verse party desires to re-examine the witness he may then do so on the re-cross-examination, but must restrict himself to new matter brought out on the re-direct examination.

17

§ 224. Recalling witnesses.-Whether a witness, after he has left the stand, shall be allowed to be recalled by the party in whose behalf he testified, or for further cross-examination,16 is wholly discretionary with the court, and this discretion was held not to have been abused where a witness was recalled after a direct, cross, re-direct and re-cross-examination, 18 and even after both the state and the defense had rested.19 Where a witness is un

able to answer positively or definitely, while on the stand, the court may properly refuse to permit his recall for additional examination, or to permit a witness, who has already testified fully and exhaustively, to be recalled solely for the purpose of having

20

29 Pac. 953; State v. Cardoza, 11 S. Car. 195; Schaser v. State, 36 Wis. 429; Parks v. State, 46 Tex. Cr. 100, 79 S. W. 301. See Underhill on Ev., § 34г.

16

People v. Koerner, 154 N. Y. 355, 48 N. E. 730; People v. Farton, 49 Cal. 632.

17 State v. Robinson, 32 Ore. 43, 48 Pac. 357; Faust v. United States, 163 U. S. 452, 41 L. ed. 224, 16 Sup. Ct. 1112; Pigg v. State, 145 Ind. 560, 43 N. E. 309; Chapman v. James, 96 Iowa 233, 64 N. W. 795; Robbins v. Springfield &c. R. Co., 165 Mass. 30, 42 N. E. 334; Lafferty v. State (Tex. Cr.), 35 S. W. 374; Riley v. State, 88 Ala. 193, 7 So. 149; State v. Dilley, 15 Ore. 70, 13 Pac. 648; Humphrey v. State, 78 Wis. 569, 47 N. W. 836; Snodgrass v. Commonwealth, 89 Va. 679, 17 S. E. 238; State v. Huff, 76 Iowa 200, 40 N. W. 720; Hollingsworth v. State, 79 Ga. 605, 4 S. E. 560; Commonwealth v. Kennedy, 170 Mass. 18, 48 N. E. 770; Upton v. State, 48 Tex. Cr. 289, 88 S. W. 212;

Hammond v. State, 147 Ala. 79, 41 So. 761; Bellamy v. State (Fla. 1908). 47 So. 868; State v. Thompson, 68 S. Car. 133, 46 S. E. 941. Underhill on Ev., § 342, citing civil cases. The prosecutrix, in a trial for rape, may be recalled to testify to non-consent after both sides have rested. State v. Case, 96 Iowa 264, 65 N. W. 149 In State v. Clyburn, 16 S. Car. 375, it was held that the judicial discretion was properly exercised when a witness for the state was recalled to prove a single fact, though the examination of the witnesses for the accused was thereby interrupted. State v. Laycock, 141 Mo. 274, 42 S. W. 723.

18 State v. Jacobs, 28 S. Car. 29, 4 S. E. 799; Brown v. State, 72 Md. 468, 20 Atl. 186.

10 Cochran V. United States, 14 Okla. 108, 76 Pac. 672.

20

Bonnet v. Gladfeldt (Glattfeldt), 24 Ill. App. 533, 120 Ill. 166, 11 N. E. 250.

him repeat his testimony or to obtain cumulative evidence.21 If there is a dispute as to what testimoney a witness has given, or if the jurors did not understand or have forgotten what he said it is very proper to allow him to restate his testimony, even after the case is closed.22 But the practice is open to the serious objection that it may lead to injustice to the prisoner by placing too much emphasis on some material evidence against him. If a witness is recalled for further direct examination, or for further cross-examination, the other side has the right of further crossexamination or of further re-direct examination.

23

After a witness for the prosecution has left the witness stand he may be recalled by the counsel for the accused at any time during the trial to lay a foundation for his impeachment. The prosecuting attorney has the same right. The fact that a party recalls a witness for this purpose does not make him the witness of the party recalling him.24

The rule that evidence which is not apparently relevant, or which is apparently irrelevant, may be received by the court, upon the promise of the party offering it that he will show the relevancy and connection later on, is applicable to criminal trials. But the matter is within the discretion of the court who may require that the relevancy be shown at once by introducing some evidence which will connect. The party offering evidence apparently irrelevant may be required to state at once its connection with other facts, and to promise to connect, and if he does not do so, the evidence should be stricken out.25

§ 225. Exclusion and separation of witnesses.-The presiding judge may, when it shall seem necessary for the due administration of justice, order a separation of the witnesses, and the ex

Chicago &c. R. Co. v. Hazels, 26 the purpose of laying a foundation Neb. 364, 42 N. W. 93. for his impeachment. State V. Brown, III La. 696, 35 So. 818.

