ment of intention, unless they believe it wholly false; and an instruction which requires the jury to do so is error. They must consider it in connection with all the evidence. The inference which they draw from it may be strong enough to overcome any conclusion of guilty intention which they may draw from his other acts or declarations.26

One of several defendants jointly tried who becomes a witness for himself is a witness for all purposes; and his testimony while a witness in his own behalf is in no way incompetent merely because it may be injurious or beneficial to a co-defendant. The fact that, as usually happens, he tries to exonerate himself by casting the guilt upon his associates, while it may bear upon his credibility, is otherwise immaterial.27

§ 60. Cross-examination-Incriminating and disgracing questions. -The accused, when testifying in his own behalf, waives many of the peculiar constitutional privileges which belong to him as one accused of crime. It is usually provided by statute that he may be examined and cross-examined "as any other witness," and where such is the case, he will not be permitted to claim any privilege while he is a witness that is not enjoyed by other witnesses.28 In other words, the rule then is that he cannot claim as a witness the privileges which belong to him solely as the ac

of the law, by saying he did not so intend. But where acts are equivocal and become criminal only by reason of the intent with which they are done, both must unite to constitute the offense, and both facts must be proved. In such cases, unless the intent is proved, the offense is not proved. As the criminal intent may be and usually is inferred from the declarations and conduct of the accused, he is permitted to disavow the imputed purpose and repel the presumption." Smith, C. J., in State v. King, 86 N. Car. 603; Jackson v. Commonwealth, 96 Va. 107, 30 S. E. 452; Wohlford v. Feople, 148 Ill. 296, 36 N. E. 107; Crawford v. United States, 30 App. D. C. 1; State v. Barber, 13 Idaho 65,

88 Pac. 418; State v. Palmer, 88 Mo.
568; Dunbar v. Armstrong, 115 Ill.
App. 549; Filkins v. People, 69 N. Y.
101, 25 Am. 143; State v. Tough, 12
N. Dak. 425, 96 N. W. 1025; White
v. State, 53 Ind. 595; Lynch v. Peo-
ple, 137 Ill. App. 444; Ryan v. Terri-
tory (Ariz.), 100 Pac. 770; People v.
Quick, 51 Mich. 547, 18 N. W. 375.
26 Commonwealth v. Thomas (Ky.),
104 S. W. 326, 31 Ky. L. 899.

27 Richards v. State, 91 Tenn. 723, 725, 20 S. W. 533, 30 Am. St. 907.

28 Since a witness can not be required to give evidence against himself, or to testify to facts showing his commission of a public offense, accused can not be required to disclose the commission of public offenses

cused. He cannot complain if considerable latitude is allowed on his cross-examination, and, generally, he may be asked on his cross-examination the same questions as any witness.

In states where the cross-examination of the accused is not by statute expressly limited to matters brought out on his direct examination, he may be cross-examined, not only upon matters strictly relevant to the issue, but upon those which are collateral and apparently irrelevant, and which are calculated only to test the credibility and weight of his testimony.30

And the accused who testifies voluntarily in his own behalf is presumed to have done so with knowledge that he accepts the usual responsibilities of every witness and that anything he may say of an incriminating character may be subsequently used against him.31

31

The testimony of the accused voluntarily given at a coroner's inquest may be subsequently employed against him to contradict his testimony at the trial.3

81a

So where the accused having been committed as an insane person immediately after the crime voluntarily testified in his own behalf on a hearing to secure his discharge as a sane person the reception in evidence on his subsequent trial of his testimony thus given is proper, though under the constitution he is protected from criminating himself.32

§ 61. Examination as to prior imprisonment, etc.-He may be questioned as to specific facts calculated to discredit him. Thus his previous arrest,33 or indictment, or his conviction of a felony may be shown.35

v. State, 139 Ala. 144, 36 So. 718; State v. Heffernan, 28 R. I. 20, 65 Atl. 284; State v. Zdanowicz, 69 N. J. L. 619, 55 Atl. 743; Clinton v. State, 53 Fla. 98, 43 So. 312; Justice v. Commonwealth (Ky.), 46 S. W. 499, 20 Ky. L. 386; Williams v. State, 66 Ark. 264, 50 S. W. 517; Southworth v. State, 52 Tex. Cr. App. 532, 109 S.

W. 133.

34

Brandon v. People, 42 N. Y. 265. Some cases hold that the question, "Have you ever been, or how many times have you been, arrested?” can not be asked, as an arrest, involving only an unproved charge of crime, of which innocence is presumed, throws no light upon his veracity. People v. Brown, 72 N. Y. 571, 573, 28 Am. 183; People v. Crapo, 76 N. Y. 288,

a Collins v. State, 39 Tex. Cr. App. 293, 32 Am. 302; Ryan v. People, 79 441, 46 S. W. 933.

la Jones v. State, 120 Ala. 303, 25 So. 204; Steele v. State, 76 Miss. 387, 24 So. 910. (Testimony before examining magistrate.)

