exists of putting some limit on the extent to which an inquiry may be carried, without which proceedings might be spun out to an interminable length. See, however, Reg. v. Whelan, cited infra.

Evidence that a witness is not impartial. What has been just said as to not giving evidence of particular facts merely for the purpose of impeaching the credit of a witness, does not apply where the fact sought to be proved goes to show that the witness does not stand indifferent between the contending parties. Best Ev. 723. Thus in R. v. Yewin, supra, the witness was asked whether he had not said that he would be avenged upon his master, and would soon fix him in gaol. This he denied, but Lawrence, J., allowed him to be contradicted. So also it may be proved that a witness has been bribed to give his evidence, R. v. Langhorn, 7 How. St. Tr. 446, or that he has endeavored to suborn others, R. v. Lord Stafford, Id. 400, both of which cases were recognized in Att.-Gen. v. Hitchcock, 1 Ex. R. 91. And the same law was assumed by the judges, in answering a question put to him by the House of Lords, in the Queen's case, 2 Brod. & B. 311, 6 E. C. L. But the question must be one which goes directly to prove, *and not merely to suggest, improper conduct or partiality of

the witness. Thus, in the case the Att.-Gen. v. Hitchcock, [*105 supra, a revenue case, the question put to the witness was whether he had not said that the officers of the Crown had offered him a bribe to give his testimony, which he denied; and on this the Court of Exchequer held that he could not be contradicted. Upon a trial for murder in Ireland a witness identified the prisoner and was cross-examined as to whether he had not stated that the prisoner was not the man. This he denied. The prisoner called A. and B. to prove the witness had so said. The prosecution were allowed to call C. and D. to contradict A. and B., and support the witness. In the same case for the defence E. stated that the witness had told him that he did not recognize the prisoner, and on cross-examination he said he had reported this fact to his superior officers, but the prosecution were not allowed to call the superior officers to say this was untrue. May, C. J., seemed to regard the question of admissibility as one for the discretion of the judge; but the proper test is whether the evidence is material or irrelevant. Reg. v. Whelan, 14 Cox, C. C. Ir. 595.

An important rule was laid down in the Queen's case, supra, with reference to this species of evidence. It was there decided, that if it be intended to offer evidence of statements made by a witness touching the matter in question, which show that he is not a credible witness, either from improper conduct or partiality, that the witness must be first asked in cross-examination, whether or no he made the statements imputed to him, in order that he may, if he chose, admit and attempt

1 A witness cannot be impeached by showing that a third person, prejudiced against the accused, threatened to procure the witness to testify against him. Benton v. State, 30 Ark. 328. The bias of a witness may be shown but not the causes of such bias. Chelton v. State, 45 Md. 564; People v. Penhollow, 42 Hun, (N. Y.) 103. On the questions proper to show ill feeling of witness to accused. Hinds v. State, 55 Ala. 145; Carlson v. State, 5 Tex. App. 194.

to explain them.1 The principles and reasoning of this decision seem to apply to acts as well as statements.

Evidence to contradict the party's own witness. It has already been said, that a party who calls a witness cannot bring general evidence to discredit him; but if a witness state material facts which make against the party who calls him, other witnesses may be called to prove the facts were otherwise. A great doubt used to exist whether it is competent to a party to prove that a witness called by him, who has given evidence against him, has made at other times a statement contrary to that made by him at the trial; but now the 28 Vict. c. 18, s. 3, provides that a party producing a witness may, "in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony;" but before such last-mentioned 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. So in a case of rape where the girl in a cross-examination gave particulars of the assault inconsistent with the instructions of counsel for the prosecution; Day, J. (after consulting Cave, J.), came to the conclusion that the witness was adverse, and allowed her to be cross-examined in reexamination, and witnesses to be called to contradict her. Reg. v. Little, 14 Cox, C. C. 319. See post, Examination of Witnesses.2

Evidence of former statements to confirm a party's own witness. The only occasion on which, if at all, a party can confirm his own witness by proof of former statements made by him according with that made at the trial, is when the witness's credibility has been attacked, *either on cross-examination or by independent evidence. Whether it is admissible in this case has been much con

*106]

1 Booker v. State, 4 Tex. App. 564. A witness cannot be impeached by anything that was said out of his presence. Clarke v. State, 78 Ala. 474. He may be impeached by proof of statements made by him inconsistent with what he testifies in court. People v. French, 8 Crim. Law, Mag. 45.

