54 51 49 48 53 tion before he committed the crime charged against him,** or whether he had or had not at one time been criminally intimate with a woman, whose name is stated; and whether he had not threatened to kill any one who visited her. He may be questioned on cross-examination exhaustively and in detail as to his conduct prior to the crime as to his residence and business occupation before or at the date of the crime,5° and in particular as to his movements or whereabouts after the commission of the crime for the purpose of showing that he had fled or attempted to flee to escape arrest. Questions on cross-examination directed to bring out his immoral conduct in his past life,52 his lack of good faith,' and his movements or particular acts if impeaching are generally competent. So the prosecution may cross-examine the accused, who was an attorney, with the object of proving that he has been disbarred, to impeach his credit as a witness, but the prosecution will not be permitted to bring out the details of the professional or other misconduct of the accused which resulted in his disbarment. The accused may generally be cross-examined for the purpose of showing that he made statements out of court which contradict what he testifies to on his direct examination.56 And where the testimony of the accused on his direct examination, differs materially from prior statements made by him to the prosecuting attorney, or to other persons, it is proper to permit him to be asked whether he has not altered his testimony for the purpose of making it correspond with or corroborate the testimony of his own witnesses.57 If the accused, on the direct examination voluntarily testifies as to his conduct, he may, on cross-examination, be 55 "State v. Rowell, 75 S. Car. 494, 56 S. E. 23. 48 Carr v. State, 81 Ark. 589, 99 S. W. 831. 63 State v. Stukes, 73 S. Car. 386, 53 S. E. 643. Thompson v. United States, 75 C. C. A. 172, 144 Fed. 14; Linnehan v. 49 Barden v. State, 145 Ala. 1, 40 State, 120 Ala. 293, 25 So. 6. So. 948. 50 Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am. St. 22. State v. Cornelius, 118 La. 146, 42 So. 754; Untreinor v. State, 146 Ala. 26, 41 So. 285. 55 People v. Dorthy, 156 N. Y. 237, 50 N. E. 800. 50 Morris v. State, 146 Ala. 66, 41 So. 274. 57 People v. Weber, 149 Cal. 325, 86 Pac. 671. questioned as to the details of this conduct and the evidence on these details will be permitted to take a wide range.58 The rule that the conviction of the accused may be shown on his cross-examination as impeachment does not permit the prosecution to bring out on cross-examination, the evidence or details of the criminal offense of which he was convicted. The admission of this evidence is error justifying a reversal.59 § 62. Statutory limitation of cross-examination to relevant matters. —If, however, the question calls for an answer, which, though ostensibly invoked solely to aid the jury in estimating the credibility of the accused, may, by showing him guilty of other similar crimes, indirectly lead them to infer that he is guilty of the crime charged, the court may interfere in its discretion. To compel the accused to answer indiscriminately all questions respecting past criminal transactions, which, though similar, are separate and distinct from that for which he is on trial, would not only be treating him more harshly than other witnesses, but would be a serious infringement of his constitutional privileges. Hence, even in those states where no statute exists confining the cross-examination within the limits of the direct, it is generally held that any disgracing question which is put to the accused upon his cross-examination must be one that will affect his credibility as a witness. alone, either directly or by its tendency to show a bad moral character, 60 In some states it is expressly provided by statute that the prosecution shall be allowed to cross-examine the accused only upon matters to which he has already testified, or which are legitimately connected therewith, or which were inquired of or referred to on