(2) To shake his credit, by injuring his character.

Witnesses have been compelled to answer such questions, though the matter suggested was irrelevant to the matter in issue, and though the answer was disgraceful to the witness; but it is submitted that the court has the right to exercise a discretion in such cases, and to refuse to compel such questions to be answered when the truth of the matter suggested would not, in the opinion of the court, affect the credibility of the witness as to the matter to which he is required to testify.

In the case provided for in article 120, a witness cannot be compelled to answer such a question. Stephen, Dig. art. 129.

The rule, as stated in the books, that a witness cannot be crossexamined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony, does not, by any means, imply that a witness may be cross-examined, for such purpose, as to every fact which is relevant to the issue. The right of cross-examination, for such purpose, is limited to those matters which tend to contradict, discredit, vary, qualify, or explain the testimony given by the witness on direct examination. In the leading case of Atty. Gen. v. Hitchcock, 1 Exch. 91, the rule was stated as follows by Alderson, B.: "A witness may be asked any question which, if answered, would qualify or contradict some previous part of that witness's testimony, given on the trial of the issue; and if that question is so put to him and answered, the opposite party may then contradict him, and for this simple reason, that the contradiction qualifies or contradicts the previous part of the witness's testimony, and so removes it." The reported cases, so far as we are acquainted with them, are consistent with the rule, and the reason of it, stated by Baron Alderson.

If the cross-examination tends merely to disgrace the witness, but relates to a collateral and independent fact, and goes clearly to the credit of the witness, whether in such case he has the privilege to decline or not, the matter so far rests in the discretion of the trial court that in the absence of a claim of privilege, if the question relate to a matter of recent date and would materially assist the jury or the court in forming an opinion as to his credibility, the court will usually require an answer, over the objection of counsel, but may sustain an objection.

When the answer would tend to criminate the witness, but would be collateral and irrelevant to the issue, and yet would affect his credibility, if he do not claim his privilege, no distinction, so far as the discretion of the court and the right of a party to call for its exercise by an objection are concerned, can be perceived between such a case and one differing from it in only that the answer would merely disgrace the witness. In short, where the question relates to a particular act which is collateral and irrelevant to the issue, it is proper for a party to object, and it is within the sound discretion of the court, where the witness does not exercise a privilege to decline, to permit an answer, if, by affecting the credibility of the witness, it will subserve justice, or to sustain the objection, if such purpose will not be promoted by the answer; and if the answer would not affect the credibility of the witness, the court should sustain the objection, and has no discretion to admit the evidence. See Third Great Western Turnp. R. Co. v. Loomis, 32 N. Y. 127; Shepard v. Parker, 36 N. Y. 517; South Bend v. Hardy, 98 Ind. 577.

e. Duty of the Court to Protect the Witness.-Zeal in a prosecuting attorney is entitled to the highest commendation, but that zeal must be exercised within proper limits. In civil cases counsel often take too much latitude in the cross-examination of witnesses. Witnesses are entitled to respectful consideration, and it is the duty of courts to see that they are protected from the insinuations and attacks of counsel, whether the insinuation or attack is direct or is in the form of a suggestive question. In criminal cases the prosecuting attorney is a public officer, acting in a quasi judicial capacity. Juries very properly regard him as unprejudiced, impartial, and non-partisan; and insinuations thrown out by him regarding the credibility of witnesses for the defense are calculated to prejudice the defendant. People v. Cahoon, 88 Mich. 456.

In Rickabus v. Gott, 51 Mich. 227, the court held that "the duty of the trial judge to repress needless scandal and gratuitous attacks on character is a very plain one, and good care should be taken to discharge it fully and faithfully." See also, as bearing upon this question, Bond v. Pontiac, O. & P. A. R. Co. 62 Mich. 643; Cronkhite v. Dickerson, 51 Mich. 178; Wheeler v. Wallace, 53 Mich. 356; People v. Hare, 57 Mich. 506. These cases also impose the duty on the judge to protect every witness from irrel

evant, insulting or improper questions, and from harsh or insulting treatment; and a witness shall be detained only so long as the interests of justice require.

f. Cross-examination During Absence of the Accused.Generally, it may be said that the continuance of a cross-examination of the people's witnesses during the brief absence of the prisoner on the trial is not a violation of the statutory provision that no person can be tried for a felony "unless he be personally present during such trial." People v. Bragle, 88 N. Y. 585, 42 Am. Rep. 269. Maurer v. People, 43 N. Y. 1, does not state a contra view, as in that case the absence was of some length and effected a substantial right of the accused.

g. Recalling Witness.-Whenever any witness has been examined in chief, the opposite party has a right to cross-examine him, and after the cross-examination is concluded the party who called the witness has a right to re-examine him. The court may, in all cases, permit a witness to be recalled either for further examination in chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and further re-examination respectively. Stephen, Dig. art. 126; Cummings v. Taylor, 24 Minn. 429; Com. v. McGorty, 114 Mass. 299; Continental Ins. Co. v. Delpeuch, 82 Pa. 225.

