15

right of cross-examination for this purpose is a very important right. "Cross-examination," says Elliott, J., "is important, not only as a means of getting at, in full detail, all the facts within the range of the subject matter of the direct examination, but it is also an important means of testing the memory of a witness, as well as a potent means of ascertaining the truth of his statements. An apt illustration of this principle is found in the rule that, where one party calls a witness who details a part of a conversation, the other party is entitled to bring out, by crossexamination, the whole of the conversation, so far as it is relevant to the issues, or so far as it affects the credibility of the witness. 1 So, where a witness has given his opinion as to value, he may be cross-examined with great latitude as to the reasons or basis of such opinion," the limits of which, where no rule of law is violated, are within the discretion of the presiding judge.18 So, the facts and reasons upon which an expert witness bases his conlusions may be brought out on crossexamination, although the cross-examination extends beyond the scope of the evidence.19 For the purpose of testing his skill, irrelevant hypothetical questions may be put to

16

15 Hyland v. Milner, 99 Ind. 308, 310. Apt illustrations of this purpose of cross-examination and of the rights in respect of it, will be found in the following cases: Barker v. Blount, 63 Ga. 434; People v. Russell, 46 Cal. 121; Lemprey v. Munch, 21 Minn. 379; Steinberg v. Meany, 53 Cal. 425; Marion v. State (Neb.), 29 N. W. Rep. 911; People v. Morrigan, 29 Mich. 5; Wilbur v. Flood, 16 Mich. 40; Jackson v. State, 78 Ala. 471; Hamilton v. People, 29 Mich. 173, 181; Blake v. Powell, 26 Kan. 320; Thornburg v. Hand, 7 Cal. 554.

16 Addison v. State, 48 Ala. 478; Phares v. Barber, 61 Ill. 272; Sager v. State, 11 Tex. App. 110; Metzer v. State, 39 Ind. 596; Fletcher v. State, 49 Ind. 124; 8. C., 19 Am. Rep. 673; Harness v. State, 57 Ind. 1; Roberts v. Roberts, 86 N. C. 9; McIntyre v. Thompson, 14 Bradw. (Ill.) 554; Hatch v. Potter, 2 Gilm. (Ill.) 725. So, where the witness has testified to a part of the testimony of a witness on another trial, he may be asked, on cross-examination, what other facts the witness testified to. Carey v. Richmond, 92 Ind. 259, compare Harper v. Harper, 57 Ind. 547. But it has been ruled that, where the party's own witness first speaks of the conversation, although on cross-examination, the party is not thereby entitled to make all that was said evidence in his own behalf. Addison v. State, 48 Ala. 478.

17 Missouri, etc. R. Co. v. Haines, 10 Kan. 439; Central Branch, etc. R. Co. v. Andrews, 30 Kan. 509; Atchison, etc. R. Co. v. Blackshire, 10 Kan. 477, 486; Markel v. Moudy, 13 Neb. 323, 327; Dickenson v. Fitchburg, 13 Gray (Mass.), 546.

18 Miller v. Smith, 112 Mass. 470.

19 Erickson v. Smith, 2 Abb. App. Dec. (N. Y.) 65.

him, and he may be required to give his opinion thereon;20 and, within reasonable limits, books of science may be read to him, and he may be required to give his opinion on the statements made therein.21 And, in general, a cross-examination should be permitted as to all matters developed on the direct examination,22 and great latitude should be allowed in conducting the same,23 the extent and limits of which, where no rule of law is violated, rest in the sound discretion of the trial court.24 Such examination may justly extend to all matters which limit, qualify, or explain the facts stated on the direct examination, or which modify the inferences deducible therefrom,25 though the court may restrain it within the bounds of courtesy and propriety.26

20 Louisville, etc. R. Co. v. Falvey, 104 Ind. 409; Davis v. State, 35 Ind. 496, 498; s. c., 9 Am. Rep. 760; Rogers' Exp. Test. 50.

21 Connecticut Mutual Life Ins. Co. v. Ellis, 89 Ill. 515. For an instance of an improper cross-examination of a medical expert, see Gridley v. Boggs, 62 Cal. 191.

22 Shuster v. Stout, 30 Kan. 529; Commissioners v. Craft, 6 Kan. 145; Sumner v. Blair, 9 Kan. 521; Callison v. Smith, 20 Kan. 28, 1 Greenl. Ev., § 445.

