kenyon, that objections to the competency of witnesses never come too late, but may be made in any stage of the cause (1). It was ruled, however, by Gibbs, C. J., that after a witness has been examined, and cross-examined, and has left the box, and is recalled, for the purpose of having a question put to him by the judge, it is too late to object to his competency. Beeching v. Gower, Holt, N. P. C. 314 (c); Ibid. 485 (d), 4 Burr. supra; but see per Gibbs, C. J., 8 Taunt. 458 (C). It should also be observed, that where the objection is taken upon the examination in chief, or *cross-examination, the [ *153 ] privilege of examining the party to the contents of a written instrument not produced, is not allowed, as upon an examination on the voire dire. Howell v. Lock, 2 Camp. 14.
(1) Morton o. Bealls's Adm., 2 Har. and Gill. 136. Bank of N. America o. Wikoff, 2 Yeates, 39, S. C. 4 Dall. 151. Swift v. Dean, 6 Johns. 523. Fisher o. Willard, 13 Mass. 379. Evans o. Eaton, Peters' C. C. Rep. 338. Baldwin o. West, Hardin, 50. Cole o. Cole, 1 Har. & Johns. 572. Butler v. Tufts, 13 Maine, 302. That objection to competency on the score of conviction of an infamous crime must be taken before the witness is sworn, see People o. M'Garrer, 17 Wend. 460. (a) Eng. Com. L. Rep. xxxii. 598. (b) Id. xxxiv. 532. (c) Id. iii. 117. (d) Id. iii. 164.
(e) Id. iv. 165.
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 (6).
(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 Bisberr. Hall, 3 Ohio, 465. Mifflin r. Bingham, 1 Dall. 275. Cole ». Cole, 1 Har. and John. 572. Bridge r. Wellington, 1 Mass. 219. Butler o. Butler, 3 Day's Cases, 214. Dow o. Osgood, 2 Tyler, 28. Welden o. Buck, Anthon's N. P. 10 n. Berry o. Wallin & al., 1 Overton, 107. Ray o. Mariner & ux. 2 Hayw. 385. Chance o. Hine, 6 Conn. 231. Chatfield v. Lathrop, 6 Pick. 417. Though sworn on the roire 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 o. Wood, 1 Blackf. 72. 1 Dall. supra. So when the examination on the roire dire leaves it doubtful whether the witness be or be not interested. Shannon o. The Commonwealth, 8 S. & R. 444. Galbraith r. 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 o. Burrell, 2 Rep. Const. Cy. 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. o. 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 roire dire denies his interest generally, he may be interrogated particularly as to his situation to show that he has none. Emerton o. Andrews, 4 Mass. 653. Baldwin v. West, Hardin, 50. Reed's lessee o. Dodson, 1 Overton, 396. Williams v. Matthews, 3 Cowen, 352. Contra, Moore o. Sheredine, 2 Har. & M'H. 453. But see Peter o. Beall, 4 Id. 342.
A witness who believes himself interested, when in truth he is not, is competent. The State o. Clark, 2 Tyler, 273. Long v. Baillie, 4 S. & R. 226. Fernsler v. Carlin, 3 Ib. 130. Henry o. Morgan, 2 Binn. 497. Williams v. Matthews, 3 Cowen, 352. Davis o. Barkley, 1 Harper, 63. Rodgers v. Burton, Peck, 108. 6 Conn. 371. Dellone o. Rekmer, 4 Watts, 9. Commercial Bank of Albany v. Hughes, 17 Wend. 94. Contra, Richardson's Ex'r. v. Hunt, 2 Munf. 148. Sentney o. Overton, 4 Bibb, 445. Trustees of Lansingburg o. Willard, 8 Johns. 428. Plumb v. Whiting, 4 Mass. 518. Peter o. Beall, supra. Elliott o. Porter, 5 Dana, 304,
So an honorary obligation does not render the witness incompetent. Long o. Baillie, supra, Gilpin v. Vincent, 9 Johns. 219. Carman v. Foster, 1 Ashmead, 133. Smith o. 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 o. Waite, 5 Id. 261. Vining v. Wooton, Cooke's Rep. 127. Henry v. Morgan, 2 Binn. 497. Fernsler o. Carlin, 3 S. & R. 130. Lessee of Pollock v. Gillespie, 2 Yeates, 129. Contra, Colston o. Nicholls, 1 Har. & J. 105. Anon. 2 Hayw. 340. See Patten r. 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.
(a) Eng. Com. L. Rep. iii. 293. (b) Id. ij. 418.
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, i 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 (6). 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 himn 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 bim (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 o. Platt, 7 Watts, 318. (2) Lessee of Snyder v. Snyder, 6 Binn. 483. Stratford o. Sandford & al., 9 Conn. 275.
(c) Id. 322
(d) Id. xi. 378.
(a) Eng. Com, L. Rep. xxxi. 139. (b) ld. xxii. 321.
(e) Id. xxii. 321.