CHAPTER XIX. CROSS-EXAMINATION. § 245. Extent of the Right to cross-examine. § 246. How far limited by the Direct Examination. How far limited to Relevancy to the Issue. § 248. What Questions are Proper. § 247. § 249. Leading Questions. § 250. Sufficiency and Effect of Witness' Answers. § 251. Cross-examination of Defendants in Criminal Cases. § 252. Cross-examination of Accomplices and Persons jointly indicted. § 245. Extent of the Right to cross-examine. (1) In gen eral. After the party calling a witness has concluded the examination-in-chief, the opposite party has a right to crossexamine the witness, as a matter of course, and without first obtaining the permission of the court; and a wider latitude of questioning is allowed than upon the direct examination, the object being to correct errors, concealments, and misstatements therein.1 The cross-examiner is not ordinarily required to disclose what he expects to prove.2 Where one party is called as a witness by the opposite party, the witness' own counsel may cross-examine him; and if a party who supports his own motion by his affidavit or testimony refuses to be cross-examined, the court may strike out his testimony.* But a party is not bound to offer an incompetent witness, in order that his adversary may waive the objection and crossexamine him; 5 or to detain a witness for the convenience of his adversary who fails to claim or reserve the right to crossexamine at the proper time.6 Sometimes cross-examination furnishes the only remedy within a party's reach by which to correct the effect of an 1 See Anderson v. Russell, 34 Mich. 109; Anderson v. Walter, 34 Mich. 113; Jacobson v. Metzger, 35 Mich. 103. 2 Martin v. Elden, 32 Ohio St. 282. 4 Meyer v. Lent, 16 Barb. (N. Y.) 538; Howard v. Chamberlain, 64 Ga. 684. 5 Crowell v. Kirk, 3 Dev. (N. C.) L. 355. 6 Sheffield v. Rochester &c. R. R. * Teel v. Byrne, 4 Zab. (N. J.) Co., 21 Barb. (N. Y.) 339. error as when a witness testifies to acts which did not happen in his presence: in such a case his testimony cannot be stricken out: the only remedy is to show, by cross-examination, that the witness had not sufficient opportunity of knowing what he testified.1 Where several attorneys are employed on the same side, there is no rule requiring any particular one of them to conduct the cross-examination, or that requires the same attorney who took part in the examination-in-chief to conduct the cross-examination.2 (2) Effect of death of witness after direct, but before crossexamination. The death of a witness after his examinationin-chief, but before an opportunity had been afforded to cross-examine him, has been held to render his testimony-inchief inadmissible.3 While this is the rule in actions of a legal nature, in equity, the inadmissibility of the direct testimony of such a witness is a question confided to the discretion of the court, in view of all the circumstances of the case.4 (3) Discretionary powers of the court. It is a rule of very general application, that the extent to which a witness may be cross-examined is ordinarily a matter of discretion with the presiding judge, to which no exception lies.5 There is no uniform rule governing the matter, greater liberties being allowed when the witness shows partisanship than when he evinces impartiality; and it requires a strong case to justify a reversal for the allowance of too much latitude on the part of the cross-examiner. This discretion particularly ext ends to the range of a cross-examination in disparagement of the character of a witness; and this, without putting the witness to his claim of privilege.s The court may postpone the 1 Rushmore v. Hall, 12 Abb. (N. lace v. Taunton Street R. R. Co-, 119 Y.) Pr. 420. 2 Olive v. State, 11 Neb. 1. 8 Kissam v. Forrest, 25 Wend. (N. Y.) 651; Sperry v. Moore, 42 Mich. 353. 4 Gass v. Stinson, 3 Sumn. (U. S.) 104-108; 1 Greenl. Ev. (14 Ed.) $554, and cases there cited. 