23 Atchison, etc. R. Co. v. Blackshire, 10 Kan. 477, 487; Ingram v. State, 67 Ala. 67, 71. See also, Stoudenmeier v. Williamson, 29 Ala. 514. On the trial of an indictment for murder, it has been said that the broadest latitude should be allowed the defendant in the cross-examination of such of the State's witnesses as were active partisans in the difficulty which led to the killing, and who are hostile in their feelings toward the defendant; and, on the other hand, that the examination of such witnesses by the people should be correspondingly restricted. Sutton v. People, 119 Ill. 250. 24 Miller v. Smith, 112 Mass. 470, 476; Hathaway v. Crocker, 7 Metc. (Mass.) 262, 266; Com. v. Sacket. 22 Pick. (Mass.) 394; Winship v. Neale, 10 Gray (Mass.), 382; Swan v. Middlesex, 101 Mass. 173; Johnston v. Jones, 1 Black. (U. S.) 209, 226; Fry v. Bennet, 3 Bosw. (N. Y.) 200; Knight v. Cunnington, 6 Hun (N. Y.), 100; Wallace v. Taunton St. R. Co. 119 Mass. 91; Ledford v. Ledford, 95 Ind. 283; Oliver v. Pate, 43 Ind. 132; Wachstetter v. State, 99 Ind. 290; s. c. 50 Am. Rep. 94. The Supreme Court of Kansas say: "Great latitude is, and should be allowed in the cross-examination of a witness as to his interest in the suit, his friendship or hostility towards the parties, his motives and prejudices." State v. Collins, 33 Kan. 77, 80. The Supreme Court of Wisconsin has said: "On the crossexamination of a witness, anything which shows his friendship or enmity to either of the parties to the suit is commonly a proper subject of inquiry. So also, is everything which tends to show that, in the circumstances in which he is placed, he has a strong temptation to swear falsely. It is to be remembered that the jury are sole judges of the credibility of the witness, and that whatever tends to assist them in the judgment which they are to form upon this subject, ought not to be withheld from them." Kellogg v. Nelson, 5 Wis. 125, 131.

25 Blake v. Powell, 26 Kan. 320, 326. See to the same

§ 5. English Rule of Cross-examination on the Whole Case.-The rule of the English courts, in force in some of the American state courts, allows the cross-examination of a witness to extend beyond the matter of his direct examination, to any facts which are relevant to the issues,30 subject to the rule, already spoken of, that the extent to which leading questions will be allowed in developing new matter rests in the discretion of the trial judge. In the application of this rule, it seems that a witness in the English courts, who has been called, may be cross-examined by the opposite party, although he has not been substantially examined in chief, unless he was called by mistake, or unless his examination was stopped by the judge when he had

33

32

effect, Coates v. Hopkins, 34 Mo. 135; Detroit, etc. R. Co. v. Van Steinburg, 17 Mich, 99, 109; Haynes v. Ledyard, 33 Mich. 319; Ferguson v. Rutherford, 7 Nev. 385; Atchison, etc. R. Co. v. Blackshire, 10 Kan. 477; Field v. Davis, 27 Kan. 400.

26 Blunt v. State, 9 Tex. App. 234.

Jacobson v. Metzger, 35 Mich, 103; Anderson v. Walter. 34 Mich. 113; Koek v. Fielding, 50 Wis. 399; Schuster v. Wingert, 30 Kan. 529.

28 Bowers v. Mayo, 32 Minn. 241.

29 Clark v. Reiniger, 66 Ia. 507.

30 Massachusetts: Webster v. Lee, 5 Mass. 335: Merrill v. Berkshire, 11 Pick. (Mass.) 269, 274; Moody v. Rowell, 17 Pick. (Mass.) 490, 498; s. C., 28 Am. Dec. 317; Blackington v. Johnson, 126 Mass. 21; Beal v. Nichols, 2 Gray (Mass.), 262. New York: Varick v. Jackson 2 Wend. (N.Y.) 166; s.C., 19 Am. Dec. 571; Fulton Bank v. Stafford, 2 Wend. (N. Y.) 483, (but doubtful). Vermont: Linsley v. Lovely, 26 Vt. 123. Ohio: Legg v. Drake, 1 Oh. St. 286. Missouri: Page v. Kankey, 6 Mo. 433; Brown v. Burrus, 8 Mo. 26; St. Louis, etc. R. Co. v. Silver, 56 Mo. 265; State v. Sayres, 58 Mo. 585. Wisconsin: Knapp v. Schneider, 24 Wis. 70. Louisiana: Durnford v. Clark, 1 Mart. (La.) 202; Davidson v. Lallande, 12 La. Ann. 826. 828; Nicholson v. Desobry, 14 La. Ann. 81, 84; King v. Atkins, 33 La. Ann. 1057, 1064. South Carolina: Kibler v. McIlwain, 16 S. C. 551. It was assumed that this was the rule in Clinton v. Mc Kenzie, 5 Strobh. L. 36, 41. Alabama: Kelly v. Brooks, 25 Ala. 523; Fralick v. Presley, 29 Ala. 457, 461.

