Seymour D. (Seymour Dwight) Thompson.

A treatise on the law of trials in actions civil and criminal (Volume 1) online

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party testifying as his own witness
can be examined just as any other wit-
ness could be, in any respect material
and relevant to the issue. To some
extent more may be elicited from him
than from a common witness, because

his statements are admissions as well
as testimony. Any other construction
would render the statute a shield to
crime and criminals." State w.Witham,
72 Me. 531, 533.

1 State V. Cohn, 9 Nev. 179, 188.

2 Clark V. State, 50 lud. 514; Dou-
ohue V. People, 5(; N. Y. 208 (construc-
tion of a statute authorizing a convict
to be sworn, and making him " a com-
petent witness against any fellow-
prisoner, for any offense actually
committed while in prison)."

3 Thus, on the trial of an indictment
for murder, the State gave in evidence
the fact of a whispered conversation,
two days after the homicide, between
the defendant and the wife of the mur-
dei'ed man, she being jointly indicted
with him. It was held that he had a
right to testify as to what Avas said in
that conversation. Morrow v. State,
48 Ind. 432.

4 Fletcher v. State, 49 Ind. 124;
Knight V. State, 70 Ind. 375; Morri-
son V. State, 76 Ind. 335, 337.



of the privilege of testifying, he testifies under the same rules,
and may be impeached in the same manner, as other witnesses.^
The fact of his having been previously convicted of crime, may
be proved for this purpose ; ^ though it has been held that this
fact cannot be drawn from him on cross-examination, since it is
provable by the record only,Hhat being the best evidence.^ The
State may afterwards examine witnesses to prove his general
bad character or reputation/

§ 644. Wlietlier taking the Stand waives Privilege against
Self -crimination. — It is a sound view, in the interpretation of
such statutes, that they do not, by enabling the prisoner to tes-
tify in his own behalf, place him in a worse j^osltion than that
which another witness would occupy. By electing to take the
stand, he does not waive his privilege against self-crimination,
so as to be obliged to answer a question, the answer to which

1 Mershon v. State, 51 lud. 14;
State V. Beal, 68 Ind. 345; Morrison v.
State, 76 Ind. 335; State v. Clinton, G7
Mo. 380; s. c. 29 Am. Rep. 506; Bran-
don V. People, 42 N. Y. 265; Connors
«. People, 50 N. Y. 240; Fletcher v.
State, 4!) Ind. 124; s. c. 19 Am. Rep.
673; Mershou v. State, 51 Ind. 14;
Fletcher v. State, 49 Ind. 124. In Mis-
souri the law is in this sliape, that in a
criminal trial where the defendant of-
fers himself as a witness in his own be-
half, it is not error to allow the State,
over his objection, to examine witness-
es touching his general moral charac-
ter. He may be impeaclied as any other
witness, except that, on liis cross-ex-
amination, he can only be examined as
to matters in respect of which he has
testified on his examination-m-chief.
State V. Bulla (Mo.), 6 West. Rep. 440.
On the last point see State v. Palmer
(Mo ) , 5 West. Rep. 387 ; State v. Grant,
79 Mo. 113; State t\ Clinton, 67 Mo.
380. W^e understand tlie Missouri rule
to mean that, while such a witness

may be impeached by independent tes-
timony, yet it is not competent to lay
a foundation for impeachimg him by
asking questions on his cross-exam-
ination as t o his former antecedents
declarations, etc., as may be done in
the case of other witnesses. But he
may be impeached by disproving facts
stated by him, the same as any other
witness may. State v. Rider (Mo.), 6
West. Rep. 458, 461.

2 People V. Reinhart, 39 Cal. 449,
per Rhodes, J.

^ People V. Reinhart, supra.