the direct examination. These statutes should be strictly con 61 58 State v. Zdanowicz, 69 N. J. L. Mo. 339, 32 S. W. 1110; State v. 619, 55 Atl. 743. "State v. Mount, 73 N. J. L. 582, 64 Atl. 124, aff'g 72 N. J. L. 365, 61 Atl. 259. GO Chamberlain, 89 Mo. 129, 133, 1 S. W. 145; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 52 Am. St. 655, 31 L. R. A. 294; State v. Underwood, 44 La. Ann. People v. Brown, 72 N. Y. 571, 852, 854, 11 So. 277; Gale v. People, 573, 28 Am. 183. State v. Saunders, 14 Ore. 300, 309, 12 Pac. 441; State v. Harvey, 131 26 Mich. 157, 160, 161; Elliott v. State, 34 Neb. 48, 50, 51 N. W. 315; State v. Turner, 110 Mo. 196, 201, 19 strued with the view of protecting the rights of the accused and giving him a fair and impartial trial. Hence, in those states it is reversible error for the court to permit the cross-examination to extend beyond the limits of the direct, both as regards questions directly relevant and questions affecting the credibility of the accused only. And this is the rule where the court has the discretion to compel other witnesses to answer disgracing questions on their cross-examination.62 § 63. Mode of cross-examination.-The cross-examination of the accused ought to be carried on in a regular and orderly manner. He cannot be interrogated by the prosecution until he is properly turned over for cross-examination at the close of his direct examination. But where the defendant, on taking his seat after the direct examination, declares to the jury that he is a peaceable, law abiding citizen, and that he never had any idea of committing a crime, it is not reversible error to permit the district attorney to ask him it he had had trouble with many other persons. It has been held that the court may permit the accused to be recalled for further cross-examination after his cross-examination has been completed." S. W. 645; State v. Cook, 132 Mo. 62 People v. Manasse, 153 Cal. 10, 94 Pac. 92; State v. Saunders, 14 Ore. 300, 316, 12 Pac. 441; State v. McLaughlin, 76 Mo. 320, 321; People v. McGungill, 41 Cal. 429, 436; State v. Patterson, 88 Mo. 88, 91, 57 Am. 374. "The humane provision of the law that a party shall not be compelled to be a witness against himself remains in full force, and is as effectually violated when the cross-examination of the accused is extended beyond the facts to which he has testified as it would be if he were to be called and made to testify at the instance of the state." State v. Lurch, 12 Ore. 99, 103, 6 Pac. 408. 63 63 Taylor v. Commonwealth (Ky.), 18 S. W. 852, 13 Ky. L. 860. State v. Horne, 9 Kan. 119, 128; State v. Johnson, 72 Iowa 393, 396, 397, 34 N. W. 177; State v. Cohn, 9 Nev. 179; Commonwealth v. Eisenhower, 181 Pa. St. 470, 37 Atl. 521. 59 Am. St. 670; State v. Favre, 51 La. Ann. 434, 25 So. 93. Where the accused has denied on the direct examination that he wrote an instrument, he may be compelled on crossexamination to write the words on paper. United States v. Mullaney, 32 Fed. 370, 371. The accused is not compelled to furnish evidence against himself if he does this voluntarily. Sprouse v. Commonwealth, 81 Va. 374. $ 64. Privileged communications on the cross-examination.-The accused does not, merely by going upon the witness stand, waive the protection which the statute affords his confidential statements made to an attorney, physician or priest. He cannot, therefore, be made to divulge communications made by him to his counsel, or advice received during the existence of the relation of attorney and client. The privilege is for the protection of the client and may be waived by him, but the waiver must be express and unequivocal.67 65 66 It cannot be waived by third persons because they are in privity with him. The fact that the accused denies upon the witness stand that he made a certain statement to his attorney will not authorize proof of it by the latter's testimony."9 § 65. Conclusiveness of answers-Impeachment by other witnesses. -The rule forbidding the contradiction of the answers to irrelevant questions on cross-examination applies to