31 2 Phil. Ev., 896, 911; Morgan v. Brydges, 2 Stark. 314; Rex. v. Brooks, Id. 472.

32 Phillips v. Middlesex, 1 Esp. 355.

33 Clifford v. Hunter, 3 Car. & P. 16; s. c., Mood. & M. 103; Wood v. Mackinson, 2 Mood & Rob. 273.

34

answered only an immaterial question, or unless he testified to nothing in chief, and an effort is made to cross-examine him for the purpose of discrediting him.35 Under the operation of this rule, a witness called for the prosecution in a criminal case may be examined as to all matters involved in the case, no matter how formal or unimportant his direct examination may have been.36

§ 6. American Rule of Strict Cross-Examination. By a rule existing in the federal, and in several of the American State courts,37 cross-examination is confined to the matter stated by the witness on his direct examination. If the adverse party wishes to examine him outside of this, he must call him as his own witness at the proper stage of the trial. According to a learned and accurate writer, "the limits of a strict cross-examination, within the meaning of this rule, include whatever tends to qualify or explain his testimony, or rebut or modify any inference resulting from it."38 Another view widens this conception so as to let in the cross-examination of the plaintiff's witness as to all matters touching the plaintiff's case, excluding 34 Creevy v. Carr, 7 Car. & P. 64.

35 Bracegirdle v. Bailey, 1 Fost. & Finn. 536. 36 State v. Brady, 87 Mo. 142.

37 Philadelphia, etc. R. Co. v. Stimpson, 14 Pet. (U. J.) 448; Houghton,v. Jones, 1 Wall. (U. S.) 702; Wills v. Russell, 100 U. S. 621, 1 Greenl. Ev., § 445. This rule has been adopted in the following States: Pennsylvania: Hughs v. Westmoreland Coal Co., 104 Pa. St. 207, 213; Monongahela Water Co. v. Stewartson, 96 Pa. St. 436; Jackson v. Litch, 62 Pa. St. 451. Maryland: Herrick v. Swomley, 56 Md. 439, 455; Griffith v. Diffenderffer, 50 Md. 466, 478. Indiana: Stinhouse v. State, 47 Ind, 17; Aurora v. Cobb, 21 Ind. 493; Patton v. Hamilton, 12 Ind. 256. Illinois: Stafford v. Fargo. 35 Ill. 481; Lloyd v. Thompson, 5 Bradw. (Ill.) 90, 96; Stevens v. Brown, 12 Bradw. Ill. 619, 622; Bell v. Prewitt, 62 Ill. 361. Iowa: Glenn v. Gleason, 61 Ia. 28, 32; Pellersells v. Allen, 56 Ia. 717; s. c., 10 N. W. Rep. 261. Nebraska: Clough v. State, 7 Neb. 320, 341; Boggs v. Thompson, 13 Neb. 403; Davis v. Neligh, 7 Neb. 84; Coel v. Roche, 15 Neb. 24; s. c., 17 N. W. Rep. 119. New York: Neil v. Thorn, 88 N. Y. 270, 275; Hartness v. Boyd, 5 Wend. (N. Y.) 563. [In Neil v. Thorn, supra, it is said that the trial court may, in its discretion, relax the rule, so as to allow the cross-examining party to go beyond the limits of the direct examination.] California: McFadden v. Mitchell, 61 Cal. 148. Nevada: Ferguson v. Rutherford, 7 Nev. 385, 390. And in the territory of Arizona: Rush v. French, 1 Ariz. 99, 139.