5 Commonwealth v. Lyden, 113 Mass. 452; Knight . Cunnington, Mass. 91; Brumagim v. Bradshaw, 39 6 Ingram v. State, 67 Ala. 67- 8 Gt. Western &c. Co. v. Loomis, 32 N. Y. 127. Thus it is within the discretion of the court to permit Coun 13 N. Y. Supreme Court, 100; Wal- sel, on cross-examination, to ask a cross-examination to a subsequent stage of the cause,1 or permit a party after resting his case to cross-examine his adversary's witnesses, or call others.2 Where a witness has betrayed bias, partiality, or corruption, this discretionary power will be exercised in extending the latitude of the questioner, and a most searching cross-examination will be allowed.3 $246. How far limited by the Direct Examination. - A preliminary question frequently arises as to whether the witness has so far given testimony-in-chief as to entitle the opposite party to cross-examine him. If he is merely called to produce a paper which is to be proved by another witness, he need not be sworn, and if not sworn, he cannot be crossexamined. If, however, the witness is sworn and is competent, the rule in England is, that the adverse party has the right to cross-examine him, even though the party calling him does not see fit to examine him in chief; 5 unless he is sworn by mistake, and the mistake is discovered before any questions are put to him, or unless his direct examination. is stopped by the court after an immaterial question has been put to him.7 So, if a witness called merely to prove the execution of a written instrument is sworn and examined to that extent only, however formal and brief his testimony may be,—this, in some jurisdictions, makes him a witness for all purposes, and he may be cross-examined on the whole case, while witness whether he has not sworn falsely in a particular suit, or on some occasion, but not whether third persons have accused him of swearing falsely. Hannah v. McKellip, 49 Barb. (N. Y.) 342. But see Elliott v. Boyles, 31 Pa. St. 65. 1 Campan v. Dewey, 9 Mich. 381. 2 Young v. Bennett, 5 Ill. 43. People v. Long, 50 Mich. 249; Re Carmichael, 36 Ala. 514; Floyd v. Wallace, 31 Ga. 688. See also State . Adams, 14 La. Ann. 620. 4 Davis . Dale, Moo. & M. 515; Perry v. Gibson, 1 Ad. & E. 48; Summers v. Moseley, 2 Car. & M. 477; Rush v. Smith, 1 Cromp. M. & R. 94; Read v. James, 1 Stark. 132; R. v. Murlis, Moo. & M. 515; Simpson v. Smith, Nott. Summ. Ass. 1822, MS. 8 5 Rex . Brooke, 2 Stark. 472; Phillips . Eamer, 1 Esp. 357; Dickinson v. Shee, 4 Esp. 67; Reg. v. Murphy, 1 Armst. M. & O. 204; Morgan. Bridges, 2 Stark. 314. Contra, see Austin v. State, 14 Ark. 555. 6 Clifford v. Hunter, 3 Car. & P. 16; Rush v. Smith, 1 Cromp. M. & R. 91; Wood v. Mackinson, 2 Man. & P. 273. 7 Creevy v. Carr, 7 Car. & P. 64. 8 Morgan v. Bridges, 2 Stark. 314; Dawson v. Callaway, 18 Ga. 573; Lunday v. Thomas, 26 Ga. 537; Aiken v. Cato, 23 Ga. 154; Blackington v. Johnson, 126 Mass. 21; Bulen v. Granger (Mich.) 25 N. W. Rep. 188; Lamprey v. Munch, 21 Minn. 379; Page v. Kunkey, 6 Mo. 433; Brown r. Burrus, 8 Mo. 26; Butterworth v. in other jurisdictions the contrary doctrine obtains.1 In this country, the weight of authority undoubtedly is, that the right to cross-examine a witness is limited to matters stated by him in his direct examination; 2 or as the rule has been well expressed, a witness cannot upon cross-examination be questioned with regard to a matter which does not tend to impeach, rebut, explain, modify, or in any manner qualify anything he has testified to on his examination-in-chief.3 But the cross-examination ought to be allowed a free range if kept within the subject-matter of the direct testimony of the witness, especially where the witness is a party, or unwilling. Thus, it has been frequently held that where a witness has testified, on the direct, to a part of a conversation, the cross-examiner may require him to state the whole of it; so, where a witness has testified, on the direct, to a part of another witness' testimony in a former trial, the cross 6 Pecare, 8 Bosw. (N. Y.) 671; Linsley 60; Wilhelmi v. Leonard, 13 Iowa, r. Lovely, 26 Vt. 123. See also Moody . Rowell, 17 Pick. (Mass.) 490, 498; Beal v. Nichols, 2 Gray (Mass.) 262; Jackson v. Varick, 7 Cow. (N. Y.) 238; Fulton Bank v. Stafford, 2 Wend. (N. Y.) 483; Dutton v. Woodman, 9 Cush. (Mass.) 255; Wentworth v. Crawford, 11 Tex. 127. 1 Harrison v. Rowan, 3 Wash. (U. S.) 580; McFadden v. Mitchell, 61 Cal. 148; Ellmaker v. Buckley, 16 S. & R. (Pa.) 77; Farmer's Bank v. Strohecker, 9 Watts (Pa.) 237. S. P., Gale r. People, 26 Mich. 157; Wilson v. Wagar, Id. 452, Haynes v. Ledyard, 33 Id. 319; Buckley v. Buckley, 12 Nev. 423; Fulton v. Central Bank, 92 Pa. St. 112; Monongahela Water Co. v. Stewartson, 96 Id. 436. 