By the Court. Judgment of the Court below is reversed, and the cause remanded for a new trial.

u 4, 552 981

209. OXIER v. UNITED STATES. (1896. Indian Territory. 1 Ind. T. 85, 38 S. W. 331). LEWIS, J. There is a clear distinction recognized by the authorities cited above, between impeaching a witness by proof of facts which discredit him, made independently of his examination, and by proof of the same facts elicited in his cross-examination. Proof of particular facts tending to impair his credibility, made independently of his own examination, is excluded for the reason that its admission would engender a multiplicity of collateral issues, and would frequently surprise a witness with matter which he could not be prepared to disprove. But these reasons do not apply to his cross-examination as to the same facts, because the witness, better than any one else, can explain the impeaching matter, and protect himself to the extent that explanation will protect him; the cross-examining party being bound by his replies.

396, Report of the Charge, II, 720, 722). [Lord B., who had testified to the tattoo-marks on Roger Tichborne, was cross-examined.] Dr. Kenealy, counsel for defendant: Did you play a practical joke [on Captain H.]? .

210. R. v. CASTRO, alias TICHBORNE. (1873. 32d day, Kenealy's ed., I W. f. 352

L. C. J. COCKBURN. It may be a practical joke of such a nature that the jury would disbelieve the evidence on his oath, on its being made known to them. We must leave that to the discretion of Dr. Kenealy. . .

Dr. Kenealy. — It was not a practical joke. Did you take away his wife?
Lord B.- I cannot answer that question.

Dr. Kenealy. - Did you seduce his wife and make her elope from her hus-
band? I am sorry to have to ask my lord to tell you you must answer it.
L. C. J. COCKBURN. - I certainly shall not.

Dr. Kenealy. - Indeed you must, my lord! It goes to the witness' credit. I must have it answered, my lord.

L. C. J. COCKBURN. — I am afraid, if the question is pressed, you [the witness] must answer it. It is one of the consequences of being brought into a court of justice as a witness that whatever he has done may be brought up against him.

[Upon charging the jury, L. C. J. COCKBURN adverted to this examination as follows]: Lord B. has committed a wofully sad sin; . . . another man's wife left her husband and joined him, and they have lived together. . . . [Counsel] asks you deliberately to come to the conclusion that because of this offense Lord B. is not to be believed upon his oath, nay, more, that you must assume him to be perjured. Is that, do you think, a view that you can properly adopt? Is it because a man has committed a breach of morality, however flagrant, that those to whom his testimony may be important in a court of justice are to be deprived of it? . . . There are crimes and offenses which savor so much of falsehood and fraud that they do go legitimately to the credit of witnesses. There are offenses of a different character, and grievous offenses if you will, but which do not touch that particular part of a man's moral organization — if I may use the phrase — which involves truth; and there is an essential distinction between this species of fault and those things which go to the very roof of honesty, integrity, and truth, and so do unfortunately disentitle witnesses to belief.

4913

THE accused was charged with the murder of one Nelson, a companion who had in his possession at the time a sum of money. The further facts of the supposed homicide are stated more fully in No. 518, post.

Error to review a judgment of the Circuit Court for Sawyer County; JOHN K. PARISH, Circuit Judge. Reversed.

The Court against objection permitted the prosecuting attorney on cross-examination to ask the accused these questions: "Did you have any trouble with any man there in that house while you were there?" Do you remember of making an assault upon a man there and breaking his arm?" "Did you kill a man at Ord, Nebraska?" "Did you kill two men at Ord, Nebraska?" State the trouble you had at Ord that caused you to leave there?" "Did the insurance company give you any reason for not giving you the insurance money?" referring to the insurance on a house belonging to the accused which was burned. "Did you ever have any talk with any of them that the reason they would not pay it was that you burned the house yourself?" "What was the insurance on the house?" To the last question the accused answered $200, and to each of the others he gave a negative answer. The Court frequently cautioned him that he need not make answers to any question that would tend to incriminate him.

For the plaintiff in error there was a brief by J. B. Alexander, attorney, and V. W. James, of counsel, and oral argument by Mr. Alexander.

For the defendant in error there was a brief by the Attorney-General, and oral argument by C. E. Buell, first assistant attorney-general.

MARSHALL, J. (after stating the case as above). . . . It is argued in support of the conduct of the trial at this point, that on cross-examination the previous life and character of the witness, especially when he is a party, may be inquired into to such an extent as in the sound judgment of the trial Court may seem proper. Such is undoubtedly the settled rule, and it is resorted to generally where the person accused of crime offers himself as a witness in his own behalf. There is no rule by which the exercise of that discretionary power of the Court can be guarded with exactness. The range is necessarily broad in order to fit the facts of particular cases, but there is a limit beyond which it cannot go. That limit is clearly reached and passed when questions are asked, manifestly, for the mere purpose of creating prejudice in the minds of the jurors, or the examination is carried on to such an extent and in such a manner as to become oppressive, and is not warranted by anything in the case. Questions as to previous convictions of criminal offenses, or serving

terms in prison or in jail from which convictions will be presumed, are uniformly permitted when the instances are not too remote, upon the theory that a person of that character will not be as likely to testify truthfully as a man whose life has not been thus blackened. "Our statute (§ 4073, Stats. 1898) expressly allows that kind of cross-examination. Questions relating to mere criminal charges, or acts which might be the foundation for criminal prosecutions, are usually rejected. They should not be permitted unless there are circumstances in the case suggesting that justice will or may be promoted thereby.