38 Abb. Tr. Brief, 46; citing Wilson v. Wagar, 26 Mich, 452; Campau v. Dewey, 9 Id. 381, 419; Haynes v. Ledyard, 33 Id. 319; Ferguson v. Rutherford, 7 Nev. 385; Baird v. Daly, 68 N. Y. 547, 550; Mayer v. People, 80 N. Y. 364, 378. See the statements of the rule in Hughes v. Westmoreland Coal Co., 104 Pa. St. 207, 213, and in Rush v. French, 1 Ariz. Ter. 99, 139.

it as to any extrinsic matter of defense.39 In no view can the defendant open up an extrinsic defense by cross-examining the plaintiff's witness, unless it was touched upon in the direct examination.40 Thus a witness called to prove the execution of an instrument" or the identity of a thing,42 cannot be cross-examined as to consideration. The effect of the rule is that, if a party extends the crossexamination into new matter, he thereby makes the witness his own, and gives the party originally calling him a right to cross-examine him as to such new matter. So, while, under the English rule, the cross-examining counsel may put leading questions in developing new matter, he cannot do so under the American rule, since this would enable him to develop his own case, untrammeled by the rules which govern direct examination.46 But there is a modified view, that leading questions may be allowed, or denied, 48 in the discretion of the court. 49 Indeed, there is a discernible

45

47

39 Rush v. French, 1 Ariz. Ter. 79, 139; Henderson v. Hydraulic Work, 9 Phila. (Pa.) 100, opinion by Hare, P. J. Such also is the rule of the common law as practiced in New York, Massachusetts and Vermont. Fulton Bank v. Stafford, 2 Wend. (N. Y.) 483; Moody v. Rowell, 17 Pick. (Mass.) 490, 496; Beal v. Nichols, 2 Gray (Mass.), 262; Linsley v. Lovely, 26 Vt. 123.

40 Martin v. Elden, 32 Oh. St. 282. 41 Lamprey v. Munch, 21 Minn. 879. 42 Bell v. Prewitt, 62 Ill. 362. Contra: Jacobson v. Metzger, 25 Mich. 103. Other illustrations of the rule will be found in Hull v. State, 93 Ind. 128; Stinhouse v. State, 47 Ind. 17; Glenn v. Gleason, 61 Iowa, 28, 31; Gilmer v. Higley. 110 U. S. 47; Oldershaw v. Knowles, 101 III. 117.

43 So held in Bassham v. State, 38 Tex. 632.

44 Dickenson v. Shee, 4 Esp. 67; Moody v. Rowell, 17 Pick. 490, 498; s. c., 28 Am. Dec. 317; Beal v. Nichols, 2 Gray (Mass.), 264; Jackson v. Varick, 7 Cow. (N. Y.) 238.

45 Harrison v. Rowan, 3 Wash, C. C. (U.S). 580; Landsberger v. Gorham, 5 Cal. 451; Aitken v. Mendenhall, 25 Cal. 213; Wetherbee v. Dunn, 32 Cal. 106; Harper v. Lamping 33 Cal. 641, 647; Ferguson v. Rutherford, 7 Nev. 385, 390. See also Houghton v. Jones, 1 Wall. (U. S.) 705; Jackson v. Feather R. W. Co., 14 Cal. 19, 24; Tuornton v. Hook, 36 Cal. 223; Ellmaker v. Buckley, 16 Serg. & R. (Pa.) 71, 77; Philadelphia, etc. R. Co. v. Stimpson, 14 Pet. (U. S.) 448; Castor v. Bavington, 2 Watts & S. (Pa.) 505; Floyd v. Bovard, 6 Watts & S. (Pa.) 75; Jackson v. Son, 2 Caines (N. Y.), 178; People v. Moore, 15 Wend. (N. Y.) 419.

46 People v. Oyer & Terminer, 83 N. Y. 438, 459, affirming; s. C., 19 Hun (N. Y.), 91, where the subject is fully and ably discussed by Brady, J.

47 Harrison v. Rowan, 3 Wash. C. C. (U. S.) 580. 48 Ellmaker v Buckley, 19 Serg. & R. (Pa.) 72, 77. 49 See Moody v. Rowell, 17 Pick. (Mass.) 490, 499; 8. c., 28 Am. Dec. 317, for reason given by Chief Justice Shaw in favor of the rule allowing leading questions; and Beal v. Nichols, 2 Gray (Mass.), 264, for a re-af

50

tendency in several courts to relax the strictness of the American rule, in the exercise of a sound discretion, to meet the exigencies of particular cases. Such a discretion may be properly exercised in the case of the crossexamination of a party who testifies as a witness in his own behalf.51

§ 7. Questions Affecting the Credibility of the Witness.-A leading object of cross-examination is to discover the motives, inclinations and prejudices of the witness, for the purpose of reducing the credit which might otherwise be given to his testimony.52 Accordingly, it is always competent to subject him to such cross-examination as will show the relations which exist between him and the party for or against whom he is called as a witness.53 For this purpose, he may be interrogated as to his hostility or prejudice,54 and, in general, as to his state of mind touching the cause or the parties, such an inquiry not being collateral or immaterial.55 His relationship to a party,56 his interest in the event of the suit,57 or any other matter which

firmation of those reasons after many years experi

ence.