2 Houghton v. Jones, 1 Wall. (U. S.) 702; Bell v. Chambers, 38 Ala. 660; Bell v. Prewitt, 62 Ill. 362; Lloyd v. Thompson, 5 Ill. App. 90; Aurora v. Cobb, 21 Ind. 492; Landsberger . Gorham, 5 Cal. 450; Cokely v. State, 4 Iowa, 477; People v. Horton, 4 Mich. 67; Aitken v. Mendenhall, 25 Cal. 212; Congar v. Galena &c. R. R. Co., 17 Wis. 477; People v. Miller, 33 Cal. 99; Chicago &c. R. R. Co. v. Northern &c. R. R. Co., 36 Ill. 330; Leavitt v. Stansell, 44 Mich. 424; Donnelly r. State, 2 Dutch. (N. J.) 463, 601; Hartness v. Boyd, 5 Wend. (N. Y.) 563; Greaton r. Smith, 1 Daly (N. Y.) 380; Campan r. Dewey, 9 Mich. 381; Beaulieu r. Parsons, 2 Minn. 37; Castor v. Bavington, 2 Watts & S. (Pa.) 505; Rucker v. Eddings, 7 Mo. 115; Floyd v. Bovard, 6 Watts & S. (Pa.) 75; Helser v. McGrath, 52 Pa. St. 531. 3 Sumner v. Blair, 9 Kan. 521. S. P., Da Lee v. Blackburn, 11 Kan. 190; Phillips v. Elwell, 14 Ohio St. 240; Haynes v. Ledyard, 33 Mich. 319. 4 Buckley v. Buckley, 12 Nev. 423. Compare O'Hagan v. Dillon, 42 N. Y. Superior, 456; Baird v. Daly, 68 N. Y. 547. See also Ferguson v. Rutherford, 7 Nev. 385. 5 Hanchett v. Kimbark (Ill.) 7 N. East. Rep. 491; Cramer v. Cullinane, 2 MacArth. (D. C.) 197; Pryor v. Harris, 30 Ala. 118. People v. Strong, 30 Cal. 151; People v. Smallman, 55 Cal. 185; Phares v. Barber, 61 Ill. 271; Metzer v. State, 30 Ind. 596; Shackelford v. State, 43 Tex. 138. Compare Perlmutter v. Highland Street Railway Co., 121 Mass. 497. examiner may call out the whole of such testimony;1 or where a question put on the direct was not fully answered, a full answer may be elicited on the cross.2 The better opinion seems to be that, if it be desired to examine a witness upon matters other than those drawn out upon his direct examination, the party must make the witness. his own, and call him as such.3 But here, as elsewhere, the want of uniformity in legal rules is plainly apparent; for several courts of last resort and high respectability, maintain a doctrine directly the converse of that we have just been considering; they hold that on cross-examination the witness may be inquired of as to all subjects pertinent to the case, whether touched upon in the examination-in-chief, or not; and that to restrict the crossexaminer to the matters brought out on the direct examination is reversible error, especially where the object of the cross-examination is to test the credibility of the witness.6 The § 247. How far limited to Relevancy to the Issue. subject of the admissibility of questions as to impertinent, immaterial, and collateral matters on the cross-examination of a witness, has been already pretty fully discussed when we were considering the rules relative to impeachment, and little more remains to be said here upon the topic, as more 1 Aulger v. Smith, 34 Ill. 534; Harness v. State, 57 Ind. 1. 2 Mason v. Tallman, 34 Me. 472. 3 Boggs v. Thompson, 13 Neb. 403; Philadelphia R. R. Co. v. Stimpson, 14 Pet. (U. S.) 448; State v. Smith, 49 Conn. 376; Brown v. State, 28 Ga. 199; Stevens v. Brown, 12 Ill. App. 619; Patton v. Hamilton, 12 Ind. 256; Dearmond v. Dearmond, Id. 455. 4 State v. Sayers, 58 Mo. 585; Fralick v. Presley, 29 Ala. 457; White v. Dinkins, 19 Ga. 285; Barker v. Blount, 63 Ga. 423; Mask v. State, 32 Miss. 405; Fulton Bank v. Stafford, 2 Wend. (N. Y.) 483; Livingston v. Keech, 34 N. Y. Superior Court, 547; Kibler v. McIlwain, 16 So. Car. 550. 5 State v. Thomas, 32 La. Ann. 349. 6 State v. Willingham, 33 La. Ann. 537; State v. Gregory, Id. 737; King w. Atkins, Id. 1057. For further illustrations of more or less radical departures from the rule limiting the cross-examination to matters gone into on the direct, see Thornburgh v. Hand, 7 Cal. 554; Fredd v. Eves, 4 Harr. (Del.) 885; Quimby v. Morrill, 47 Me. 470; Merrill v. Berkshire, 11 Pick. (Mass.) 269; Webster v. Lee, 5 Mass. 334; Thayer v. Barney, 12 Minn. 502; Squire v. Wright, 1 Mo. App. 172; Jackson v. Varick, 7 Cow. (N. Y.) 238; Markley v. Swartzlander, 8 Watts & S. (Pa.) 172; Rhodes v. Commonwealth, 48 Pa. St. 396; Henderson v. Hydraulic Works, 9 Phil. (Pa.) 100; Jackson v. Inabinit, Riley (S. C.) Ch. 9; State v. Cardoza, 11 S. C. 195. 7 Supra, Chap. XIII., more particularly § 209. |