the bias and disposition evinced by the witness under interrogation. If he should display a zeal against the party cross-examining him, great latitude with regard to leading questions may with propriety be admitted. But if, on the other hand, he betrays a desire to serve the party who cross-examines him, although the court will not in general interfere to prevent the counsel from putting leading questions, yet it has been rightly observed, that evidence obtained in this manner is very unsatisfactory and open to much remark. The rule with regard to putting leading questions on cross-examination was thus laid down by Mr. Justice Buller: "You may lead a witness upon cross-examination, to bring him directly to the point, as to the answer; but you cannot go the length of putting into the witness's *mouth the very words he is to echo back again." R. v. Hardy, 24 How. St. Tr. 755. *143] In a later case, where an objection was made to leading a willing witness, Alderson, B., said, "I apprehend you may put a leading question to an unwilling witness, on the examination in chief, at the discretion of the judge; but you may always put a leading question in cross-examination, whether a witness be unwilling or not." Parkin v. Moon, 7 C. & P. 405, 32 E. C. L. When two or more prisoners are tried on the same indictment, and are separately defended, any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony tending to criminate them. R. v. Burdett, Dears. C. C. R. 431; 24 L. J., M. C. 63. Cross-examination of witnesses as to previous statements in writing. It was settled in The Queen's case, 2 B. & D. 292, that, when upon cross-examination a witness is asked, whether or no he has made any previous statement, the opponent party may interfere and ask, whether the representation referred to were in writing or verbal. If it appears to be in writing, then the writing itself must, if possible, be produced in order to show its contents, and they cannot be got from the witness under cross-examination. But if for any valid reason the writing cannot be produced, then the usual principles on which secondary evidence is admissible will apply, and the contents of the document may be proved by the admission of the witness. By 28 Vict. c. 18, s. 4, if a witness upon cross-examination, as to a former statement made by him relative to the subject-matter of the indictment or proceeding and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. By the 28 Vict. c. 18, s. 5, a witness may be cross-examined as to the previous statements made by him in writing or reduced into writing relative to the subject-matter of the indictment or proceeding, without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purpose of the trial as he may think fit. When the attention of the witness has been called to the writing, and it is desired to contradict him, the statement must be put in evidence. R. v. Riley, 4 F. & F. 964; R. v. Wright, Id. 967. In R. v. Hughes, Derby Winter Assizes, 1868, Byles, J., said the proviso as to the judge doing as he thinks fit, applied equally before any answer had been given by the witness or after, -in fact to the whole of the trial; and the use he always made of a deposition was to have it read before any attempt was made to contradict the witness by it. If the counsel on cross-examination puts a paper into the witness's hand, and questions him upon it, the counsel on the other side has a *right to see the paper, and re-examine upon it. R. v. Duncombe, 8 C. & P. 369, 34 E. C. L. [*144 As to the proper mode of conducting a cross-examination on depositions, the following cases were decided before the passing of the statute above cited; and see ante, p. 67. In R. v. Edwards, 8 C. & P. 26, 34 E. C. L., it was proposed on the part of the prisoner to put the depositions into the hands of a witness, and to desire him to look at his own, and then to ask him whether he would adhere to the statement which he had just made, and the judges (Littledale and Coleridge, JJ.), thought there was no objection to this. But in R. v. Ford, 2 Den. C. C. 245, in which a similar course had been pursued, and the opinion of the Court of Criminal Appeal asked upon its propriety, Lord Campbell refused to hear it argued, saying it was res judicata; and referred to a case reserved by Parke, B., with a note of which the learned baron had furnished the court, and in which the judges decided that this course was inexpedient, and ought not to be allowed. Lord Campbell added, that the proper course was to read the deposition at the time, or put it in afterwards as the evidence of the party so using it. The court, however, in its discretion will occasionally put the witness's deposition into his hands, or cross-examine or allow him to be cross-examined upon it without giving the counsel for the crown a right to reply; for an instance of this see R. v. Quin, 4 F. & F. 818. See also, R. v. Hughes, supra. In R. v. Smith, 1 Den. C. C. 536, the magistrate's clerk had put, irregularly, some questions to the witnesses, the answers to which were inserted by him in the depositions. Afterwards the witnesses appeared again before the magistrates, and, in the presence of the prisoners, 1 In impeaching a witness by proof of former statements, when those statements are in writing, the whole should be shown to the witness. In rebuttal, the whole may be read to the jury. Wills v. State, 74 Ala. 21. were re-sworn; the depositions were read over, an opportunity was given to the prisoners to cross-examine the witnesses, and the depositions were then signed. On the trial the prisoners' counsel, without putting in the depositions, proposed to cross-examine a witness upon what passed between him and the magistrate's clerk, which the judge at the trial refused to permit; but the Court of Criminal Appeal, upon a case reserved, held that the question was proper, inasmuch as the magistrate's clerk, a person in no authority, could not, by any act of his, attach to the writing a character which would exclude parol evidence of that which was so written. On what subjects a witness may be cross-examined. A witness may be questioned on cross-examination not only on the subject of inquiry, but upon any other subject, however remote, for the purpose of testing his character for credibility, his memory, his means of knowledge, or his accuracy. Whether or no the question put will have that effect will depend on the circumstances of the case, and frequently also upon information which is in possession of the crossexamining counsel only; judges, therefore, are in the habit of granting considerable license to counsel in this matter, from the implicit confidence which is placed in them that they will not turn the power, which is put in their hands for the purposes of justice, into an instrument of oppression. The moment it appears that a question is being put which does not either bear upon the issue, or enable the jury to judge of the value of the witness's testimony, it is the duty of the court to interfere, as well to protect the witness from what then *becomes an injustice or an insult, as to prevent the time of the court from being wasted.' *145] As to when a witness may refuse to answer questions put to him, see post, p. 149. Cross-examination of witnesses producing documents only. Where a witness is called merely to produce a document which can be proved by another, and he is not sworn, he is not subject to crossexamination. Simpson v. Smith, 1822, cor. Holroyd, J.; 2 Phill. Ev. 467, 10th ed.; and per Bayley, J., 1824, Stark. Ev. 196, 4th ed.; Davis v. Dale, Moo. & Malk. 514. Thus where, on an indictment for perjury, a sheriff's officer has been subpoenaed to produce a warrant of the sheriff, after argument, he was ordered to do so without having been sworn. R. v. Murlis, Moo. & Malk. 515. But where the party producing a document is sworn, the other side is entitled to cross-examine him, although he is not examined in chief. R. v. Brooks, 2 Stark. 