22

Bennefield v. State, 62 Ark. 365, 35 S. W. 790; Hayes v. State, 36 Tex. Cr. 146, 35 S. W. 983; Lafferty v. State (Tex. Cr.), 35 S. W. 374; State v. Johnson, 89 Iowa 1, 56 N. W. 404; Dillard v. State, 58 Miss. 368; Haddix v. State, 76 Neb. 369, 107 N. W. 781. A witness may usually be recalled for

clusion of all witnesses, expert,20 or otherwise, from the courtroom while any witness is under examination.27 The value and importance of this order in criminal trials to prevent collusion among witnesses are self-evident, and can hardly be overestimated. In the absence of statute the order is not of right. But it is seldom refused if it appears that the ascertainment of truth will be advanced. The matter, however, is wholly one of judicial discretion and neither side can claim it as matter of right. Hence the refusal of the court to exclude all the witnesses for the prosecution except the witness who is testifying is not reversible error which will entitle the accused to a new trial upon his conviction.28 Thus the court does not err in refusing to exIclude a detective who caused the arrest of the accused, and he may remain in court and assist the district attorney in framing questions based upon what he has found out in searching for the guilty party.29

If a witness returns after leaving the court, or remains through inadvertence after the separation of witnesses has been ordered, the court may, in its discretion, refuse to permit him to be ex

20 Vance v. State, 56 Ark. 402, 19 S. W. 1066; Reg. v. Frances, 4 Cox C. C. 57.

27 Commonwealth v. Thompson, 159 Mass. 56, 33 N. E. IIII; State v. Whitworth, 126 Mo. 573, 29 S. W. 595; State v. Fitzsimmons, 30 Mo. 236; State v. Davis, 48 Kan. 1, 28 Pac. 1092; Barnes v. State, 88 Ala. 204, 7 So. 38, 16 Am. St. 48; Kelly v. People, 17 Colo. 130, 29 Pac. 805; Nelson v. State, 2 Swan (Tenn.) 237; Heath v. State, 7 Tex. App. 464; Roberts v. Commonwealth, 94 Ky. 499, 22 S. W. 845, 15 Ky. L. 341; People v. Sam Lung, 70 Cal. 515, II Pac. 673; Haines v. Territory, 3 Wyo. 167, 13 Pac. 8; Talley v. State, 2 Ga. App. 395, 58 S. E. 667; Joseph v. Commonwealth, 99 S. W. 311, 30 Ky. L. 638; Conley v. State (Tex. Cr.),

116 S. W. 806; State v. Pell (Iowa), 119 N W. 154.

28

See, generally, McGuff v. State, 88 Ala. 147, 7 Sọ. 35, 16 Am. St. 25; Barnes v. State, 88 Ala. 204, 7 So. 38, 16 Am. St. 48; Commonwealth v. Follansbee, 155 Mass. 274, 29 N. E. 471; Zoldoske v. State, 82 Wis. 580, 52 N. W. 778; State v. Davis, 48 Kan. 1, 28 Pac. 1092; People v. Machen, 101 Mich. 400, 59 N. W. 664; Murphey v. State, 43 Neb. 34, 61 N. W. 491.

amined, and its action will not be reversible error unless serious injustice is done the prisoner, as, for example, where he is deprived of the evidence of a material witness. 32 But this rule is not universally recognized. It is manifestly unfair to deprive one not at fault, of testimony on which he relies, and which may prove him innocent of a heinous and often capital crime, merely because his witness, through carelessness, obstinacy or caprice, refuses or neglects to obey the court. So when the defendant is not to blame the witness cannot be prevented from testifying."

