in his hearing, for the purpose of contradicting a witness who had testified that they were not made.1

16

The objection to the question as leading is an objection to the form of the question, not to the competency of the evidence which may be given in answer to it. If the court rules that the question which is alleged to be leading is proper, it will be presumed that the answer is competent in the absence of an objection, to its competency. If the counsel desires to object to the competency of the answer, he should do so, before it is given or having objected on one ground only, he cannot subsequently take advantage of another.17

§ 214. Questions put to the witness by the court.-The interests of public justice and the punishment and prevention of crime on the one hand, and principles of fairness toward the prisoner on the other, demand that the presiding judge should not entertain, or, at least, should not manifest, any partiality for or against the accused during the examination of the witnesses.

It is necessary here to distinguish carefully between the competency of evidence and its credibility. The admissibility of evidence is usually a judicial question with which the jury has no concern.18 It is the right, therefore, of the judge in a criminal trial to determine all preliminary questions bearing on the competency of evidence or of a witness, and to enable him to do this he may have to question the witness. And the court, in ruling on the competency of evidence, may state the reasons and grounds for offering1 and receiving or rejecting it, or may declare its probable effect if it had been received where it is excluded, if no language is employed which will improperly influence the minds of the jurors against the prisoner.

16 Shultz v. State, 5 Tex. App. 390; Cannon v. People, 141 Ill. 270, 30 N. E. 1027. See Underhill on Ev., p. 475, § 335, note 3. If a question calls for evidence which may or may not be relevant, and sometimes even when no question has been asked, and the witness has neither been sworn nor examined, the court may, in its discretion, on application by the other party, require counsel ex

20

With these qualifications no rule of law exists which limits the power of a judge in a criminal trial to interrogate a witness during his examination. He may ask any question which either the state or the accused had a right to ask, or which it was their duty to ask, but which has been omitted, if the answer may be relevant. Where anything material has been omitted, it is the duty of the court to bring it out.21 But the court should be very careful to let fall no remarks, and to put no questions which assume the prisoner's guilt, for experience teaches all persons that jurors, particularly in evenly balanced cases, are extremely prone to be influenced by such judicial intimations, and to defer to them in rendering their verdict.22

The court may, in a criminal case, properly cross-examine the witnesses for the accused. Questions put by the court should follow the rules as to form observed on criminal trials.23 The judicial power to cross-examine should be carefully exercised so as not to prejudice the accused. Questions by the court on examination or cross-examination which assume the prisoner's guilt, or which assume his witnesses are testifying falsely, or which give to jury the impression that the court has determined that the accused is guilty, furnish, in most cases, a basis for a reversal.24

For example, where the defense was an alibi, the action of the court in questioning at very great length a witness who swore to the alibi, asking him inter alia if he were absolutely sure and certain he had seen the defendant at a certain place, telling him to

14 S. E. 284; Hodge v. State, 26 contra, State v. Milling, 35 S. Car. Fla. 11, 7 So. 593. 16, 14 S. E. 284.

21 Colee v. State, 75 Ind. 511; De Ford v. Painter, 3 Okla. 80, 41 Pac. 96, 30 L. R. A. 722; Bowden v. Achor, 95 Ga. 243, 22 S. E. 254; Epps v. State, 19 Ga. 102; State v. Lee, 80 N. Car. 483; State v. Caron, 118 La. 349, 42 So. 960; Caswell v. State (Ga. App.), 63 S. E. 566; Miller v. Territory, 15 Okla. 422, 85 Pac. 239. "People v. Williams, 17 Cal. 142; Durham v. State, 2 Ga. App. 401, 58 S. E. 555; Rouse v. State, 2 Ga. App. 184, 58 S. E. 416; Holt v. State, 2 Ga. App. 383, 58 S. E. 511. Cf.

23

Hopperwood v. State, 39 Tex. Cr. 15, 44 S. W. 841.

