persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them." (Code Civ. Proc., sec. 2052.) The document upon which this cross-examination was based was offered to the defendant to read before requiring a reply. That the question propounded was clearly within the rule authorizing the impeachment of a witness is beyond doubt. The late case of Gasquet v. Pechin, 143 Cal. 521, [77 Pac. 481), puts the question beyond all cavil. There are, however, many California cases in support of the correctness of the ruling of the lower court. (People v. Lambert, 120 Cal. 176, [52 Pac. 307); People v. Bushton, 80 Cal. 160, [22 Pac. 127, 549) ; People v. Gardner, 98 Cal. 132, (32 Pac. 880]; People v. Turner, 65 Cal. 540, (4 Pac. 553); People v. Bosquit, 116 Cal. 75, (47 Pac. 879).)

The defendant, according to the testimony of plaintiff, when the latter informed him of her condition, advised her to consult a doctor, and gave her a small sum of money with which to pay the fee. He requested her to write to him from her home in San Francisco the result of the examination by the doctor. In accordance with this arrangement, the plaintiff consulted a physician and was told by him that she was in a delicate condition. She thereupon addressed a letter to the defendant imparting to him this information. No reply was made to the letter. Upon cross-examination he was asked if he had received such letter, and was required, against the objection of his counsel, to answer the question. It is claimed that this was not proper crossexamination. We do not think the court erred in its ruling. The defendant had in his direct testimony made denial of a promise to marry plaintiff, denied having been sexually intimate with her, denied having given her money for the purpose of paying the doctor, and, in short, denied in toto all the inculpatory statements against him testified to by plaintiff. The question was in principle the same as if he had been asked if he had not been personally accused by plaintiff of the paternity of the child and had made no reply to the accusation. The plaintiff testified that the letter not only conveyed to defendant the information concerning her condition, as the doctor had diagnosed it, but reminded de fendant "that he must now keep his promise (of marriage), as there was no time to lose." If the defendant received such a letter and remained silent under the charges which by inference it contained, then the fact of its receipt and his failure to reply might tend in a degree to contradict his denial of the promise of marriage and seduction, or at least discredit to some extent his testimony. “Great liberality should be allowed in the cross-examination of a witness, for the purpose of testing his accuracy and credibility; and where questions asked appear to relate to facts and circumstances within the general scope of the direct examination, it is error to exclude them." (People v. Westlake, 124 Cal. 452, (57 Pac. 465).) And “the extent to ich the crossexamination of a witness shall be carried is, in some degree, a matter of discretion in the trial court; and its ruling will not be disturbed upon appeal if no abuse of discretion appears. (Grimbley v. Harrold, 125 Cal. 24, (73 Am. St. Rep. 19, 57 Pac. 5581.) We think the question was within the general scope of the direct examination.

On direct examination Dr. Rowell, defendant's physician, was asked: “State whether or not the objective symptoms confirmed the subjective symptoms upon your examination in 1900." The court sustained an objection by plaintiff to this question. The ground of the objection, that it was irrelevant and incompetent, and not proper redirect examination, was perhaps not well taken, but the court refused to allow the question to be answered because it was a mere repetition of what the witness had already testified to. The witness on direct had fully explained, referring to defendant's alleged impotency, that in his examination of defendant the subjective and objective symptoms of such incapacity concurred; or, in other words, the physical condition of the defendant coincided with what the defendant had told him of his symptoms as they manifested themselves to him. There was no necessity of repeating the testimony, and, while no harm could have come from permitting the answer, we can perceive none in refusing it.

A number of witnesses were permitted to testify on the part of defendant as to his general reputation where he resided for chastity and morality. The witness, Schmidt, in addition to the question propounded as to his knowledge of defendant's general reputation for the traits mentioned, was

also asked, having said that he knew the general reputation of defendant for integrity, whether it was good or bad. To this question the court sustained an objection. Counsel for appellant insists that the ruling was error because the word "integrity” means, among other significations, “moral soundness," which, he says, is a trait involved in the charge of seduction. Schmidt had already testified, without objection, as had several other witnesses, that defendant's reputation for chastity and morality in the community in which he lived was good. Assuming the ruling to be error, which it is not necessary for us to decide here, we do not think it was prejudicial in view of the other evidence admitted directly bearing upon his reputation for chastity and morality.

The hypothetical question propounded to Dr. Fraser, called as an expert witness for the plaintiff, was within the evidence. The objection was that the question assumed facts not in proof. The defendant was called to the witness-stand by plaintiff in rebuttal and asked a number of questions, the answers to which involved information as to whether or not in his lifetime he had ever suffered from any disease of the genital organs or had in any manner abused himself so as to affect or impair the vitality of those organs. His replies to these questions were to the effect that he had never abused himself, had never had venereal trouble or blood disease of any character, except rheumatism, and had never found it necessary to use a catheter or other instrument to open the canal of his organ of generation in order to pass water. The hypothetical question embraced all these facts and was whether or not, “under such circumstances, and assuming them to be true, that man could perform the act of copulation?” The answer was: “He could, without doubt." There was no error in the ruling on this question.

It is charged that the attorney for plaintiff in the course of his argument to the jury was guilty of misconduct which prejudiced the rights of defendant. Counsel used this language: “We challenge counsel to deny that we offered to dismiss this suit, if the defendant would marry the plaintiff, and legitimize this child." There was no evidence offered or received which warranted the use of the quoted language. It seems to have been used in reply to certain comments niade by counsel for defendant in his argument upon matters foreign to the record. It would save much trouble and expense and serious disappointment to litigants if lawyers could practice and acquire an equanimity of temperament which would prevent the exhibition of the inordinate zeal during the trial of a case which often leads to prejudicial error. The language imputed to counsel, and which, in fact, he admits to have used, was wholly without warrant from the record, but we think the court's action in striking it out and immediately instructing the jury to disregard it, cured the irregularity. It is claimed, however, that the irregularity complained of is not properly before the court, because, under sections 657, 658 of the Code of Civil Procedure, when an application for a new trial is made for "irregularity in the proceedings of the court, jury, or adverse party, ” it “must be made upon affidavits.” It is not necessary, in the view we have taken of the point, to decide this question.

Objections to certain instructions given by the court involve the points we have discussed and disposed of against the contention of appellant raised on the court's order overruling the demurrer. It is insisted, however, that the court erred in refusing to give instructions 16 and 20, requested by defendant. We have carefully examined the instructions given by the court and think the law of the case was fully covered by them. Instructions 24, 25 and 28, which were read to the jury, embrace all the matters contained in the rejected instructions. This was sufficient. We know of no rule of law requiring the court to repeat its instructions upon any point in a case, where the law applicable thereto has already been given in clear and perspicuous language.

We have given the record careful consideration, and have not been able to find any errors prejudicial to the rights of the defendant.

The judgment and order are affirmed.

Burnett, J., and Chipman, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on March 7, 1907, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 5, 1907.

INDEX.

ACCOMPLICE. See Criminal Law, 1, 2, 45.

ACCOUNT. See Mutual Account

ACCOUNTING. See Estates of Deceased Persons, 2-7; Master and

Servant, 2-4; Specific Performance, 1; Trust, 1.

ADVERSE POSSESSION. See Divorce, 24; Quieting Title, 10-16;

Water and Water Rights, 6, 13, 15, 19-21, 23.

an

AGENCY.
1. SUPPORT OF FINDINGS-CONFLICTING EVIDENCE-APPEAL.-In