2 Generally where the accused elicits adverse testimony he must take the consequences. He cannot have it excluded, even where it has already been so when introduced by the prosecution. Speights v. State, 1 Tex. App. 551.

3 Ware v. Ware, 8 Greenl. 42; Atwood v. Felton, 7 Conn. 66; State v. Alexander, 1 Rep. Const. Ct. 171. Cross-examination as to irrelevant matter will not bring it into issue. Griffith v. Eshleman, 4 W. 51; Page v. Hemans, 14 Me. 478; Goodhand v. Benton, 6 G. & J. 481; Williams v. State, Wright (O.), 42; Smith v. Drew, 3 Whart. 154; Norton v. Valentine, 15 Me. 36; see People v. Byrd, 1 Wheel. C. C. 242. [Coleman v. People, 55 N. Y. 81. But where on a trial for murder, the cross-examination of a State witness elicited the fact that the defendant once committed forgery, it is no ground for reversal that the State was afterwards allowed to prove that fact by another witness. State v. Kring, 74 Mo. 612.] A witness may be cross-examined as to any collateral fact which has any tendency to test either his accuracy or veracity, but the party must be bound by the answers of the witness, and cannot adduce proof in contradiction of such answers. And if, in the course of the trial, testimony is

troverted. In some cases such evidence has been admitted. Lutterell v. Reynell, 1 Mod. 282; R. v. Friend, 13 How. St. Tr. 32. See also R. v. given without objection tending to contradict such answers, it is not even then competent for the party offering the first witness to give independent proof tending to corroborate the witness as to these collateral matters. Stevens v. Beach, 2 Vt. 585. [State v. Patterson, 74 N. C. 157; People v. Morrigan, 29 Mich. 5; State v. Benner, 64 Me. 267. Matters unconnected with the cause or the parties are collateral and subject to this rule. Hester v. Com., 85 Pa. St. 139. So also questions as to religious belief. Clinton v. State, 33 Ohio St. 27.] In respect to collateral matters drawn out by cross-examination, the answers of the witness are in general to be regarded as conclusive. The exception to this rule is, when the cross-examination is as to matters which, though collateral, tend to show the temper, disposition, or conduct of the witness towards the cause or the parties. The answer of the witness as to these matters may be contradicted. State v. Patterson, 2 Ired. 346. [Beardsley v. Wildman, 41 Conn. 515; State v. Roberts, 81 N. C. 605; Scott v. State, 64 Ind. 400.] A witness cannot be cross-examined on immaterial matters in order to contradict him and impeach his credibility. Rosenbaum v. State, 33 Ala. 354; Blakey v. Blakey, Id. 611; Seavy v. Dearborn, 19 N. H. 351; Cornelius v. Commonwealth, 15 B. Mon. 539; State v. Thibeau, 30 Vt. 100; Hersom v. Henderson, 3 Fost. 498; Morgan v. Frecs, 15 Barb. 352; Mitchum v. State, 11 Ga. 615; Orten v. Jewitt, 23 Ala. 662; Powers v. Leach, 26 Vt. 270; Winter v. Meeker, 25 Conn. 456; Cokely v. State, 4 Ia. 477; Scale v. Chambliss, 35 Ala. 19; People v. McGinnis, 1 Park. C. R. 387. [Crittenden v. Com., 82 Ky. 164; People v. Budensieck, 4 N. Y. Crim. R. 230. But where a witness has testified in chief that he had no ill feeling against the accused, it is error to