50 Glenn v. Gleason, 61 Ia. 28, 32; Hughes v. Westmoreland Coal Co., 104 Pa. St. 207, 213; Haynes v. Ledyard, 33 Mich. 319; see as to the Michigan rule, Chandler v. Allison, 10 Mich. 460; Thompson v. Richards, 14 Mich. 172; Detroit, etc. R. Co. v. Van Steinberg, 17 Mich. 99; Herrick v. Swomley, 56 Md. 439, 455. Compare Griffith v. Diffenderffer, 50 Md. 466, 478.

51 Rea v. Missouri, 17 Wall (U.S.), 532, 542. Compare Bubaker v. Taylor, 72 Pa. St. 83.

52 1 Greenl. Ev. 12th ed. § 446.

58 Starks v. People, 5 Denio, 106. See also Newton v. Harris, 2 Seld. (N. Y.) 345; Cameron v. Montgomery, 13 Serg. & R. 128; Howard v. City Fire Ins. Co., 4 Denio (N. Y.), 502; Turnpike Co. v. Loomis, 32 N. Y. 127; Madden v. Koester, 52 Ia. 693; People v. Furtado, 57 Cal. 346; Dance v. McBride, 43 Ia. 624; Miles v. Sackett, 30 Hun (N. Y.), 68; Com. v. Gallagher, 126 Mass. 54; State v. Krum, 32 Kan. 372,375; Harris v. Tippett, 2 Camp. 637; Att'y. General v. Hitchcock, 11 Jur. 478; Morgan v. Frees, 1 Am. L. Reg. 92; Chapman v. Coffin, 14 Gray, 454; Davis v. Roby, 64 Me. 430; Cameron v. Mongomery, 13 Serg. & R. (Pa.) 128; Batdorff v. Bank, 61 Pa. St. 183; 1 Whart. Ev. 566; 1 Greenl. Ev. 13th ed. 449, 455, 459, 461.

54 Watson v. Twombly, 60 N. H. 491; Brewer v. Crosby, 11 Gray (Mass.), 29; People v. Casey, 72 N. Y. 393, 398.

55 Watson v. Twombly, 60 N. H. 491; Martin v. Farnham, 25 N. H. 197; Folsom v. Brawn, Id. 114; Combs v. Winchester, 39 N. H. 13; Carr v. Moore, 41 N. H. 131; Sumner v. Crawford, 45 N. H. 416; Collins v. Stephenson, 8 Gray (Mass.), 438; Day v. Stickney, 14 Allen (Mass.), 255.

56 State v. Willingham, 33 La. Ann. 537; People v. Benson, 52 Cal. 380.

57 Vaughan v. Westover, 4 Thomp. & C. (N. Y.) 316; Phoenix Ins. Co. v. Sholes, 20 Wis. 35; Cornell v.

may fairly be supposed to have influenced his testimony,58 may be shown; and the better opinion is that the details and circumstances, touching his ill-will towards the crossexamining party, may be gone into, for the purpose of showing the degree or intensity of his ill-feeling.59 He may be interrogated as to his attempts to suborn other witnesses in the case.60

§ 8. Questions Affecting the Character of the Witness.-There is a conception that the cross-examining party may rightfully ask the witness any question, the answer to which tends to injure his character or credit, however irrelevant to the issues or disgraceful to the witness, provided the answer would not expose him to a criminal charge, and even in such case, if he does not claim his privilege.61 The more widely prevailing view is that it is within the discretion of the trial judge to say how far such a course of examination shall be pursued." 62 There is a view that collateral

Barnes, 26 Wis. 473; Suit v. Bonnell, 33 Wis. 180. See also Starks v. People, 5 Denio, 106; People v. Cunningham, 1 Denio (N. Y.), 524; Newton v. Harris, 6 N. Y. 345; Wells v. Kelsey, 37 N. Y. 143, 146; McCabe v. Brayton, 38 N. Y. 196; People v. Albright, 23 How. Pr. (N. Y.) 306; Turner v. Austin, 16 Mass. 181, 185; Garfield v. Kirk, 65 Barb. (N. Y.) 464; Knight v. Forward, 63 Barb. (N. Y.) 311, 329.