It would be a clear abuse of judicial discretion to permit such questions where the indications are plain that the purpose is not to bring out the truth in regard to the witness's life and character, and to thereby discredit his testimony, but for the purpose of discrediting the witness regardless of whether there is any warrant for the questions or not, and if he be a party, in that way to influence the minds of the jurors into a verdict against him. The administration of justice requires that trial Courts shall not have their discretionary powers circumscribed by any very narrow boundaries, but does require that such limit shall be placed upon them as will prevent any mere prejudice to be built up in the course of a trial, especially in an important case like this, which will tend to influence a jury to determine the facts otherwise than from the legitimate evidence produced in Court. It seems clear that such limit was passed in allowing the cross-examination in question, to the extent to which it was carried. It is one thing to honestly ask questions on cross-examination for the purpose of discrediting a witness, and quite another to ask questions of a witness who is a party, especially in a serious criminal case, for the purpose of injuring his cause in the eyes of the jury, and leading them to believe he was likely, because of his bad character, to have committed the offense charged.

A reading of the questions under consideration leads to the irresistible conclusion that no idea was entertained by the cross-examiner that proof would be elicited of the matters implied by them. We say "implied"; because the asking of the direct questions in the manner in which they were asked implied to some degree that the examiner was possessed of information upon which the questions were based; and although the answers were in the negative, the bad effect of the insinuations thrown out by the questions was not and could not have been removed entirely from the minds of the jurors. . . . The general rule, that the previous life and character of a witness can be inquired into, must be preserved, and the broad discretionary power of trial Courts in administering such rule fully recognized. The trouble here is that the cross-examination was allowed to be carried on manifestly without any reason except to create prejudice against the accused in the minds of the jurors. It was well calculated to have that effect and to bear materially on the ultimate result, especially since the whole case rested on circumstantial evidence.

It is clearly reversible error, that cannot be overlooked without lowering the standard of justice which it is the duty of the Court to rigorously maintain.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B. N. SMITH, Judge. The facts are stated in the opinion of the Court.

W. H. Shinn, and Earl Rogers, for appellant. W. F. Fitzgerald, Attorney-General, for respondent.

VAN DYKE, J.-The defendant was tried upon a charge of murder and convicted of manslaughter. He appeals from the judgment and from an order refusing a new. trial. . .

...

The defendant's wife was called as a witness and gave important evidence in his behalf. On cross-examination, for the avowed purpose of impeaching her, the district attorney, against continuous objection and protest on the part of the defendant, was allowed to ask a series of questions which, if answered affirmatively, would disgrace and degrade the witness. They were all wholly collateral and outside the issues in the case, and did not refer to the relation of the witness to the parties, to the subject of the action, or to the previous testimony of the witness. The asking of the questions implied, at least, an assertion of a belief on the part of the attorney that the witness had been guilty of gross immorality. It is charged by the defense that the questions were not asked for the purpose of getting before the jury the testimony of the witness upon the subject of investigation, but to insinuate damaging charges against the witness, which, by the rules of evidence, neither the witness nor the party could rebut, save by the denials of the witness, whose credibility was affected by the insinuations. That this charge was well founded is proven beyond cavil by the record. She was asked by a great variety of questions if she did not live by prostitution. She was questioned in reference to particular times and places, and to particular men, and as to whether she did not practice special modes of solicitation for immoral purposes. To all these questions the witness answered in the negative.

The defendant's contention, that by the decisions in this State this line of cross-examination is not allowable, is correct. Sec. 2051 of the Code of Civil Procedure says:

"A witness may be impeached, by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty or integrity is bad, but not by evidence of particular wrongful acts,

except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony."

In other States there is apparently a conflict of decisions upon the subject. (See Carroll v. State, 32 Tex. Crim. App. 431, 40 Am. St. Rep. 786, where the matter is discussed, and the cases cited.) But while there is a controversy as to whether such questions can be permitted, there is no difference in holding that when allowed the answer of the witness must be accepted as conclusive. In asking such questions the questioner takes that risk, and justly so, because under the rules of evidence no other witness can be allowed to testify upon the subject. . . . It has further been repeatedly held [in this State] that such collateral matters cannot be gone into, even upon cross-examination. Sec. 2051 of the Code of Civil Procedure expressly forbids the impeachment of a witness "by evidence of particular wrongful acts.'

In the case under consideration, after the prosecuting officers had gone out of their way in putting such questions, which were negatively answered, and which answers under all rules are made conclusive of the facts, they proceeded in their argument to insinuate to the jury that the answers were not true. This demonstrated conclusively that the purpose of asking the improper questions was to make insinuations against the character of the witness, and not to impeach her testimony, and by this improper mode of procedure to prejudice the defendant. . . .

Judgment and order reversed and cause remanded for a new trial. GAROUTTE, J., MCFARLAND, J., and HARRISON, J., concurred.

TEMPLE, J., concurring. I concur in the judgment and in the opinion of Mr. Justice VAN DYKE, except that I do not agree that questions irrelevant to the issues in a case, asked for the purpose of discrediting a witness, can never, in the discretion of the trial judge, be asked of a witness.

It is said that §§ 2051 and 2052 of the Code of Civil Procedure prohibit such evidence. In express terms these sections certainly do not. It is stated that a witness may be impeached: 1. By contradictory evidence; 2. By evidence that his general reputation for honesty and integrity is bad; and 3. By proving inconsistent statements. Other modes of impeachment are not expressly prohibited, and ever since the existence of the statute other modes have been freely resorted to. . . . The statute has, in fact, never been treated as prohibiting other usual modes of impeachment.....

We all agree that a witness cannot be asked questions merely for the purpose of degrading him; and while there has been much controversy as to admissibility of such evidence, no one contends that a party has an absolute right to indulge in such examination. It is not permissible to go into the former life of a witness and unnecessarily drag to light ancient scandals. The matter is almost entirely within the discretion of the trial Court, and such examination should be permitted only when and so far as it seems to be required for the ends of justice. . . . Rice in