exclude on cross-examination his declarations showing a different state of feeling. McFarlin v. State, 41 Tex. 23. The testimony of married women in a criminal case cannot be impeached by proof of a conspiracy on the part of their husbands to extort money from defendant. People v. Parton, 49 Cal. 632.] It is not collateral but relevant to the main issue to inquire into the motives of a witness, and a party who examines him in regard to them is not bound by his answers, but may contradict him. People v. Austin, 1 Park. C. C. 154; Newcomb v. State, 37 Miss. 383; Bersch v. State, 13 Ind. 434; Collins ». Stephenson, 5 Gray, 438. A witness may be cross-examined as to prior conversations with third persons which tend to show ill will on his part towards the party against whom he is called, both for the purpose of affecting his credibility and also of laying the foundation for the contradiction of his testimony. Powell v. Martin, 10 Ia. 568. A witness must be inquired of as to time, place, and person, before he can be impeached by calling witnesses to contradict him. Wright v. Hicks, 15 Ga. 160. [People v. Devine, 14 Cal. 452. So a paper must be read to him before it can be used to contradict him. State v. Matthews, 88 Mo. 121.] Before a witness can be contradicted by his own statements made out of court his attention must be specially called to them; it is not enough to ask a general question without naming the person. State v. Marler, 2 Ala. 43; Brown v. Kimball, 25 Wend. 259; Joy v. State, 14 Ind. 139; Cook ". Hunt, 24 Ill. 535; Baker v. Joseph, 16 Cal. 173; Mendenhall v. Banks, 16 Ind. 284; Judy v. Johnson, Id. 371; Morrison v. Myers, 11 Ia. 538; Evertson v. Carpenter, 17 Wend. 419; Stewart v. Chadwick, 8 Clarke, 463; Vatton v. National, 6 Smith, 32; State v. Davis, 29 Mo. 391; Ketchingman v. State, 6 Wis. 426; Sutton v. Reagen et al., 5 Blackf. 217; Unis v. Charlton's Adm., 12 Gratt. 484; Atkins v. State, 16 Ark. 568; Vatton v. National, 22 Barb. 9; Budlong v. Van Nostrand, 24 Barb. 25; Hooper v. Moore, Jones' Law, 428; Stacey v. Graham, 4 Kern. 492; Bryan v. Walter, 14 Ga. 485; Smith v. People, 2 Mich. 415; Conrad v. Griffey, 16 How. 38; People v. Austin, 1 Park. C. R. 154; Barb v. Steam Navigation Co., 11 G. & J. 28. [State v. McLaughlin, 44 Ia. 82; Newton v. State, 21 Fla. 53.] Contra, Gould v. Norfolk Lead Co., 9 Cush. 338; Commonwealth v. Hawkins, 3 Gray, 463; Howland v. Conway, 1 Abb. Adm. 281; Cook v. Brown, 3 N. H. 460; Hedge v. Clapp. 22 Conn. 262. [But it is not necessary to put to the witness the precise question which it is intended to put to the impeaching witness. Hotchkiss, Germania Ins. Co. 5 Hun, (N. Y.) 90.] A witness may, in the discretion of the judge, be recalled and examined in a leading manner to contradict a witness introduced to attack his credit. Thomasson v. State, 22 Ga. 499. [State v. Jones, 64 Mo. 391.] When there is a dispute as to localities, a diagram which is drawn in accordance with the testimony of the witness, may be given to the jury without having been first exhibited to the witness whose testimony it contradicts. Bishop v. State, 9 Ga. 121. [So an affidavit which the witness says he has read and