58 Atchison, etc. R. Co. v. Blackshire, 10 Kan. 477, 487.

59 State v. Collins, 33 Kan. 77, 81; State v. Dee, 14 Minn. 35, 30. See also Batdorff v. Bank, 61 Pa. St. 179, 183; Davis v. Roby, 64 Me. 427, 430; McFarlin v. State, 41 Tex. 23. Contra: Conyars v. Field, 61 Ga. 258; Bishop v. State, 9 Ga. 260; Patman v. State, 61 Ga. 379.

60 The Queen's Case, 2 Brod. & Bing. 312; Morgan v. Frees, 15 Barb. (N. Y.) 352; State v. Downs (Mo.), 3 S. W. Rep. 219; s. c. 91 Mo. 19. Compare Oberfelder v. Kavanaugh (Neb.), 32 N. W. Rep. 296; s. c. 21 Neb. 483. Though it has been held that a prosecuting witness in a criminal case cannot be interrogated as to a previous offer to settle. People v. Genung, 11 Wend. (N. Y.) 19. For other illustrations of the extent to which a witness may be examined for the purpose of developing his feelings or relation toward parties, see Com, v. Gallagher, 126 Mass. 54; Miles v. Sackett, 30 Hun (N. Y.), 68; Sager v. State, 11 Tex. App. 110; People v. Furtado, 57 Cal. 346; Dance v. McBride, 43 Ia. 624, 627; Wallace v. Taunton Street Ry. Co. 119 Mass. 91; State v. Willingham, 33 La. Ann. 537; People v. Wasson, 65 Cal. 538; Hamilton v. People, 29 Mich. 173, 182; Geary v. People, 22 Mich. 220; Watson v. Twombly, 60 N. H. 491.

61 Muller v. St. Louis Hospital Assn., 5 Mo. App. 390; 8. C., affirmed, 73 Mo. 243.

62 Real v. People, 42 N. Y. 270; Ryan v. People, 19 Hun (N. Y.), 188. See also Maine v. People, 9 Hun (N. Y.), 113; Vaughan v. Westover, 2 Hun, 43; Stokes v. People, 53 N. Y. 164; Russell v. St. Nicholas, etc. Co. 51 N. Y. 643; Allen v. Bodine, 6 Barb. 383; Storm v. United States, 94 U. S. 76, 85; Sturgis v. Robbins, 62 Me. 289, 293; Prescott v. Ward, 10 Allen, 203, 209; Wroe v.

63

inquiries cannot be gone into at all, for the purpose of discrediting a witness; though the better opinion is that already stated, that such inquiries are permissible in the sound discretion of the trial court,64 which discretion is not subject to review, except in cases of manifest abuse.65 According to this view, it is discretionary with the trial judge to permit the cross-examination to be extended to inquiry as to particular acts of immorality or criminality on the part of the witness, or even convictions of crime.66 Other decisions present contrary and confusing views;67 and still others stumble on the question whether a witness can be asked, on cross-examination, as to having been convicted of crime, although no person can know better than he,-or whether such fact is to be proved by the rec

State, 20 Ob. St. 460; 1 Greenl. Ev. § 449; People v. Arnold, 40 Mich. 710; Great Western, etc. Co. v. Loomis, 32 N. Y. 127; Bank v. Slemmons, 34 Oh. St. 142; People v. Court, 83 N. Y. 436, 460: Gutterson v. Morse. 58 N. H. 165; State v. R. R., 58 N. H. 410, 412; Plummer v. Ossipee, 59 N. H. 55, 57; Free v. Buckingham, 59 N. H. 219; Merrill v. Perkins, 59 N. H. 343, 345; Perkins v. Towle, 59 N. H. 583; Tilton v. Am. Bible Society, 60 N. H. 377, 384. For forcible judicial expressions upon this question, see LeBcau v. People, 34 N. Y. 223, 234; Newcomb v. Griswold, 24 N. Y. 298; Real v. People, 42 N. Y. 270. 281; Wilbur v. Flood, 16 Mich, 40, 43; Foster v. People. 18 Mich. 266. 271. For the views of Dr. Greenleaf in favor of the rule of the text, see 1 Greenl. Ev. 14th ed. §§ 455, 459.

63 Rex A. Watson, 2 Stark. 149; Spenceley v. De Willott, 7 East, 108; s. c., 3 Smith, 289; Marks v. Hilsendegen, 46 Mich. 336; Bissell v. Starr, 32 Mich. 299; Tennant v. Hamilton, 7 Cl. & Fin. 122.