It is within the discretion of the judge at the trial, to permit a witness to be recalled to a fact in respect to which he had before testified, and to explain, qualify or contradict his former statements, and the discrepancy in the statements only affects his credibility. A court of review cannot revise or reverse the decision of the judge at the trial, in a matter properly resting in his discretion. Wright v. Willcox, 9 C. B. 650; People v. Cook, 8 N. Y. 67; Williams v. Sargeant, 46 N. Y. 482.

A witness once examined cannot be re-examined as to the same matter without leave of the court. But he may be re-examined as to any new matter, upon which he has been examined by the adverse party. After the examinations on both sides are once concluded, the witness cannot be recalled without leave of the court.

This is purely a discretionary matter and never a fit subject of review unless for gross abuse of the discretion.

Under obvious principles of justice the trial court should allow, in all cases, civil or criminal, a witness to explain an error or inadvertence in his testimony when he requests to do so before leav

ing the stand; and it is within the discretion of the court to recall him for that purpose. Oberfelder v. Kavanaugh, 21 Neb. 483. h. Views of Sir James Stephen.-Stephen, in his Digest of the Law of Evidence, expounds the law as follows:

"When a witness is cross-examined he may be asked any question which tends: 1. To test his accuracy, veracity, or credibility; or 2. To shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except in the case provided for in article 120, namely, where the answer might expose him to a criminal charge or penalty." Art. 129.

By placing such inquiries within the sound discretion of the court, the past lives of witnesses are not liable to be ransacked and exposed; for against such unreasonable and oppressive crossexaminations the power of the court may be interposed, on its own motion, to protect the witness and prohibit such questions. In the liberality allowed on cross-examinations, to promote the ends of justice, a sound discretion will never sanction inquiries the sole purpose of which is to disgrace the witness, and not to test his credibility. And whenever such is the object of it, it is the duty of the court to disallow it, and to confine the cross-examination to proper limits. It will be seen, therefore, that the abuse of such a cross-examination is guarded against: 1. By the privilege of the witness to decline to answer any question which may disgrace him, or may tend to charge him as a criminal; and 2. By the power of the court to interpose and to protect the witness, of its own motion. State v. Bacon, 13 Or. 143.

i. Cause for Remembering Certain Facts.-A witness is at liberty to state certain collateral facts that tend to fix some other fact about which he is being questioned in his memory, and it frequently occurs in all examinations that the fact of having had a conversation concerning a certain matter is one of the surest methods of remembering the subject-matter called for.

It is always competent for a witness to state that he had a conversation with a third person on a certain subject germane to the issue in dispute, and at a time specified, as a reason for his accurate recollection of the fact to which he has testified. The rules of evidence are those of common sense and human experience; and both of these teach us that the retentiveness of a witness's memory

as to a particular fact or indictment, is greatly improved where, after seeing or hearing of it, he subsequently converses about it. Adams v. Robinson, 65 Ala. 587.

j. The English Rule.-Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the action and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he has made such a statement, proof may be given that he did in fact make it.

The same course may be taken with a witness upon his examination in chief, if the judge is of opinion that he is "adverse" (i. e. hostile) to the party by whom he was called, and permits the question. Stephen, Dig. art. 131.

When a witness under cross-examination has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence can be given to contradict him, except in the following cases:

(1) If a witness is asked whether he has been previously convicted of any felony or misdemeanor, and denies or does not admit it, or refuses to answer, evidence may be given of his previous conviction thereof.

(2) If a witness is asked any question tending to show that he is not impartial, and answers it by denying the facts suggested, he may be contradicted. Stephen, Dig. art. 130.

§ 220. Importance of Cross-examination.-The importance and value of a cross-examination is truly and forcibly stated by Mr. Starkie in his work on Evidence, vol. 1, page 25. He says: "The power given to a party against whom evidence is offered, of cross-examining the witness upon whose authority the evidence depends, constitutes a strong test both of the ability and the willingness of the witness to declare the truth. By this means the opportunity which the witness had of ascertaining the fact to which he testifies, his ability to acquire the requisite knowledge, his powers of memory, his situation with respect to the parties, his motives, are all severally examined and scrutinized." Every person who has been engaged in the trial of causes in courts of