Harrison, 12 How. St. Tr. 861. So it is laid down by Gilbert, C. B., that though hearsay be not allowed as direct evidence, yet it may be in remembers, may be read to show that it contains statements contrary to those made by defendant in trial. Honstine v. O'Donnel, 5 Hun, (N. Y.) 472.] A witness may be impeached by showing that he has made contradictory statements, although his denial of such statements is not positive, but merely that he does not remember them. Nute v. Nute, 41 N. H. 60; Ray v. Bell, 24 Ill. 444. [Payne v. State, 60 Ala. 80.] Contra, Mendenhall v. Bank, 16 Ind. 284. [But such statements are not admissible for the purpose of contradicting the fact to which he testifies. For such a purpose they are hearsay. Loving v. Commonwealth, 80 Ky. 507; State v. Benner, 64 Me. 267. The statement must be on matters relevant to the issue. Henderson v. State, 1 Tex. App. 432.] The examination of a witness before the committing magistrate, if his presence can be obtained, is not admissible, but when he has been examined it may be used to contradict him. State v. McLeod, 1 Hawks, 344; Oliver v. State, 5 How. 14. On a trial for murder, the deposition of a witness given before the inquest, taken down at the time by the coroner, and read to and signed by the witness, may be introduced to contradict him. Wormeley v. Commonwealth, 10 Gratt. 658. [But not the evidence before the grand jury or upon preliminary examination. State v. Hayden, 45 Ia. 11. Contra, Little v. Commonwealth, 25 Grattan, 94; State v. Tickel, 13 Nev. 502.] Where the credit of a witness is attacked by proving former statements contradictory to his statements in court, it is competent in his support to show statements made at other times and places consistent therewith. Dorsett v. Miller, 3 Sneed, 72. [State v. Laxton, 78 N. C. 564; State v. Petty, 21 Kan. 54.] Contra, Smith v. Stickney, 17 Barb. 489; People v. Finnegan, 1 Park. C. R. 147; Lamb v. Stewart, 2 O. 230; Stahle v. Spohn, 8 S. & R. 317. [Éven when made subsequent to the impeaching statement. Brookbank v. State, 55 Ind. 169.] A witness may object to answer as to what he testified on a former trial. Mitchell. Hinman, 8 Wend. 667. That the contradictory statements of a witness cannot be met by proof of others agreeing with his testimony, see Ware v. Ware, 8 Greenl. 82; Jackson v. Etz, 5 Cow. 314; Munson v. Hastings, 12 Vt. 346. The contrary doctrine is held in Johnson v. Patterson, 2 Hawks, 183; Cook v. Curtiss, 6 H. & J. 93; Henderson v. Jones, 10 S. & R. 322; Coffin v. Anderson, 4 Blackf. 395. A witness whose credit has been impeached by evidence of contradictory statements cannot be sustained by proof of good character. Russell v. Coffin, 8 Pick. 143; Rogers v. Moore, 10 Conn. 13. [Webb v. State, 29 Ohio St. 351.] Contra, Richmond v. Richmond, 10 Yerg. 343. [As to the period over which the testimony as to good character may range, see Stratton v. State, 45 Ind. 468. Where evidence of good character has been admitted to sustain an impeached witness the State may also show the good character of the impeaching witness. Davis v. State, 38 Md. 15.] Proof of declarations made by a witness out of court, in corroboration of testimony given by him on the trial of a cause, is as a general and almost universal rule, inadmissible. [Haynes v. Commonwealth, 28 Grattan (Va.), 942.] It seems, however, that to this rule there are exceptions, and that under special circumstances such proof will be received; as when the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. So in contradiction of evidence tending to show that the account of the transaction, given by the witness, is a fabrication of late date, it may be shown that the same account was given by him before its ultimate effect and operation arising from a charge of circumstances could have been foreseen. Roob v. Hackley, 23 Wend. 50. [People v. Doyle, 48 Cal. 85; Hotchkiss v. Germania, 5 Hun, (N. Y.) 90. So also where the fact that he did so testify is a part of the res gesta. People v. Morrigan, 29 Mich. 5. Or for the purpose of indemnification. Commonwealth v. Piper, 120 Mass. 185.] When no design to misrepresent is charged against a witness in consequence of his relation to the party or to the cause, evidence of similar statements made by him on former occasions is not admissible to support the truth of what he may testify. State v. Thomas, 3 Strobhart, 269. When the credit of a witness has been impeached by proof that in a certain conversation he had made statements inconsistent with the truth of his testimony, he may on re-examination be asked and may state what that conversation was to which the impeaching witness referred State v. Winkley, 14 N. H. 480.