* Newcomb v. Griswold, 24 N. Y.
298; People v. Herrick, 13 Johns. (N.
Y.) 82; Rex v. Inhabitants &c., 8 East,
77; Carpenter v. Nixon, 5 Ilill (N. Y.),

* State V. Clinton, 67 Mo. 380; State
V. Beaty, 25 Mo. App. 214; People v.
Beck, 58 Cal. 212. Under the Cali-
fornia statute, tlie iucpiiry extends to
his character for truth, honesty and
integrity. Cal. Code Civ. Proc, § 2051 ;
Cal. Penal Code, § 1102.


might furnish evidence which would subject him to, or which
could be used against him in, another criminal prosecution.^
We find, however, that some courts have taken the view that the
defendant, by taking the stand as a witness in his own behalf,
waives the privilege which another witness would have in respect
of self-crimination.^

§ 645. Jury entitled to draw Inferences from Witness' De-
meanor. — If such a witness refuses to answer proper and com-
petent questions, the refusal is a circumstance from which the
jury are at liberty to draw inferences unfavorable to him.^

§ 646. And the State's Counsel may comment on the
same. — While the mere failure of the prisoner to take the witness
stand in his own behalf is not, under most statutes, the subject
of observation by the State's counsel in the presence of the
jury,* yet if he does exercise his privilege by taking the witness
stand, his testimony is the subject of fair comment, precisely
like the testimony of any other witness.^ This right of fair
comment extends to his conduct, demeanor and appearance while
so testifying.^ " The same rights exist in favor of the district
attorney, to comment upon his testimony, or his refusal to an-
swer any proper question, or to draw all proper inferences from
his failure to testify upon any material matter within his knowl-
edge, as with other witnesses." ^

1 People V. Brown, 72 N. Y. 571. » state v. AVitham, 72 Me. 534. So

2 Com. B, Lannau, 13 Allen (Mass.), in a civil case: Andrews v. Erye, 104
564; Cora. v. Price, 10 Gray (Mass.), Mass. 234; Whart. Ev., §§ 533,
472; State v. Ober, 52 N. H. 459. 54G, 12G0; Hauof ?;. State, 37011. St.
Compare Foster v. Pierce, 11 Cash. 178.

(Mass.) 437; Low v. Mitcliell, 18 Me. * Post, § 1004.

372, 374; Roddy v. Finuegau, 43 Md. ^ State v. Anderson CNIo.), 8 Crim.

490; State v. Fay, 43 Iowa, 651. It has Law Mag. 519; s. c. 89 Mo. 312.

been held that, where a party in a civil ^ State v. Graynor (Mo.), 6 "West.

action testifies in his own behalf, he Rep. 207.

thereby waives the privilege of refusing ' State V.Harrington, 12 Xev. 125.

to answer pertinent questions on the See also People v. Tyler, 36 Cal. 522 ;

ground of self-crimination. Este v. People u. McGungill, 41 Cal. 429; State

Wilshire, 44 Oh. St. 636 (Owen, C. J. v. Huff, 11 Nev. 27.



§ 647. Testimony Evidence against liiiu on a Subsequent
Trial. — If the accused waives his privilege and takes tlie witness
stand in his own belialf, at any stage of the prosecution, he
waives it for every subsequent stage. Thus, if he gives testimony
on his preliminary examination, the same maybe put in evidence
asrainst him on the trial. ^ So, if he takes the stand as a witness
on his own behalf on one trial, what he so testifies may be put
in evidence against him on a subsequent trial. ^ These decisions
proceed upon the obvious principle that statements or admissions,
voluntarily made by a party, are always evidence against him.

§ 648. May testify as to his Intent or Motive. — As already
seen,^ it is competent for a party testifying as a witness to state
what his intent was in doing a particular act, whenever the ques-
tion of intent is material to the issue.* This rule of evidence is
of great value to persons accused of crime who may elect to tes-
tify in their own behalf; since in most crimes and misdemeanors
intent is a necessary ingredient of the offense. Under this rule,
the accused, when so testifying, is competent to state what the
intent was, with which he did the act imputed to him as a crime.^
He may explain what he mpant by words shown to have been
used by him.^ Where the charge is murder and the accused sets
up the so-called " plea of self-defense,'' he is entitled to testify
whether, at the moment when he committed the fatal act, he did
or did not really believe that he was in danger of death or great
bodily harm at the hands of the deceased.^ Where the charge
is assault and battery with intent to ravish, he may testify that the

1 People v. Kelley, 47 Cal. 125; state Mo. 627, 034; Thacher v. Phinney, 7
V. Glass, 50 Wis. 218. Compare Peo- Alleu (Mass.), 14G; Snow v. Paine, 114
pie V. Gibbous, 43 Cal. 557. Mass. 520.