2 Komp v. State, 129 Wis. 20, 108 N. W. 46. To an objection on appeal that the manner of the judge in asking a proper question was such as to convince the jury that he believed the accused was guilty, the court said: "It is as yet impossible for the tone and manner of a presiding judge to be transmitted to a court of review." Caswell v. State (Ga. App.), 63 S. E. 566.

think carefully a moment and see if he were not mistaken, assuring him at the same time that he had a right to correct his testimony if he were wrong and advising him to do so if there were any doubt in his mind, was very prejudicial to the rights of the accused and he is entitled to a new trial where the jury find him guilty.25

But no remark by the judge made during the examination of a witness can be urged as ground for a new trial which refers solely to competency, to the relevancy of testimony, or to the reason for its exclusion or admission.26 The active participation of the court in the examination of a witness, even to suggesting the proper form of a question, is not reversible error.27

The witness may always be asked by the court whether he understands a question which has been put to him,28 and the court may, in order to facilitate and expedite the administration of justice, peremptorily check or silence the irrelevant evidence of a voluble or abusive witness,29 or interpose sua sponte to stop the prolonged and unnecessary examination of a witness,30 to exclude incompetent evidence, particularly where the accused has no counsel, or he is a child of tender years."

31

Sometimes jurors are permitted to interrogate a witness and his answers, if relevant, are not incompetent because thus informally obtained. A lengthy examination by a juror, during which

"Glover v. United States, 147 Fed. minutes after an order had been made 426, 77 C. C. A. 450. excluding the witnesses was not er

20 State v. Young, 105 Mo. 634, 16 S. W. 408; Patterson v. State, 86 Ga. 70, 12 S. E. 174; Lewis v. State, 90 Ga. 95, 15 S. E. 697; Commonwealth v. Ward, 157 Mass. 482, 32 N. E. 663; Arnold v. State, 81 Wis. 278, 51 N. W. 426; Butler v. State, 91 Ga. 161, 16 S. E. 984; State v. Turner, 36 S. Car. 534, 15 S. E. 602; State v. Barnes, 48 La. Ann. 460, 19 So. 251; State v. Hayward, 62 Minn. 474, 65 N. W. 63; Carter v. State, 2 Ga. App. 254, 58 S. E. 532, in which case it was held that the action of the court in rebuking one of the witnesses for the accused in the presence of the jury for remaining in court for a few

ror.

27 Hodge v. State, 26 Fla. II, 7 So. 593; Sanders v. Bagwell, 37 S. Car. 145, 15 S. E. 714, 16 S. E. 770.

28 State v. Mathews, 98 Mo. 125, 10 S. W. 144, 11 S. W. 1135; Washington v. State, 46 Tex. Cr. 184, 79 S. W. 811.

29 Robinson v. State, 82 Ga. 535, 9 S. E. 528; Bowden v. Bailes, 101 N. Car. 612, 8 S. E. 342.

30

People v. Turcott, 65 Cal. 126, 3 Pac. 461; State v. Southern, 48 La. Ann. 628, 19 So. 668; State v. Caron, 118 La. 349, 42 So. 960.

31 McClure v. Commonwealth, 81 Ky. 448.

his mental attitude or bias towards the accused, or towards the issue is exhibited, should not be permitted or encouraged.32

33

§ 215. Judicial remarks upon the demeanor or credibility of a witness during his examination.-The credibility and weight of evidence are for the jury exclusively. All judicial observations or remarks upon the personal character of a witness or the nature, credibility or weight of his evidence, made during his examination, are improper, and furnish grounds for objection. It is immaterial that the judicial observations were inadvertently made if the accused was substantially prejudiced, though it seems that the error may be cured by a prompt withdrawal or retraction of the objectionable words,35 or by an instruction to the jury to disregard them.36

32

The accused is sometimes allowed by statute to make a personal statement of his defense under oath. He is not a witness in such a case, and cannot be examined or cross-examined by jurors or counsel. The court must protect him sua sponte from the questioning or interference of counsel, or of others, and its neglect to do this, if objection is promptly made, is ground for reversing a conviction. Bond v. State, 21 Fla. 738; Miller v. State, 15 Fla. 575; Hawkins v. State, 29 Fla. 554, 10 So. 822.