Witness may be contradicted by showing that he had stated otherwise, his attention being first called to it. Patton v. People, 18 Mich. 314; State v. Hoyt, 13 Minn. 132; State v. Collins, 32 Ia. 36. [But he cannot be asked whether he has not previously

corroboration of a witness's testimony, to show that he affirmed the same thing before on other occasions, and that the witness is still consistent with himself; for such evidence is only in support of the witness that gives in his testimony upon oath. Gilb. Ev. 135, 6th ed. See also Hawk. P. C., b. 2, c. 36, s. 48. These writers were followed by Mr. Justice Buller in his treatise on the law of nisi prius at p. 294, citing the case of Lutterell v. Reynell, 1 Mod. 283; but in R. v. Parker, 3 Dougl. 242, 26 E. C. L., the same learned judge said that the case of Lutterell v. Reynell, and the passage in Hawkins was not now law. The case of R. v. Parker was a prosecution for perjury tried before Eyre, B. For the prosecution the depositions of a deceased person were given in evidence, and upon the cross-examination of one of the prosecutor's witnesses, it was proposed to inquire into certain declarations of the deceased person, not on oath, for the purpose of corroborating some facts in the deposition material to the prisoner. Eyre, B., rejected the evidence of these declarations, and the Court of King's Bench, on a motion for a new trial, held the rejection proper. This case was referred to by Lord Redesdale in the Berkeley Peerage case, where his lordship gave his opinion in conformity thereto. Lord Eldon also concurred in that opinion. In conformity with these latter decisions the rule is laid down by Mr. Phillipps, with this exception, that where the counsel on the other side impute a design to misrepresent from some motive of interest or friendship, it may, in order to repel such an imputation, be proper to show that the witness made a similar statement at a time when the supposed motive did not exist. 2 Phill. Ev. 523, 10th ed.

said that in his opinion defendant was not guilty after testifying to criminating facts. Commonwealth v. Moony, 110 Mass. 99; State v. Maxwell, 42 Ia. 208.]

In an indictment for libel, where the party libelled is offered as a witness for the prosecution, it is competent to discredit his testimony by proof of contrary statements made out of court, his attention having been first called thereto. State v. Bertman,

15 La. An. 116.

Evidence to confirm a witness by proving that he has given the same account out of court is not admissible, although it has been proved in order to contradict him that he has given a different account. United States v. Holmes, 1 Cliff. C. C. 98; State v. Vincent, 24 Ia. 570. [State v. Parish, 79 N. C. 610.]

Witness can only be contradicted in material point. Geary v. People, 22 Mich. 220; Powers v. State, 44 Ga. 209; Gibbs v. Linaberry, 22 Mich. 479. [Davis v. Keyes, 112 Mass. 436.]

The maxim falsum in uno, falsum in omnibus, does not prevail in courts of law, the fact that a witness has sworn falsely as to one matter going to the credibility, and not to the competency of his testimony as to other matters. State v. Smith, 8 Jones' (L.), 132; Stoffie v. State, 15 O. St. 47; Meixsell v. Williamson, 35 Ill. 529; People v. Strong, 30 Cal. 151. S. Pierce v. State, 53 Ga, 365; State v. Elkins, 63 Mo. 159.

There is no rule of law that the entire testimony of such a witness must be disregarded. People v. Reavy, 4 N. Y. Crim. Rep. 1. But the jury have a right to do so if they please. People v. Buddensieck, 4 Id. 230; People v. Stott, 4 Id. 306. On the credibility of the witnesses, generally, and that it is for the jury, see Jones v. State, 48 Ga. 163; Wallace v. State, 28 Ärk. 531; Kinner v. State, 45 Ind. 175; Pridgen v. Walker, 40 Tex. 135; Bowers v. People, 74 Ill. 418; Jones v. State, 77 N. C. 520; McLain v. Commonwealth, 99 Pa. St. 86. Testimony which is unreasonable may be believed by the jury. Its weight is for them. Ross v. State, 74 Ala. 532.