the answers of the accused. So where on cross-examination the accused testifies to the commission of other crimes by way of impeachment the state cannot contradict it." This rule, however, does not preclude the contradiction of answers to relevant questions put on the crossexamination, merely because contradiction tends indirectly to impeach the credibility of the witness. The accused may be asked if he did not, at a particular time and place, give a contradictory account of relevant facts. If he denies he has done so, he may be contradicted by the evidence of some one who heard him, though Duttenhofer v. State, 34 Ohio St. 91, 95, 32 Am. St. 362. The privilege is waived if the witness voluntarily discloses, during the direct examination, the facts in the communication. State v. Tall, 43 Minn. 273, 276, 45 N. W. 449; People v. Gallagher, 75 Mich. 512, 515, 42 N. W. 1063. 67 State v. James, 34 S. Car. 49, 58, 12 S. E. 657; Wharton on Cr. Ev., 500. See also, §§ 175, 176, 178. 68 State v. James, 13 S. E. 325, 34 S. Car. 579, not reported in full. 12 S. E. 657. "The true view seems to be that communications which the lawyer is precluded from disclosing the client can not be compelled to discover." State v. White, 19 Kan. 445, 447, 27 Am. 137n. 70 Marx v. People, 63 Barb. (N. Y.) 618, 619; People v. Ware, 29 Hun (N. Y.) 473, 475, 92 N. Y. 653; George v. State, 16 Neb. 318, 320, 321, 20 N. W. 311; McKeone v. People, 6 Colo. 346, 348. "People v. De Garmo, 179 N. Y. 130, 71 N. E. 736, rev'g 73 App. Div. State v. James, 34 S. Car. 49, 58, (N. Y.) 46, 76 N. Y. S. 477. 8-UNDERHILL CRIM. EV. the probable result of this is not so much to prove relevant facts as to show the accused has contradicted himself. So the state may prove contradictory statements voluntarily made by the accused before the coroner," or on the preliminary examination, or upon a former trial for the same offense.73 § 66. The bad character of the accused-When admissible to impeach him. Whether the accused may be impeached by proving bad character to the same extent as other witnesses depends largely upon the statutes rendering him competent as a witness. Where he may be impeached as any other witness his bad character or general reputation for veracity alone may always be shown to impeach him."* But here a difficult question suggests itself. Can the general bad character of the accused be shown solely for the purpose of impeaching him as a witness, in case he has not, as the accused, first offered evidence of good character ?" Where the statute expressly provides that the accused, when testifying as a witness, subjects himself to the same rules of examination as any witness, the weight of the cases maintains the affirmative, at least in those states where the general bad character of a witness may be shown. If, however, the statute does not expressly provide that 76 Woods v. State, 63 Ind. 353, 358; Lovett v. State, 60 Ga. 257, 260; People v. Kelley, 47 Cal. 125; State v. Mullins, 101 Mo. 514, 519, 14 S. W. 625; State v. Gilman, 51 Me. 206, 218226. 73 Dumas v. State, 63 Ga. 600, 601, 604; State v. Dyer, 139 Mo. 199, 40 S. W. 768. Adams v. People, 9 Hun (N. Y.) 89, 97; Fletcher v. State, 49 Ind. 124, 130, 131, 19 Am. 673; State v. Beal, 68 Ind. 345, 346, 34 Am. 263; State v. Baker, 209 Mo. 444, 108 S. W. 6; Maloy v. State, 52 Fla. 101, 41 So. 791. Code Cr. Proc., § 393, providing that defendant may testify as a witness in his own behalf, not expressly provid ing that when so testifying he may be examined or impeached the same as other witnesses, his general character is protected from attack, unless he puts it in issue by himself introducing evidence relating to it. People v. Hinksman, 192 N. Y. 421, 85 N. E. 676. 75 See 8 76 et seq. 70 State v. Kirkpatrick, 63 Iowa 554, 559, 19 N. W. 660; Drew v. State, 124 Ind. 9, 13, 23 N. E. 1098; Peck v. State, 86 Tenn. 259, 266, 6 S. W. 389; State v. Cohn, 9 Nev. 179; Connors v. People, 50 N. Y. 240; State v. McGuire, 15 R. I. 23, 22 Atl. 1118; Fields v. State, 121 Ala. 16, 25 So. 726Sweatt v. State (Ala.), 47 So. 194. |