33

If, however, the accused detains one of his witnesses in court or by any sort of connivance encourages the witness to remain in court after an order has been made to exclude the witnesses for the accused it has been held not error for the court to refuse to permit the witness to testify.31

After witnesses not under examination have been ordered to withdraw, the court may permit one or more of them to remain, as circumstances may require. An exception must always be made in the case of the accused, if he is a witness, because of his constitutional right to be present and to confront the witnesses against him.35 So an exception is always made in the case of

1 State v. Fitzsimmons, 30 Mo. 236; State v. Brookshire, 2 Ala. 303; McLean v. State, 16 Ala. 672; Kelly v. People, 17 Colo. 130, 29 Pac. 805; Trujillo v. Territory, 6 N. M. 589, 30 Pac. 870; Hey v. Commonwealth, 32 Gratt. (Va.) 946, 34 Am. 799; Taylor v. State, 131 Ga. 765, 63 S. E. 296; State v. High, 122 La. 521, 47 So. 878; State v. Pell (Iowa), 119 N. W. 154; Fouse v. State, 83 Neb. 258, 119 N. W. 478.

Cunningham v. State, 97 Ga. 214, 22 S. E. 954; Bow v. People, 160 Ill. 438, 43 N. E. 593; State v. Jones, 47 La. Ann. 1524, 18 So. 515; Hellems v. State, 22 Ark. 207; Taylor v. State, 130 Ind. 66, 29 N. E. 415; State v. Ward, 61 Vt. 153, 17 Atl. 483; Grant v. State, 89 Ga. 393, 15 S. E. 488; Sartorious v. State, 24 Miss. 602; Pleasant v. State, 15 Ark. 624; State v. King, 9 S. Dak. 628, 70 N. W. 1046; Ashwood v. State, 37 Tex. Cr. 550, 40 S. W. 273. The disobedient witness may be punished for contempt. Lassiter v. State, 67 Ga. 739.

30

37

counsel, or a sheriff, or other officer of the court, or a who is also a witness.39

jurors

The fact that a witness comes into and remains in court, in ignorance of the rule, does not of necessity render him in contempt or make his testimony incompetent. This was so held where a witness for the prosecution through ignorance disobeyed the rule.40

And in conclusion it may be said that the fact that witnesses, whether for the state or for the accused, have been put under the rule and excluded from the court-room, does not prevent the attorney who has called them from consulting with them."1

$226. Refusal to testify.-If a witness refuses to attend, or, if he attend and refuse to be sworn, 43 or to answer a relevant question without a satisfactory excuse," or acts insolently or disrespectfully towards the court or the grand jury, he is guilty of a contempt.

45

The power to punish a contumacious witness for refusing to testify is limited to courts of record and to legislative bodies, in the absence of any statute conferring it on other officials whose

30 Askew v. State, 3 Ga. App. 79, 59 S. E. 311; Webb v. State, 100 Ala. 47, 14 So. 865.

37

Kelly v. People, 17 Colo. 130, 29 Pac. 805; State v. Hopkins, 50 Vt. 316; Green v. State, 49 Tex. Cr. 645, 98 S. W. 1059; People v. Nunley, 142 Cal. 441, 76 Pac. 45; Jackson v. State, 55 Tex. Cr. 79, 115 S. W. 262; Smith v. State, 52 Tex. Cr. 80, 105 S. W. 501; State v. Pell (Iowa), 119 N. W. 154. See People v. McGarry, 136 Mich. 316, 99 N. W. 147, 11 Det. Leg. N. 10.

38

State v. Vari, 35 S. Car. 175, 14 S. E. 392, and see Underhill on Ev., p. 468, n. 4.

39 The court will not prohibit excluded witnesses from reading newspapers containing accounts of the trial. Commonwealth v. Hersey, 2 Allen (Mass.) 173.

40 State v. Watson, 36 La. Ann. 148; Cook v. State, 30 Tex. App. 607, 18 S. W. 412.

"Bryan v. Commonwealth (Ky.), 33 S. W. 95, 17 Ky. L. 965; Allen v. State, 61 Miss. 627; Williams v. State, 35 Tex. 355; Jones v. State, 3 Tex. App. 150; Brown v. State, 3 Tex. App. 294.

42 Burr's Trial, 354; Langdon, Er parte, 25 Vt. 680; Ellerbe, In re, 13 Fed. Rep. 530; Judson, Ex parte, 3 Blatch f. C. C. 89. An attachment will not issue to compel an expert witness or an interpreter to attend. Roelker, In re, Sprague Dec. 276.

43 Stice, Ex parte, 70 Cal. 51, 11 Pac.