2 Com. V. Reynolds, 122 Mass. 454. ^ Boleu v. State, 2(5 Oh. St. 371 ;

3 Ante, §383. Kerraius v. People, GO N. Y. 221; State
■* Greer v. State, 53 Ind. 420 (over- v. Banks, 73 Mo. 592; s. c, reversed

ruling Zimraerraau v. Marchland, 23 ou another point, 10 Mo. App. Ill;

Ind. 474, and qualifying Columbus v. Babcock v. People, 15 Huu (N. Y.),

Dalin, 31] Ind. 330) ; Thurston v. Cor- 347.

nell, 38 N. Y. 281; White v. State, 53 « People v. Farrell, 31 Cal. 577.

Ind. 5:»5; Van Sickle v. Brown, G8 ^ State v. Harrington, 12 Nev. 126.


assault was made with a different intent ; ^ and where the charge
is larceny, he may testify as to what his intention was in resi)ect
of the goods, at the time when they came into his possession. ^

§ 649. View that lie may be Cross-Examined as any other
Witness. — There is a difference of view as to the scope of cross-
examination, where the accused in a criminal case offers himself
as a witness. One view is that, unless the lan2:uao:e of. the statute
is restrained, it places him, in respect of his cross-examination, in
the same situation as that of any other witness.-* So, where a
party in a civil action becomes a witness in his own behalf, he
thereby subjects himself to all the rules regulating the direct and
cross-examination of other witnesses.* Accordino; to this view,
his cross-examination is subject to the same rules, and the same
questions may be put to him for the purpose of affecting his
credibility.^ Questions calling for facts in his history, which
would disgrace him or disparage his character, may be put to
him, where they might be put to any other witness.^ Under
this view, he may refuse to answer a question which would dis-
grace him, ^ under the same circumstances which would entitle
any other witness to exercise that privilege.^ But this is his
privilege an a loitnes'^, and not as a party .^ He therefore can-
not, through his counsel, object to a question put to him on the
witness stand, ui>on this ground ; but if he does not wish to an-
swer it, he must claim his privilege.^'' But this view is very much
discarded, 'AS we shall presently see, and some of the cases cited in
this section must be regarded as overruled in the same jurisdictions,

§650. [Continued.] Interrogated as to former Arrests
and Convictions. — Under this view, whether a witness, or de-

'1 Greer v. State, 53 lud. 420. •» Clark v. Reese, 35 Cal. 89.

2 White V. State, 53 lud. 5!)5. '" Gill v. People, 5 Thorap. & C.

3 Connors v. People, 50 N. Y. 240; (N. Y.) 308.

Fralich v. People, G5 Barb . (N. Y.) 48; 6 Braudou v. People, 42 N. Y. 265.

People V. Reiuhart, 39 Cal. 449; State ^ AntP., §287.

V. Abrams, 11 Ore. 1<;9, 173; State v. ^ People v. Reiuhart, 39 Cal. 449.

Ober, 52 N. H. 459; s. c. 13 Am. Rep. » Ante, §306.

88; State v. Efler, 85 N. C. 585. ^^ People v Reiuhart, supra.



fenclant in a criminal trial testifying in his own behalf, may be
asked on cross-examination touching his commission of another
crime, for the purpose of affecting his credibility, is a matter
resting largely within the discretion of tlie trial court. " The
limits to which a witness may be cross-examined on matters not
relevant to the issue for the purpose of judgiug of his character
and credit from his ow'n voluntary admissions, rest in the sound
discretion of the court trying the cause. Such questions maybe
allowed where there is reason to believe it will tend to the ends
of justice ; but they ought to be excluded when a disparaging
course of examination seems unjust to the witness and uncalled
for by the circumstances of the case."^

§651. [Continued.] Illustrations of this View. — Forinstance,
where the prosecution is for the unlaivful selling of intoxicating liquors,
he may be asked whether he has not recently been tried and convicted

several times for the unlawful seUing of such Hquors.'- So, it has

been held within the discretion of the trial court to allow a witness to
be asked, " Are you not now under indictment for murder in the second

degree in this court?" ^ So, where, on the trial of an indictment

for murder in the first degree, the accused took the stand as a witness
in his own behalf, it was held within the discretion of the trial court to
allow the State's counsel to ask him, on cross-examination, whether he

had not once before been arrested for an assault with intent to kill.^

So, it was held that a prisoner, testifying in her own behalf, might prop-
erly be asked whether she had ever been arrested for theft, ^ the ques-
tion being one which the court, in the exercise of its discretion, might

1 Wroe V. State, 20 Oh. St. 400; offered in a case where the accused

Hanoff V. State, 37 Oh. St. 178, 181; testifies as a witness in his own be-

State V. Pfefferle, 36 Kan. 90; State v. half. State v. Watson, 65 Me. 74, 79.

