It is competent for a witness before testifying to refresh his memory from memoranda of a conversation, though they were not made by him but by his stenographer in his presence: State v. Magers, 35 Or. 538, 57 Pac. 197.

Private writings may be used to refresh the memory of a witness when made by him or another under his direction immediately thereafter, or at any time when the fact was fresh in his memory, and he knew the facts were correctly stated in the writing: Susewind v. Lever, 37 Or. 367, 61 Pac. 664.

Stenographer's notes made at a preliminary examination may be used to refresh the memory of the person who made them, to contradict the testimony of the witness, where the proper foundation therefor has been laid: State v. Bartmess, 33 Or. 117, 54 Pac. 167.

A witness may, while testifying in an action to recover the contents of her trunk, use what she swears is a correct list of the articles which she knew were in the trunk, made by her some two months after the trunk was taken, and soon after she found defendants had it: Oyler v. Dautoff, 36 Or. 361, 59 Pac. 474.

A clerk who kept certain books and knew them to be correct, while giving testimony, may refresh his memory by consulting

$849.

memoranda copied from the books and carefully compared by him, if, after so doing. he is enabled to testify from memory of the original transactions: Haines v. Cadwell, 40 Or. — -, 66 Pac. 910.

The error, if any, of allowing a clerk who kept certain books to testify after refreshiing his memory from memoranda copied from the books, is cured by subsequently introducing the books in evidence: Haines v. Cadwell, supra.

It is only when a witness has to rely upon a memorandum from which to testify that it need be produced, and if, after inspecting the writing, he has sufficient recollection of the facts to testify of his own recollection, he need not produce the writing for the inspection of the other party; but, if, after examining the writing, the witness can not recall the facts, and is dependent upon the memorandum, the writing must be produced and submitted for inspection: State v. Magers, 36 Or. 42, 58 Pac. 892.

A memorandum is not admissible in evidence unless it appears that the person who made it knew when he made it that it was true, and that he is at the time he testifies unable to state the facts except by using the statements therein contained: Susewind v. Lever, 37 Or. 367, 61 Pac. 644; Friendly v. Lee, 20 Or. 202, 25 Pac. 396.

CROSS-EXAMINATION.-A party may not cross-examine a witness on any matters oler than those stated in the direct examination, or properly connected therewith. Within these limits, the cross-examination should be liberal, and may properly extend to other matters that tend to limit, explain, or modify the facts stated on cross-examination, provided they are directly connected therewith: Ah Doon v. Smith, 25 Or. 89, 34 Pac. 109; Sayres v. Allen, 25 Or. 211, 35 Pac. 254; Maxwell v. Bolles, 28 Or. 5, 41 Pac. 661; State v. Ogden, 39 Or. 195, 65 Pac. 449.

The scope of the examination lies within the discretion of the court, but an abuse of discretion is error: Sayres v. Allen, 25 Or. 211, 35 Pac. 254; State v. Reinhart, 26 Or. 482, 38 Pac. 822; State v. McGrath, 35 Or. 114, 57 Pac. 321.

A witness may be examined on matters not connected with the direct examination, in order to test his accuracy, veracity, and credibility: State v. Savage, 36 Or. 209, 60 Pac. 610; Smitson v. Southern Pac. Co. 37 Or. 88. 60 Pac. 907; State v. Mah Jim, 13 Or. 235, 10 Pac. 306.

A person on cross-examination may be asked if he has not made other statements inconsistent with his present testimony, recalling to him time, place. and persons present, in order to lay the foundation for impeaching testimony: Krewson v. Purdom, 13 Or. 563, 11 Pac. 281. The foundation may also be laid on cross-examination for showing the hostility of the witness: State v. Ellsworth, 30 Or. 145. 47 Pac. 199; but questions for showing hostility must, on cross-examination, be limited to the

[L. 1862;

feeling for or against the person testified about: State v. Welch, 33 Or. 38, 54 Pac. 213.

That a witness has been convicted of a crime may be shown on cross-examination in order to show his credibility: State v. Bacon, 13 Or. 143, 9 Pac. 393, 57 Am. Rep. 8, note; see the discussion in State v. Bartmess, 33 Or. 121, 54 Pac. 167. Whether a person may be asked concerning any serious charge brought against him rests in the sound discretion of the court: State v. Chee Gong, 17 Or. 635, 21 Pac. 882.

But he can not be cross-examined on matters otherwise simply for the sake of disgracing or harassing him: State v. Olds. 18 Or. 440, 22 Pac. 940; State v. Bacon, 13 Or. 144, 9 Pac. 393, 57 Am. Rep. 8, note.

Where the plaintiff, in an action on a contract, discloses on his examination in chief only so much of the transaction as leaves an inference of the contract's legality, it is proper for defendant to bring out on cross-examination the remaining facts and circumstances under which the contract arose, and which show its illegality: Ah Doon v. Smith, 25 Or. 94, 34 Pac. 1093.

