pear in this list,' and that he is not confined to the list, but may call witnesses whose names do not appear in it,2 if not as witnesses-in-chief, at least in rebuttal.3 § 232. Examination on the Voir Dire. When a witness is produced to be sworn in chief, and an objection to his competency is made by the adverse party, either on the ground of interest, bias, infamy, or any other disqualifying cause, the court will proceed to try his competency, and this is usually done by examining the witness on the voir dire, as we have already seen, or, sometimes, by extrinsic evidence upon the question. But the common law grounds of objection to competency have been so far removed by statute, that this subject has become unimportant, and has already been sufficiently discussed in a former part of this work." 1 People v. Quick, 51 Mich. 547; People v. Walcott, Id. 612. 2 People v. Lopez, 26 Cal. 112; People v. Symonds, 22 Cal. 348; People v. Bonney, 19 Cal. 426. But see Smith v. State, 4 Greene (Iowa) 8 State v. Parish, 22 Iowa, 284. 5 Supra, § 176. Supra, Chap. XI. CHAPTER XVIII. EXAMINATION-IN-CHIEF, OR DIRECT EXAMINATION. § 233. General Rules. § 234. Power of Court to control and limit. § 235. The Oath or Affirmation. § 236. Interpreters. § 237. Separate Examination. - Exclusion from Court-room. § 238. § 239. Inquiring as to Intent or Motive. § 240. Rule forbidding Leading Questions. § 241. What Questions are Leading. § 242. When One may lead his Own Witness. § 243. Propriety and Sufficiency of Witness' Answers. § 244. Objections to questions or answers. § 233. General Rules. It is a rule of evidence that the party holding the affirmative, is bound, in the first instance, to exhaust his testimony, either in sustaining his own allegations or answering those of his antagonist. The party examining a witness-in-chief, is bound at his peril to ask all material questions in the first instance; and if he fail to do this, it cannot be done in reply. No new question can be put in reply unconnected with the subject of the cross-examination, and which does not tend to explain it. If a question as to any material fact has been omitted upon the examination-in-chief, the usual course is to suggest the question to the court, which will exercise its discretion in putting it to the witness.1 11 Stark. Ev. 150. In R. v. ination, and therefore must confine Beezley (4 Car. & P. 218), the pros- himself to what arose out of the cross ecutor, by direction of the court, called witnesses, whose names appeared on the back of the indictment, examination. See also the remarks of Mills, J., on this point, in Braydon v. Goulman, 1 Mon. (Ky.) 115, 117, and had them sworn to give the pris- 118; R. v. Stimpson, 2 Car. & P. 415; oner's counsel a chance of cross Knapp . Haskall, 4 Id. 590; Whit examination, but did examine them in tingham v. Bloxham, Id. 597; Rowe r. chief. The prisoner's counsel, having accordingly cross-examined, it was held that after this, the counsel for the crown could not examine them in chief, but only by way of re-exam Brenton, 3 Mann. & Ry. 133; Giles . Powell, 2 Car. & P. 259; George r. Radford, 3 Id. 464; Brown v. Giles, Another rule, or rather another form of the rule just discussed, which may be briefly noticed here, is that which requires the plaintiff to give evidence-in-chief, anticipating or avoiding some supposed defence set up in a special plea interposed by the defendant. This rule is thus stated in a leading English case: "When affirmative pleas of justification are put on the record with the general issue, the plaintiff's counsel may, if they please, not only prove the facts of the declaration, but also may, in the first instance, and before the defendant's case is gone into at all, go into any evidence which goes to destroy the effect of the justifications, by way of anticipating the defence; or, if they please, content themselves with proving the fact on the general issue, and then close their case, leaving the defendant to make out his justifications as he can, and afterwards go into evidence in reply as to the justifications. But if the plaintiff's counsel, knowing by the pleas what the defence is to be, close their case, and trust to evidence in reply, they are to be restricted to such evidence as goes exactly to answer the case proved, or attempted to be proved by the defendant, in support of the justifications, and they cannot be allowed to go beyond it."1 In some States, notably Pennsylvania, greater indulgence in respect of the order of proof is allowed; 2 but the whole matter lies in the discretion of the presiding judge, and belongs more particularly to the general law of evidence and pleading than to that of witnesses, and needs no further consideration here. § 234. Power of Court to control and limit. The time and manner of examining a witness is in the discretion of the judge before whom the trial is had. This discretion. extends to determine the length of time, and the extent 5 to which the witness may be examined. If counsel persist in an improper course of examination, tending to delay or embarrass the opposite party, or to hinder the course of justice, 1 Pierpont v. Shapland, 1 Car. & P. 437. See also Wharton e. Lewis, 1 Car. & P. 529; Scott v. Woodward, 2 McCord (S. C.) 161. 2 Curren v. Connery, 5 Binn. (Pa.) 488; Richardson r. Stewart, 4 Id. 198; Culbush v. Gilbert, 4 S. & R. (Pa.) 551. 3 Duncan v. McCullough, 4 S. & R. (Pa.) 480. 4 Mulhollin v. State, 7 Ind. 646; Morcin v. Solomons, 7 Rich. (S. C.) 97. 