32

N. Y. 593, 601; State v. Huff, 11 Nev. 17, 26-28; People v. Hamblin, 68 Cal. 101, 102, 8 Pac. 687; People v. Buckley, 143 Cal. 375, 77 Pac. 169.

34

People v. Clark, 102 N. Y. 735, 8 People v. Willard, 150 Cal. 543, 89 N. E. 38; Wroe v. State, 20 Ohio St. Pac. 124. 460; People v. Gale, 50 Mich. 237, 15 N. W. 99; Bruce v. State, 39 Tex. Cr. App. 26, 44 S. W. 852; Sexton v. State, 48 Tex. Cr. App. 497, 88 S. W. 348. Contra, People v. Cascone, 185 N. Y. 317, 78 N. E. 287; Smith v. State, 79 Ala. 21.

"State v. Murphy, 45 La. Ann. 958, 13 So. 229; People v. Foote, 93 Mich. 38, 40, 52 N. W. 1036; Hanoff v. State, 37 Ohio St. 178, 180, 41 Am. 496; State v. Bacon, 13 Ore. 143, 147, 9 Pac. 393, 57 Am. 8n; People v. Ogle, 104 N. Y. 511, 514, II N. E. 53;

A statute which provides that where the accused pleads not guilty and admits a prior conviction such connection must not be referred to on the trial does not prevent the accused from being accused on cross-examination if he has been convicted of a felony.36

The accused may be asked on cross-examination if he had not heard that one of his witnesses and associates was an ex-convict.37 So, a previous imprisonment in a penitentiary, or house of correction, his prior contradictory statements, disorderly ac

39

ple v. Johnson, 57 Cal. 571, 574; State v. Minor, 117 Mo. 302, 306, 22 S. W. 1085; State v. McGuire, 15 R. I. 23, 22 Atl. 1118; State v. Farmer, 84 Me. 436, 440, 24 Atl. 985; Prior v. State, 99 Ala. 196, 13 So. 681; People v. Arnold, 116 Cal. 682, 48 Pac. 803; Farmer V. Commonwealth (Ky.), 91 S. W. 682, 28 Ky. L. 1168; State v. Heusack, 189 Mo. 295, 88 S. W. 21; State v. Plomondon, 75 Kan. 853, 90 Pac. 254; People v. Cascone, 185 N. Y. 317, 78 N. E. 287 (holding that mere indictment is irrelevant); State v. Clark, 117 La. 920, 42 So. 425. (Need not be a conviction of similar crime.) A prior conviction of an infamous crime does not deprive the accused of the absolute and arbitrary statutory right to testify in his own behalf. Williams v. State, 28 Tex. App. 301, 303, 12 S. W. 1103; Newman v. People, 63 Barb. (N. Y.) 630. It is error to permit a question to accused calling for an admission that he has been convicted in another prosecution of a similar crime where it appears he had been granted a new trial and the incriminating evidence is weak. Thompson v. United States, 30 App. D. C. 352; People v. DeCamp, 146 Mich. 533, 109 N. W. 1047, 13 Det. Leg. N. 862; People v. Soeder,

38

37 Long v. State, 72 Ark. 427, 81 S. W. 387.

38 Turpin v. Commonwealth (Ky.), 74 S. W. 734, 25 Ky. L. 90; Davis v. State, 52 Tex. Cr. App. 629, 108 S. W. 667; People v. Courtney, 31 Hun (N. Y.) 199. The testimony of the jailer and of persons who saw him in jail and the commitment are usually competent and sufficient proof of his identity with the man who was in prison. State v. Howard, 30 Mont. 518, 77 Pac. 50.

40 State v. Boyles, 80 S. Car. 352, 60 S. E. 233; State v. Hill, 45 Wash. 694, 89 Pac. 160; State v. Helm, 97 Iowa 378, 66 N. W. 751; Hicks v. State, 99 Ala. 169, 13 So. 375; Commonwealth v. Tolliver, 119 Mass. 312, 315; May v. State, 33 Tex. Cr. App. 74, 24 S. W. 910; State v. Avery, 113 Mo. 475, 21 S. W. 193; Huffman v. State, 28 Tex. App. 174, 178, 12 S. W. 588; Chambers v. People, 105 Ill. 409; Angling v. State, 137 Ala. 17, 34 So. 846.

tions,*1 or the commission of offenses similar to that charged,12 as for example, where they are contemporaneous and a part of the res gesta, attempts to bribe witnesses,** or simulation of insanity," may all be brought out by questions put to him on his cross-examination, to show what credit his evidence should receive.46

The accused may also properly be asked upon his cross-examination questions relating to and intending to show his intoxica