State v. Philpot, 97 Iowa 365, 66 N. W. 730; Sharp v. State, 51 Ark. 147, 10 S. W. 228, 14 Am. St. 27n; State v. Raymond, 53 N. J. L. 260, 21 Atl. 328; People v. Wood, 126 N. Y. 249, 27 N. E. 362; Shepherd v. State, 31 Neb. 389, 47 N. W. 1118; State v. Jacobs, 106 N. Car. 695, 10 S. E. 1031; Campbell v. State, 30 Tex. App. 645, 18 S. W. 409; People v. Nino, 149 N. Y. 317, 43 N. E. 853; State v. Lucas, 24 Ore. 168, 33 Pac. 538; People v. Hull, 86 Mich. 449, 49 N. W. 288; Bone v. State, 86 Ga. 108, 12 S. E. 205. A remark by the court that "witness has contradicted him

self several times," is very objectionable. People v. Willard, 92 Cal. 482, 28 Pac. 585; Grant v. State, 122 Ga. 740, 50 S. E. 946.

34 Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. 232.

35 Johnson v. State, 94 Ala. 35, 10 So. 667; Reinhold v. State, 130 Ind. 467, 30 N. E. 306; Ryan v. State, 83 Wis. 486, 53 N. W. 836; Commonwealth v. Ward, 157 Mass. 482, 32 N. E. 663; State v. Black, 42 La. Ann. 861, 8 So. 594.

36

People v. Northey, 77 Cal. 618, 19 Pac. 865, 20 Pac. 129; Vann v. State, 83 Ga. 44, 9 S. E. 945.

"The more serious question relates to the remarks made by the court, in passing upon the objection. The remarks were made, it is true, in the heat of the trial, and were, no doubt, called out by something that was said by counsel, either in the objections interposed, or in the arguments made in support thereof, and were not uttered with intent to prejudice the case, or prejudice the effect of the witness' testimony. But it is a matter of common knowledge that jurors hang tenaciously upon remarks made by

37

§ 216. Answers must be responsive.-The questions put should be neither vague nor ambiguous.3 So the answers should be responsive, stating all facts called for, and no more, and generally without any expression of opinions, inferences or conjectures.3 If the answer given is so irresponsive that it wholly or in part fails to convey all the facts which were required, or if it states facts or opinions not required, it may be stricken out on motion as far as it is not responsive, and the refusal of this motion when seasonable objection is made by the accused is reversible error." The court may always in its discretion direct a witness to answer a relevant question responsively if he persists in replying evasively, and should promptly rebuke a witness who persists in stating his opinion as to the guilt of the prisoner.11

40

39

§ 217. Refreshing the memory of a forgetful witness by memorandum.-A witness will generally be permitted to speak of those facts only that are within his personal knowledge and recollection. There are, however, two sorts of recollection which the witness may employ on the stand. They may be concisely described as past recollection and present recollection. In the case of past recollection, the witness has no present recollection of relevant facts, while he is on the witness stand, but remembers that at sometime in the past he did have knowledge and recollection of certain events and that he made a record thereof. Having no present recollection, however, he cannot use this record to refresh his recollection, but if he can swear that when he made it,

the court during the progress of the trial, and if, perchance, they are enabled to discover the views of the court regarding the effect of a witness' testimony, or the merits of the case, they almost invariably follow them." State v. Philpot, 97 Iowa 365, 66 N. W. 730.

"Hill v. State, 91 Tenn. 521, 19 S. W. 674; Mann v. State, 23 Fla. 610, 3 So. 207.

28 People v. Smith, 106 Mich. 431, 64 N. W. 200. See Underhill on Ev., p. 476, note 2; Smith v. State (Tex. Cr.), 99 S. W. 100.

29 Chicago, etc., R. Co. v. Woodward, 47 Kan. 191, 27 Pac. 836.

40 State v. Farley, 87 Iowa 22, 53 N. W. 1089. Whether the answer is or is not responsive is for the court alone.

41 A witness, in his excitement, accused the prisoner of being guilty of the murder for which he was being tried. The court need not stop the trial if the jury are properly cautioned to disregard the accusation. Commonwealth v. Gilbert, 165 Mass. 45, 42 N. E. 336.