472, 3 E. C. L. Where, however, a person called to produce a document, was sworn by mistake, and asked a question which he did not answer, it was held that the opposite party was not entitled to cross-examine him. Rush v. Smyth, 4 Tyrw. 675; 1 Cr. M. & R. 94. So, where a witness has been asked only one immaterial question, and his evidence Where exception is not taken to improper matter it is waived. State v. Mills, 88 Mo. 417. is stopped by the judge, the other party has no right to cross-examine him. Creevy v. Carr, 7 C. & P. 64, 32 E. C. L. Where a witness is sworn, and gives some evidence, if it be merely to prove an instrument, he is to be considered a witness for all purposes. Morgan v. Bridges, 2 Stark. N. P. 314, 3 E. C. L. Re-examination. A re-examination which is allowed only for the purpose of explaining any facts which may come out on cross-examination, must of course be confined to the subject-matter of the cross-examination. Stark. Ev. 231, 4th ed. The re-examination of a witness is not to extend to any new matter, unconnected with the cross-examination, and which might have been inquired into on the examination in chief.' If new matter is wanted, the usual course is to ask the judge to make the inquiry; in such cases he will exercise his discretion, and determine how the inquiry, if necessary, may be most conveniently made, whether by himself or by the counsel; 1 Phill. Ev. 473, 10th ed.2 The rule with regard to re-examinations is thus laid down by Abbott, C. J., in The Queen's case, 2 Br. & Bingh. 297, 6 E. C. L. "I think the counsel has a right, on re-examination, to ask all questions which may be proper to draw out an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful: and also of the motive by which the witness was induced to use those expressions; but he has no right to go further, and introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness." "I distinguish between a conversation which a witness may have had with a party to a suit, whether criminal or civil, and a conversation with a third person. The conversations of a party to the suit relative to the subject-matter of the suit, are in themselves evidence against him in the suit: and if a counsel chooses to ask a witness as to anything which may have been said by an adverse party, the counsel for that party has a right to lay before the court all that was said by his client in the same conversation; not only so *much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected [*146 with the part introduced upon the previous examination, provided only that it relate to the subject-matter of the suit; because it would not be just to take part of a conversation as evidence against the party, without giving the party at the same time the benefit of the entire residue of what he said on the same occasion." In Prince v. Samo, 7 A. & E. 627, 34 E. C. L., the Court of Queen's Bench said, that they could not assent to the doctrine laid down in the above case, and they held, that when a statement made by a party to a suit in giving evidence on a former trial, has been got out on cross-examination, only so 1 Schaser v. State, 36 Wis. 429. ? Counsel is not entitled to recall and cross-examine the prosecutor, because another witness for the State gives a different account to that given by the prosecutor. People v. Parton, 49 Cal. 632. the bias and disposition evinced by the witness under interrogation. If he should display a zeal against the party cross-examining him, great latitude with regard to leading questions may with propriety be admitted. But if, on the other hand, he betrays a desire to serve the party who cross-examines him, although the court will not in general interfere to prevent the counsel from putting leading questions, yet it has been rightly observed, that evidence obtained in this manner is very unsatisfactory and open to much remark. The rule with regard to putting leading questions on cross-examination was thus laid down by Mr. Justice Buller: "You may lead a witness upon cross-examination, to bring him directly to the point, as to the answer; but you cannot go the length of putting into the witness's *mouth the very words he is to echo back again." R. v. Hardy, 24 How. St. Tr. 755. *143] In a later case, where an objection was made to leading a willing witness, Alderson, B., said, "I apprehend you may put a leading question to an unwilling witness, on the examination in chief, at the discretion of the judge; but you may always put a leading question in cross-examination, whether a witness be unwilling or not." Parkin v. Moon, 7 C. & P. 405, 32 E. C. L. When two or more prisoners are tried on the same indictment, and are separately defended, any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony tending to criminate them. R. v. Burdett, Dears. C. C. R. 431; 24 L. J., M. C. 63. Cross-examination of witnesses as to previous statements in writing. It was settled in The Queen's case, 2 B. & D. 292, that, when upon cross-examination a witness is asked, whether or no he has made any previous statement, the opponent party may interfere and ask, whether the representation referred to were in writing or verbal. If it appears to be in writing, then the writing itself must, if possible, be produced in order to show its contents, and they cannot be got from the witness under cross-examination. But if for any valid reason the writing cannot be produced, then the usual principles on which secondary evidence is admissible will apply, and the contents of the document may be proved by the admission of the witness. By 28 Vict. c. 18, s. 4, if a witness upon cross-examination, as to a former statement made by him relative to the subject-matter of the indictment or proceeding and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. By the 28 Vict. c. 18, s. 5, a witness may be cross-examined as to the previous statements made by him in writing or reduced into writing relative to the subject-matter of the indictment or proceeding, without such writing being shown to him. but if it is intended to |