Lawhoru, 88 N. C. 634; State v. Pat- And it is not admissible for the ac-

tersou, 2 Ired. L. (N. C.) 346; State v. cused to give evidence to contradict

Garrett, Busbee (N. C), 357. Com- it; it imports absolute verity. Ibid:

pare State v. Davidson, 67 N. C. 119; State v. Lang, 63 Me. 215.
People V. Clark (N. Y.), 8 N. East Rep. ^ state v. Pfefferle, 36 Kan. 90.

38. By the statute of Maine the record ^ Wroe v. State, 20 Oh. St. 460.

of a previous conviction of a criiniual * Hanoff v. State, supra. Compare

offense is made competc'ut to affect the Lee v. State, 21 Oh. St. 151; People

credibility of a witness. Rev. Stat. v. Crapo, 76 N. Y. 288.
Me., chap. 82, § 94; State v. Wat.son, « Brandon v. People, 42 N. Y= 265-.

63 Me. 128. Such a record may be


allow in the case of another witness.^ . . . . AYhere a witness was on
trial for a felonious assault and elected to testify as a witness in his
own behalf, it was held that the people might ask him, on cross-exam-
ination, " How many times have you been arrested?" ^

§ 652. View that Cross-Extiniinatiou is Confined to Exaui-
ination-in-Chief . — The other, and more widely prevailing view
is that the cross-examination of the accused is confined to those
matters which were touched upon in his examination-in-cliief,
and that it cannot extend beyond this, although the questions
may pertain to the issues.^ If the trial court permit a more
extensive cross-examination, the constitutional privilege of not
being a witness against himself is violated.^ Irrespective of
the terms of the statute, or of the considerations touchino-
the privilege of the accused, this would be the view where
the American rule of strict cross-examination, already con-
sidered,^ prevails; ^ whereas in those jurisdictions where the
English rule prevails, the defendant, by taking the witness stand
in his own behalf, might subject himself to the hazards of a gen
eral cross-examination.^ In any view, the accused may be inter-
rogated as to any matter concerning which he has testified on his
direct examination.^ In one jurisdiction, which follows the so-
called American rule, the defendant in a criminal prosecution
testified that two of the prosecutino; witnesses had a o-ruda'e
against him. It was held inadmissible for his counsel to ask him
to state the grounds of the grudge, for the reason that such evi-
dence would introduce collateral issues.^

1 LeBeau v. People, 34 N. Y. 223; ute the rule was otherwise. State??.
Great Western &c. E. Co. v. Loomis, Clinton, 07 Mo. 330; State v. Cox, 67
32 N. Y. 127; ante, § -liU. Mo. 392; State v. Eugaii, (38 Mo. 214;

2 Couuors V. People, 50 N. Y. 240. State v. Testermau, 68 Mo. 408.

3 State u. Charaberlaiu, 89Mo. 129; •* People v. O'Brien, m Cal. 602
s. c. 1 S. W. Rep. 145; State v. Mc- (McKee, J., dissenting).

Graw, 74 Mo. 573; State v. Turner, 76 ^ Ante, § 432.

Mo. 350; State v. McLaughlin, 76 Mo. « As in California: People v. Mc-

320; State v. Porter, 75 Mo. 171; State Guugill, 41 Cal. 429.

V. Douglass, 81 Mo. 231; State v. Pat- ' Cora. v. Mullen, 97 Mass. 545.

terson, 88 Mo. 88; State v. Lurch, 12 » People v. Russell, 46 Cal. 121.

Ore. 99; State u. Saumlers, 14 Ore. " Chelton r. State, 45 Md. 564.

