The information which is elicited from a witness who, after he has claimed his privilege, is forced to answer an incriminating question, cannot be used against him subsequently.100

If facts are shown from which the court is convinced that the incriminating evidence called for by the question cannot be used against the witness in a criminal prosecution, the witness must be compelled to answer.

Such is the case when the prosecution of the crime has been barred by the lapse of time,1 or where a statutory enactment forbids the use of such testimony in a criminal prosecution of the witness.2

A statutory provision of this nature should be liberally construed for the purpose of affording the witness the fullest protection where he answers an incriminating question.3 A statute which provides that no person shall be prosecuted or be subjected to penalty or forfeiture on account of any transaction or matter concerning which he may testify in a proceeding or prosecution brought under certain statutes is constitutional and deprives a witness of his right to claim a privilege against answering incriminating questions. The protection of the federal statute affords the witness immunity only in the federal courts and this it has been held is sufficient.1

In other words, the Supreme Court of the United States has held that the fact that the statute passed by congress does not guarantee the witness against a prosecution in the state courts is

100 United States v. Smith, 47 Fed. 501. Ex parte Buskett, 106 Mo. 602, 17 S. W. 753; Taylor v. United States, 152 Fed. 1, 81 C. C. A. 197.

1Ex parte Boscowitz, 84 Ala. 463, 4 So. 279, 5 Am. St. 384; People v. Kelly, 24 N. Y. 74; Southern Railway News Co. v. Russell, 91 Ga. 808, 18 S. E. 40. Contra, McFadden v. Reynolds (Pa., 1887), 11 Atl. 638.

2 Ex parte Buskett, 106 Mo. 602, 17 S. W. 753, 27 Am. St. 378, 14 L. R. A. 407n; Willis v. State, 12 Ga. 444, 448; Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711n. The constitutional protection thrown

not sufficient to invalidate it. This decision was made during a search for evidence in a prosecution under the federal anti-trust law and the same question has also arisen in Kansas under the state anti-trust law and a similar decision was arrived at—that is, the protection was sufficient although it did not protect in a prosecution under the federal anti-trust law. And the rule that a witness cannot refuse to answer incriminating questions where the statute gives him full immunity, is illustrated in a New York case, construing a statute which provides that no person shall be excused from testifying as to gambling on the ground that his evidence may tend to convict him of a crime, but that no such evidence shall be received against him upon any criminal investigation.R

Under a statute which provides that no witness shall be prosecuted on account of any testimony he may give in any proceeding, suit or prosecution, it has been held that the examination of witnesses before a grand jury is a proceeding. And where a state constitution provides that no person can be compelled in any "criminal case," to give evidence against himself, an inquisition before a grand jury has been held to be a criminal case.

8

A statute which provides that no testimony given by a bankrupt under certain circumstances shall be used against him in a criminal proceeding is meant to protect him only against the use of his admissions against himself; and it does not permit him to close his mouth when he is called as a witness to testify against another person in a criminal proceeding. Its operation is confined strictly to his admissions in his own bankruptcy proceedings. It has been held under this statute that a bankrupt cannot be convicted of perjury or false swearing committed in his own bankruptcy proceedings in support of a claim filed by him against his estate."

An inquiry by a justice in order to ascertain whether it will be necessary for him to hold an inquest is not a legal examination

within a statute which provides that, in a criminal prosecution, no evidence shall be given against the accused of any statement made by him as a witness on a legal examination.1o

§ 248. Interest and bias of the witness as impeachment.—The bias of the witness and his interest in the event of the prosecution are not collateral, and may always be proved to enable the jury to estimate his credibility. They may be proved by his own testimony upon cross-examination or by independent evidence." Thus, for example, the prosecution may show that its witness has, on his direct examination, unexpectedly proved hostile, and may then show by other witnesses that the biased witness was at one time ready and willing to testify against the prisoner.12

14

On the other hand the defendant may show that he had a difficulty with one of the witnesses for the state. 13 He may show that the witnesses for the prosecution hated him and from his evidence the jury may infer that this hatred colored the testimony. The bias of the witness may be shown, either by independent testimony or by questions put to him upon his examination. He may be interrogated as to his sympathy with the prisoner,15 or as to his hostility towards him.16 Thus one accused of illegal dealing in liquors may show that one of the prosecuting witnesses had been convicted of an illegal sale and that the accused was a witness against him.17

In proving bias or interest by questions put to the witness re

10 State v. Legg, 59 W. Va. 315, 53 S. E. 545, 3 L. R. A. (N. S.) 1152n. "Sage v. State, 127 Ind. 15, 28, 26 N. E. 667; Bennett v. State, 28 Tex. App. 539, 13 S. W. 1005; Eldridge v. State, 27 Fla. 162, 9 So. 448; Davis v. State, 51 Neb. 301, 70 N. W. 984; People v. Mallon, 116 App. Div. 425, IOI N. Y. S. 814; Wheeler v. State, 79 Neb. 491, 113 N. W. 253; State v. Darling, 202 Mo. 150, 100 S. W. 631. 12 See Underhill on Ev., § 340.

State v. Barber, 13 Idaho 65, 88 Pac. 418.