A witness in an action for damages to realty caused by diversion of a stream, having testified on direct examination that floods brought down driftwood. a question whether they also brought down boulders and rocks is not proper cross-examination, in the absence of a showing that the witness testified in regard to boulders in his direct examination: Oldenburg v. Oregon Sugar Co. 40 Or. 65 Pac. $69.

In an action to recover money alleged to have been collected by defendant as plaintiff's agent, where defendant alleges that he paid a designated amount to plaintiff through her husband, out of which plaintiff's claims should be satisfied, and the husband has testified in rebuttal that the money so paid was due him on account of a partnership existing between himself and defendant, and collections made by defendant as receiver and otherwise on accounts due him and another as partners, he may properly be cross-examined as to the nature of the business of such partnership, and as to the collections and receivership: Sayres v. Allen, 25 Or. 211, 35 Pac. 254.

On an issue as to the consideration for a mortgage, the party attacking the instrument may cross-examine the mortgage on the facts and circumstances surrounding its execution and delivery: Maxwell v. Bolles, 28 Or. 6, 41 Pac. 661.

In a criminal case, the district attorney has the right to cross-examine a witness for the defendant as to anything that would show his interest in the result, and anything he did, or that he aided the defendant about the trial, for the purpose of enabling the jury to properly weigh the evidence of such witness, and to intelligibly pass upon his credibility: State v. Olds, 18 Or. 440, 22 Pac. 940.

Where the defendant called a witness who gave evidence material to the defense, and then testified on cross-examination that he gave money himself to assist the defense, and procured money from others in Portland, Tacoma, and Seattle for the same purpose, it is not competent either on crossexamination of the same witness or by making him a state witness to prove the names of the particular persons who contributed money, or that they were saloon keepers or gamblers: State v. Olds, supra. While the indorsement of the payee imports a consideration, and the holder may rest on that presumption until evidence of the illegality of the note is produced; yet, if. where such illegality is pleaded, he testifies in chief that he gave consideration for the note, such testimony is material to the issues made, and the defendant is entitled to cross-examine in regard to the consideration: Kenny v. Walker, 29 Or. 43, 44 Pac. 501.

In an action for negligence in dumping ashes from an engine and failing to extinguish the fire in such ashes, where defendant's engineer has testified to the exercise of exceptional care on the part of defendant's servants in extinguishing such fire, because of a previous fire that day from the same engine. it is proper to permit cross-examination as to the location of the previous fire: Lieuallen v. Mosgrove, 37 Or. 452, 61 Pac. 1022.

A witness who has testified on direct examination that the scow, the condition of which at the time it was sunk is in issue, was built by a certain person, and was in good condition at the time it was delivered to the defendant, may be asked on crossexamination if he knew the builder before he built the scow, and whether he ever knew or heard of the scow being sunk before it was finally sunk in defendant's service: Oregon Pottery Co. v. Kern, 30 Or. 328, 47 Pac. 917.

In an action for damages for the loss of a scow, where a witness has testified that he calked the scow just before its delivery to defendant. and that it was then in good condition and worth a certain sum, witness may be asked on cross-examination if he ever knew about the scow before he was called to repair it, if he had ever examined it, for the purpose of showing the means of knowledge and extent of information of the witness on the question of value: Oregon Pottern Co. v. Kern, supra.

position of plaintiff when she fell from a train and was injured, questions as to statements made by him out of court concerning how the accident occurred, inconsistent with his testimony in chief, were properly allowed to lay foundation for impeachment: Smitson v. Southern Pac. Co. 37 Or. 88, 60 Pac. 907.

A defendant in a criminal action, who voluntarily testifies in his own behalf, may be cross-examined as to statements made on his preliminary examination, contrary to his testimony on the trial, although he did not in his direct examination refer to the preliminary examination: State v. Bartmess, 33 Or. 120, 54 Pac. 167; State v. Abrams, 11 Or. 169, 8 Pac. 327. See the general discussion in regard to this matter in State v. Bartmess.

Where a party on cross-examination brings out matters not testified to on direct, he can not complain of the witness being examined on such matters on redirect; but he can not on redirect examination be asked whether he had any reason to doubt that a specified defendant was a partner in the firm who executed the notes in suit, where there was nothing in the cross-examination to call out such a question: Farmers' Bank v. Saling, 33 Or. 394, 54 Pac. 190.

Where the cross-examination of a party goes to matters outside of his examination in chief, but which are pertinent to his adversary's case, and might have been introduced by him in the first instance, such examination becomes subject to the rules that would govern a direct examination on his own account, and it is discretionary with the court whether the testimony shall be introduced then and in that manner: Osmun v. Winters. 30 Or. 188, 46 Pac. 780; Long v. Landers, 10 Or. 175.

Where a juror in a former case was called to prove statements sworn to by S., who was a codefendant in the first case, but who had died pending the second case, such juror can not be asked on cross-examination if he did not hang the jury for thirtysix hours, and other questions touching his conduct as a juror in said action: State v. Huffman, 16 Or. 16, 16 Pac. 640.