5 Adriance v. Arnot, 31 Mo. 471. the judge may send the witness from the stand.1 So he may interfere and protect the witness against irrelevant inquiries,2 and overrule a question repeated after being several times substantially answered, and allow the witness to finish a proper answer to a proper question before permitting another to be put.4 The judge has an unlimited right, in its discretion, to interrogate the witness himself, both in civil and criminal cases, even to the extent of asking leading questions. So also the court is the exclusive judge whether a witness understands the obligation of an oath, and has sufficient intelligence to testify; and may compel counsel to disclose, before examining a witness, what he expects to prove by him. Again, the court may limit the number of witnesses to be examined in proof of a particular fact; and one who complains that the court refused to permit a particular witness to be sworn, must show that such witness was competent, or it will be presumed that he was not.10 9 § 235. The Oath or Affirmation. To render the viva voce testimony of a witness legal evidence, it must be given under the solemn sanction of an oath or affirmation; and it is the duty of the party calling him to see that he is sworn." As to the manner of administering the oath, the peculiar cere 1 Peck v. Richmond, 2 E. D. Smith (N. Y.) 380. 11 Hawks v. Baker, 6 Me. 72, where a witness having testified, believing 2 Varona v. Socarras, 8 Abb. (N. Y.) that he had been sworn, but by some oversight the oath had been omitted, Pr. 302. 3 Morcin (S. C.) 97. v. Solomons, 7 Rich. and this was not discovered by either Stater. Scott, 80 N. C. 365. 5 Epps v. State, 19 Ga. 102. 6 Huffman v. Cauble, 86 Ind. 591; Com. r. Galavan, 9 Allen (Mass.) 271. party till after the trial; nevertheless the verdict was set aside. Contra, Cady v. Norton, 14 Pick. (Mass.) 236, and Slauter v. Whitelock, 12 Ind. 338, where it is held that the objec tion must be made as soon as the 7 State v. Perry, Busb. (N. C.) L. omission is discovered, or the error 330. See supra, §§ 2, 12. People v. White, 14 Wend. (N. Y) 111. Contra, see Force v. Smith, 1 Dana (Ky.) 151. 9 Gray v. St. John, 35 III. 222; Anthony r. Smith, 4 Bosw. (N. Y.) 53. D Davis r. Melvin, 1 Ind. 136; Whitewater Valley Canal Co. . Dow, Id. 141. See also Singleton's Will, 8 Dana (Ky.) 315. will be waived. In Nesbitt r. Dallam (7 Gill & J. (Md.) 494), it is said that if a party admits proof to be taken in a cause without an oath, after it has been acted upon and made the basis of a judgment, he cannot object to its admissibility. S. P., Lawrence r. Houghton, 5 Johns. (N.Y.) 129. See also White v. Hawn, Id. 351; Blanchard v. Richley, 7 Id. 198. 4 5 mony adopted in his own country, or among those of the same religious belief as himself, or which he deems most binding on his conscience, is to be resorted to. Jews may be sworn on the Pentateuch, with covered head; 2 Mahometans, upon the Koran; 3 Gentoos, by touching the foot of a Brahmin; Chinese, by the ceremony of killing a cock, or breaking a saucer, the witness declaring that if he speaks falsely, his soul will be similarly dealt with; a Scotch covenanter, and a member of the Scottish Kirk, by holding up the hand, without kissing the book." Quakers, and others who profess to entertain conscientious scruples against taking an oath in the usual form, are allowed to make an affirmation, i.e. a solemn religious asseveration, that their testimony shall be true. A wilful, false oath under such circumstances is perjury.8 A witness need be sworn but once, though examined on different days, and the issues may vary during the trial.9 The answer he makes to the clerk, when demanding his name, is a part of his testimony.10 If sworn before the arraignment, on a criminal trial, but after the prisoner has signified his readiness to go on, it is unnecessary to re-swear him." If competent as a witness-in-chief, he must be sworn in chief, although called to prove a particular fact only.12 1 Ormychund v. Barker, 1 Atk. 21. 2 Id. p. 40, 42; Willes, 543; Cowp. 389; or on the Bible, if they say they are Christians. R. v. Gilham, 1 Esp. N. P. 285. And even a Christian may be sworn on the Old Testament, if he says he considers that a more binding form. Edmonds v. Rowe, Ry. & Moo. N. P. 77. 3 Morgan's Case, 1 Leach, C.C. 64; Fachina v. Sabine, 2 Str. 1104. 21. See Ormychund ». Barker, 1 Atk. 5 R. v. Enhehman, Car. & Marsh. 249; R. v. Alsley, O. B. Sess. 1804; Peake Ev. 141 n (5 ed.). 6 Mildrone's Case, 1 Leach C. C. 459; Walker's Case, Id. 498; Dutton v. Colt, 2 Sid. 6; Mee v. Reid, Peake, N. P. 22. And so may an ordinary American witness. Gill v. Caldwell, 1 Ill. 28; Doss v. Birks, 11 Humph. (Tenn.) 431; unless objection be made at the time. McKinney v. People, 7 Ill. 540. 7 U. S. Rev. Stat. § 1. The usual form is, “You do solemnly, sincerely, and truly declare and affirm," etc. N. Y. Code Civ. Pro. § 847. In Massachusetts, in early times, liberty to affirm was confined to Quakers. United States v. Coolidge, 2 Gall. (U. S.) 364. In New Jersey, a witness who does not object to being sworn cannot be allowed to affirm. Williamson v. Carroll, 1 Harr. (N. J.) 217. 8 Sells v. Hoare, 3 Bro. & B. 232. 9 Bullock v. Koon, 9 Cow. (N. Y.) 30. 1 People v. Winters, 49 Cal. 383. 11 State v. Weber, 22 Mo. 321. 12 Unless he be a party to the record, called to prove the loss or destruction of a paper. Jackson v. Parkhurst, 4 Wend. (N. Y.) 369. |