15 State v. Turlington, 102 Mo. 642, 15 S. W. 141; Porch v. State, 51 Tex. Cr. 7, 99 S. W. 1122.

16 A witness who testifies for the defendant may be asked if he did not leave the state to enable the accused to procure a continuance. Sage v. State, 127 Ind. 15, 26 N. E. 667; Burnett v. State, 53 Tex. Cr. 515, 112 S. W. 74.

17

"Vann v. State, 140 Ala. 122, 37 So. 158.

garding his previous statements out of court indicating bias, it is necessary to state details of time, place and person attendant upon such declarations. 18 If the witness denies having uttered the statement indicating bias, or if he refuses to answer or answers evasively, the fact of bias may be proved by other witnesses.19 Under modern rules the possession of an actual pecuniary interest in the outcome of an action is not a valid objection to the competency of a witness. But it may always be shown, even in a criminal proceeding, as a fact from which the jury may infer that the witness is biased. So a detective testifying against the accused may be asked if he had received any money, or if he expected to be paid for acting as a detective.20

So, also, an attorney testifying against the accused may be asked if he had received a retainer in the case to assist in its prosecution and as to what capacity he was retained. If he denies these facts, they may be shown by other evidence.21

It may always be shown that a witness testifying for the accused is related to him, either by blood or marriage. And the jury may, with propriety, be warned that they should employ great caution in weighing the testimony of such a person,22 un

18 Queen's Case, 2 Br. & Bing. 284, 311, 22 R. R. 662; Crumpton v. State, 52 Ark. 273, 12 S. W. 563; State v. Brown, 28 Ore. 147, 41 Pac. 1042. It is otherwise when the bias is to be proved by independent testimony without interrogating the witness. People v. Brooks, 131 N. Y. 321, 30 N. E. 189.

19 State v. McFarlain, 41 La. Ann. 686, 6 So. 728; Eldridge v. State, 27 Fla. 162, 9 So. 448; Bennett v. State, 28 Tex. App. 539, 13 S. W. 1005; State v. Kelley, 45 S. Car. 659, 668, 24 S. E. 45; State v. Darling, 202 Mo. 150, 100 S. W. 631.

20 State v. Tosncy, 26 Minn. 262, 263, 264, 3 N. W. 345; Heldt v. State, 20 Neb. 492, 30 N. W. 626, 57 Am. 835n; Rivers v. State, 97 Ala. 72, 12 So. 434. Cf. State v. Barber, 2 Kan. App. 679, 43 Pac. 800. But the mere fact that a

witness has frequently testified for the state in similar criminal prosecutions is not admissible as impeachment. Mitchell v. State, 94 Ala. 68, 10 So. 518; Lea v. State, 64 Miss. 294, 1 So. 244; Union v. State (Ga. App., 1909), 66 S. E. 24.

21 Miller v. Territory, 15 Okla. 422, 85 Pac. 239, reversed in 149 Fed. 330, 79 C. C. A. 268.

22

Smith v. State, 143 Ind. 685, 42 N. E. 913; State v. Calkins, 73 Iowa 128, 131, 34 N. W. 777; United States v. Ford, 33 Fed. 861; State v. Hilsabeck, 132 Mo. 348, 34 S. W. 38; State v. Byers, 100 N. Car. 512, 6 S. E. 420; Simpson v. State, 78 Ga. 91; State v. Farrell, 82 Iowa 553, 48 N. W. 940. Contra, People v. Shattuck, 109 Cal. 673, 42 Pac. 315. In Myers v. State, 97 Ga. 76, 25 S. E. 252, it was held that the bare fact of a reward having been offered for the apprehension of

less the inference of bias is overcome by evidence which shows to their satisfaction that the witness and the accused are on bad terms.

The relations of the witness and the decedent in a murder trial are always relevant. The witness may be compelled to disclose his or her relations with the decedent, though they were improper and they may be shown by other witnesses. If the witness is questioned and denies that he knew the decedent at all, he may be contradicted by other witnesses; the object of evidence to prove that there existed improper relations between decedent and the witness not being to blacken his or her character but to show bias and prejudice against the accused.

Evidence of relations which are entirely proper, for example, that the witness was the wife, sister or daughter of the decedent, is always competent.

23

On the other hand inasmuch as the friendly feeling of the prosecuting witness for the accused cannot be considered by the jury in arriving at their verdict it is not allowable for the accused to prove that the prosecuting witness did not have the accused arrested of his own free will or that he bore the accused no malice or.ill will.24

The bias of a witness in favor of the accused may have been created by means of threats made or bribes offered by him or by some one connected with him. The fact that a witness has been thus tampered with does not exclude his testimony. But the bribery of or attempts to bribe a witness either to testify or to remain silent when upon the stand are always relevant, though it is for the jury to determine what effect, if any, the threats or bribes have had upon the credibility of the witness.26

25

Under the rule that the bias or interest of the witness may be shown, it is competent to prove, either by his cross-examination or by the evidence of another witness, that a witness for the state

the accused may be given in evidence as affecting the credibility of the witnesses for the prosecution.

25

240.

State v. Cook, 13 Idaho 45, 88 Pac.

20 A witness may be impeached by

Leach v. Commonwealth, 33 Ky. showing his refusal to attend the L. 1016, 112 S. W. 595.

funeral of a person murdered by con

State v. De Hart, 38 Mont. 211, spirators under circumstances of un

99 Pac. 438.

usual brutality. Holtz v. State, 76 Wis. 99, 44 N. W. 1107, 1110.