A defendant in an action for injury from fire alleged to have been kindled by him, can not be cross-examined as to the custom of back firing, for the purpose of proving his negligence, where, on his direct examination, he has neither admitted that he set the fire, nor testified to any custom: Willis v. Lance, 28 Or. 371, 43 Pac. 384, 487.

Where a witness testified in chief that he had found money on the premises of the codefendant, but nothing was said about how he happened to be searching on such premises. he can not be asked on crossexamination why he made such search, as such testimony is not connected with the testimony in chief: State v. Savage, 36 Or. 208, 60 Pac. 610.

A witness who has testified on direct examination that he has destroyed a given receipt, in answer to a question asked solely to show the reason for its nonproduction, can not be asked on cross-examination how he came to pay the money and get the receipt therefor: Schreyer v. Turner Flouring Co. 29 Or. 16, 43 Pac. 719.

A witness who has been asked in chief to produce a given note without any question as to its consideration, or as to the manner or purpose of its execution, can not tetsify on his cross-examination in what capacity he acted on any matters pertaining to such note: Schreyer v. Turner Flouring Co. 29 Or. 17, 43 Pac. 719.

month, and in a different place in the same town, from the one then being investigated by the trial jury; State v. Adams, 20 Or. 525, 26 Pac. 837.

Where it appeared that a party had two furnished houses in the same vicinity, and there was a question which was his residence, it was not error in the court to exclude evidence on his cross-examination tending to show at which place he had the most furniture. Such evidence was too remote to give any aid in determining the question: Weidert v. State Ins. Co. 19 Or. 274, 24 Pac. 242, 20 Am. St. Rep. 809.

The testimony of a witness is not only his evidence in chief, but is that evidence as explained, modified, limited, or contradicted by the cross-examination. Both direct and cross-examination must be treated as evidence given on behalf of the party calling the witness: Ah Doon v. Smith, 25 Or. 89, 34 Pac. 1093.

Though the cross-examination may have been on an immaterial point, and hence not proper, it was harmless, where the facts were stated on direct examination: Capital Lumb. Co. v. Learned, 36 Or. 551, 59 Pac. 454.

The matter of permitting a witness to be recalled for further examination after having been fully cross-examined and excused is within the sound discretion of the trial court: State v. Robinson, 32 Or. 51, 48 Pac. 357.

Where defendant in a criminal case offers himself as a witness, he is subject to the same rules as to cross-examination as any other witness: State v. Abrams, 11 Or. 169. 8 Pac. 327. This should be qualified in that a defendant in a criminal action can not be questioned in regard to any other crime than that for which he is being tried. See the discussion in State v. Bartmess, 33 Or. 123, 54 Pac. 167.

IMPEACHING ONE'S OWN WITNESS. -A party who calls a witness and is surprised by his unexpected and unfavorable testimony on a material point, may, for the purpose of refreshing his recollection and inducing him to correct his testimony, or explain his apparent inconsistency, repeat to such witness, with the circumstances of time, place, and persons present, declarations and statements previously made by him which are inconsistent with his present sworn testimony, and he may ask whether he made them. If the witness denies or does not remember having made the statements, the party who called him may then offer testimony thereof to excuse his mistake in calling him, and destroy the effect of any adverse testimony he may have given. Care must be taken, however, that such statements are not allowed to go to the jury as substantiative evidence; they should be carefully limited to the purpose of excuse and explanation: State v. Steeves. 29 Or. 103. 43 Pac. 947; State v. Bartmess, 33 Or. 114, 54 Pac. 167; Langford v. Jones, 18 Or. 326, 22 Pac. 1064.

The state is entitled to contradict one of its witnesses by asking him if he did not

§ 851. Re-examination of Witness.

testify that he had the conversation related when he was examined by the state's attorney under the information law: State v. McDaniel, 39 Or. 161, 65 Pac. 521. And where the state claimed that defendant killed deceased because of his fear of the deceased's father, and the witness testified that a few days before the homicide the defendant stated to the witness that deceased's father was a savage old bull dog, it is held that the state is entitled to contradict the witness by producing his affidavit, in which he had previously sworn that defendant had also said in the same conversation that he was afraid to go with deceased because of her father: State v. McDaniel, supra.

But this section does not allow a party to inquire about matters regarding which the witness has not given any testimony. or testimony of a weak and unsatisfactory character, and then prove statements made at another time in reference to such matters: Langford v. Jones, 18 Or. 326, 22 Pac. 1064.

PRACTICE OF IMPEACHING BY PROOF OF CONTRADICTORY STATEMENTS: See note to §§ 852 and 853.

See note to § 842, ante.

The matter of permitting a witness to be recalled for further cross-examination after having been fully cross-examined and

§ 852. Witness, how Impeached.

excused from the stand is within the sound discretion of the trial court: State v. Robinson, 32 Or. 51, 48 Pac. 357.