64 Storm v. United States, 94 U. S. 76; Johnson v. Jones, 1 Black (U.S.), 209; State v. Rollins, 77 Me. 380; People v. Blakeley, 4 Park. Cr. 176; Pooler v. Curtiss, 3 Thomp. & C. (N. Y.) 228; Schenck v. Griffin, 38 N. J. L. 463, 471; Watson v. Twombly, 60 N. H. 491, 493.

65 Clinton v. State, 33 Oh. St. 27. 34; Wroe v. State, 20 Oh. St. 460 Stanbro v. Hopkins, 28 Barb. (N. Y.) 270; People v. McGarren, 17 Wend. (N. Y.) 460; 2 Tayl. Ev. § 1253.

66 South Bend v. Hardy, 98 Ind. 577, 583. Compare Bersch v. State, 13 Ind. 434; Wilson v. State 16 Ind. 392; Smith v. Yaryan, 69 Ind. 445; s. C., 35 Am. Rep. 232; Ryan v. People, 19 Hun (N. Y.), 188; distinguishing People v. Brown, 72 N. Y. 571. See also, People v. Genet, 19 Hun (N. Y.), 92 102; Hamilton v. People, 29 Mich. 173, 183; People v. Manning, 48 Cal. 335; People v. Hovey, 29 Hun (N. Y.), 383, 390; Klein v. Russell, 19 Wall. (U. S.) 433; People v. Arnold, 40 Mich. 710; Leland v. Kauth, 47 Mich. 508; People v. White, 53 Mich. 537, 539; United States v. Wood (Dak.), 33 N. W. Rep. 59. Francis, J., dissented.

67 Madden v. Koester, 52 Ia. 692; Shattuck v. Myers, 13 Ind. 146; Long v. Morrison, 14 Ind. 595. Compare Wilson v. State, 16 Ind. 392; Smith v. Yaryan, 69 Ind. 445; 8. C., 35 Am. Rep. 232; Chelton v. State, 45 Md. 565; Hamilton v. People, 29 Mich. 175, 183: Mitchell v. Com. 75 Va. 856.

ord alone.68 Another court has drawn an impalpable distinction between questions creating prejudice against a witness, but not affecting his credibility. Finally, all courts

agree that a witness cannot be cross-examined as to any matters which are purely collateral to the issues on trial, with the view of impeaching him by contradiction;70 which means that if such examination is permitted, his answers are conclusive."1 For instance, if the prosecutrix in a bastardy case is asked whether she has had sexual intercourse with another man, and answers in the negative, the contrary cannot be shown by other testimony.72 There is authority for the view that a wider range of cross-examination will be allowed in this respect where the opposite party is testifying as a witness, 78 though, even here,

68 People v. Rodrigo, 69 Cal. 601; s. c. 8 Crim. Law, May. 503; People v. Manning, 48 Cal. 335; Peck v. Yorks, 47 Barb. (N. Y.) 131, 134; Newcomb v. Griswold, 24 N. Y. 298. See also Brown v. People. Hun (N. Y.) 562. The court cite, Jackson v. Osborn, 2 Wend. (N. Y.) 555; People v. Gray, 7 N. Y. 378; Lipe v. Eisenlerd, 32 N. Y. 229, 238, and distinguish, Brandon v. People, 42 N. Y. 265.

69 Pooler v. Curtiss, 3 Thomp. & C., nying the dictum of Peckham, J., in man, 46 N. Y. 210.

(N. Y.), 228, deRoss v. Acker

70 Clinton v. State, 33 Oh. St. 27, 34; Spenceley v. De Willott, 2 Lewin C. R. 155, n; s. C., 7 East, 110; Smith v. State, 5 Neb. 183; Henderson v. State, 1 Tex. App. 432; People v. Devine, 44 Cal. 452, 458; People v. Furtado, 57 Cal. 346; Hester v. Com. 85 Pa. St. 139, 157; Harris v. Wilson, 7 Wend. (N. Y.) 57; Lee v. Chadsey, 2 Keyes (N. Y.), 546; People v. Cox, 21 Hun (N. Y.), 47.

71 Leavitt v. Stansell, 44 Mich. 424; People v. McKeller, 53 Cal. 65: People v. Bell, 53 Cal. 119; Newberry v. Furnival, 46 How. Pr. (N. Y.) 139; Crounse v. Fitch, 6 Abb. Pr. (N. S.) (N. Y.) 185; Kaler v. Builders' Mutual Fire Ins. Co., 120 Mass. 333, 336; Farnum v. Farnum, 13 Gray (Mass.) 508; Com v. Cain, 14 Gray (Mass.) 7; Fletcher v. Boston & Maine R. R., 1 Allen (Mass.) 9; People v. Webb (Cal.), 11 Pac. Rep 509; s. c., 70 Cal. 120; Gaines v. Com. 50 Pa. St. 319, 327; State v. Patterson, 74 N. C. 157; Harris v. Tippett, 2 Camp. 637; Rex v. Watson, 2 Stark, 116, 149; Rex v. Rudge, Peake Add. Cas. 232; Madden v. Koester, 52 Ia. 693; Hawkins v. Pleasants, 71 N. C. 325; State v. Roberts, 81 N. C. 606; State v. Patterson, 2 Ired. L. (N. C.) 346. 72 State v. Patterson, 74 N. C. 157. Other good illustrations of the principle will be found in the following cases: State v. Patterson, 2 Ired. L. (N. C.) 346; Clark v. Clark, 65 N. C. 655; Wilder v. Peabody, 21 Hun (N. Y.), 376; Kaler v. Builders' Mutual Ins. Co., 120 Mass. 333; Tolman v. Johnston, 2 Fost. & Fin. 66; People v. Cox, 21 Hun (N. Y.), 47. Compare, Hogan v. Cregan, 6 Rob. (N. Y.) 138; Com. v. Bean, 111 Mass. 438; Thomas v. David, 7 Carr. & P. 350; People v. McKeller, 53 Cal. 65; People v. Bell, 53 Cal. 119. It is said in People v. Cox, supra. that Greenfield v. People, 13 Hun (N. Y.), 244 was not intended to be carried beyond the above authorities, some of which are therein cited.

73 Norris v. Cargill, 57 Wis. 251, 255; Knapp v.

the rule does not extend to the asking of frivolous or immaterial questions.74 It should be added that, where the witness is interrogated on cross-examination, as to previous hostile declarations, he has the conceded right to explain on re-examination.75

§ 9. Cross-examination as to Previous Contradictory Statements for the Purpose of Impeachment. The rule last discussed concerning collateral inquiries, does not extend so far as to prohibit cross-examination of the witness as to any previous declarations or statements which he may have made, contradictory to or inconsistent with his testimony on the witness stand. On the contrary, this is one of the recognized modes of impeachment. It is the absolute right of the crossexamining party to lay a foundation for impeaching the witness, by interrogating him as to whether or not he has made contradictory declarations on a former occasion, and the exclusion of questions put for this purpose is error, for which a judgment will be reversed;76 and, where the appropriate foundation has been laid by thus interrogating the witness, it is equally the right of the crossexamining party to introduce evidence showing that such contradictory declarations were in fact made." The rule extends even to previous acts, which are inconsistent with his testimony on the stand;78 but it does not extend to contrary expressions of opinion merely.79 Nor, on the other hand, is it necessary, in order to admit evidence of such previous declarations, that they should have been intentionally false.80 Nor does the right to impeach the witness in this manner depend

Schneider, 24 Wis. 70. The subject of the cross-examination of accused persons, who offer themseves as witnesses in criminal trials, is reserved for a future chapter. Howland v. Jenks, 7 Wis. 57; State ex rel. v. Phillips, 70 N. C. 462; South Bend v. Hardy, 98 Ind. 577.

74 Walthelm v. Arts, 70 Ia. 609; s. c., 31 N. W. Rep. 953.

75 State v. Stewart, 11 Ore. 52. See also United States v. Eighteen Barrels of High Wines, 8 Blatchf. (U. S.) 475, 478; Lewis v. State, 35 Ala. 380; Haley v. State, 63 Ala. 83; McAffee, v. State, 31 Ga. 411: Harrison's Appeal, 48 Conn. 202; McDonald v. McDonald, 55 Mich. 155.

76 Pruitt v. Brockman, 46 Ind. 56; McFarlin v. State, 41 Tex. 23; Turney v. State, 9 Tex. App. 193. 77 Joseph v. Com. (Ky.) 1 S. W. Rep. 4; State v. Downs (Mo.), 3 S. W. Rep. 219; s. c., 91 Mo. 19. 78 Hyland v. Milner, 99 Ind. 308.

79 Com. v. Mooney, 110 Mass. 99; Sloan v. Edwards, 61 Md. 90, 104.

80 Craig v. Rohrer, 63 Ill. 325.