300. Under a former IMissouri stat-


§ G53. [Coiitiimed.J Previous Arrests, Convictions, etc.,
not inquired into. — As already seen, ^ it is a general rule api)li-
cable to the cross-examination of witnesses, that it is within the
discretion of the court to allow collateral facts affecting; the
credibility of the witness, to be inquired into, subject to another
rule, that his answers are conclusive and cannot be contradicted.
Under this view, as also seen, the witness may be questioned
concerning previous arrests and convictions for crime. But un-
der the view stated in the preceding section, where the accused,
on a criminal trial, avails himself of the privilege afforded by the
enabling statute, and takes the witness stand in his own behalf,
he cannot be interrogated as to previous arrests, convictions, or
other disparaging circumstances in his history. He cannot be
examined, against his objection, as to former indictments against
him for other offenses not pertaining to the issue to be tried. '^
He cannot be required to answer such a question as, " Did you
not belong to Jesse James' gang?"^ He cannot be required to
answer questions, the answers to which would disgrace him and
disparage his character.^ He cannot be required to write his
own name, or that of another person, in the presence of
the jury, in order that they may compare it with the signa-
ture on a note, which he is charaedwith havino- uttered knowinoj
it to be forged — the reason being that such a course violates
the prisoner's right of not giving criminating evidence against
himself.^ He cannot be asked whether he has been con-
victed of crime, — the reason that, in a criminal cause, a wit-
ness cannot be impeached or sustained by proof of general
moral character,*' and, a fortiori^ by proof of an is olated

^ Ante, §§ 404, 465. which we have been thus far happily

2 Smith V. State, 70 Aha. 21. delivered."

3 Clarke v. State, 78 Ala. 474. lu ■« Ilayward v. People, 90 111. 492;.
the opinion in this case the court Gifford v. I'eople, 87 111. 210; People
quote the following observation of v. Hambliu, C8 Cal. 101; People v.
Campbell, J., in People v. Thomas, 9 Elster (Cal.), 3 West Coast Rep. 33, 37.
Mich. 314: "But, perhaps, the worst ^ State v. Lurch, 12 Ore. 99.

thing would be the degradation of our ^ Fletcher v. State, 49 Ind. 124c

criminal jurisprudence by converting This, though the rule in Indiana, is

it into an inquisitorial systc':ii, from not tlie universal rule. Ante, § 552.


act of good or bad conduct.^ He cannot be asked, on cross-
examination, whether he had killed a man in another State, or
how often he had been without a pistol, or whether he had not
been at target practice most of the time at a particular place, —
the reason being that, to compel a prisoner thus to testify as to
his whole life on the witness stand, would not merely discredit
hira as a witness, but would prejudice the jury against him and
against his defense in a particular case.-^ But his examination
should be limited to matters pertaining to the issue, in order to
prevent a conviction of one offense by proof that the accused
may have been guilty of another,^ To require the prisoner, as
the price of taking the witness stand in his own behalf, to run
the gauntlet of being interrogated as to every disparaging fact
connected with his past history, is deemed to deprive him in a
large measure of the privilege conferred by the enabling statute,
and also to violate his constitutional privilege against self-crimi-
nation. The reason given for the conclusion of the foreiroinsr
cases, by Chief Judge Church, of the Court of Appeals of New
York, has been frequently quoted with apjiroval by other courts:
" By taking the stand as a Avitness, while he may subject himself
to the rules applicable to other witnesses, he is not thereby
deprived of his rights as a party; and it follows that his counsel,
while he is in the witness box, has a right to speak for him, and
that an error committed by the court against him may inure to
his benefit as a party. Especially ought this protection to be
afforded to persons on trial for criminal offenses, wdio often, by
a species of moral compulsion, are forced upon the stand as wit-
nesses ; and being there, are obliged to run the gauntlet of their
whole lives on cross-examination, and every immorality, vice or
crime of which they may have been guilty or suspected of being
guilty, is brought out, ostensibly to affect credibility, but prac-
tically used to produce a conviction for the particular offense for
which the accused is being tried, upon evidence w^hich otherwise
w^ould be deemed insufficient. Such a result is manifestly un-

1 Parley ■«. state, 57 lud. 331. 3 People v. Brown, 72 N. Y. 571;

2 State V. Saumlers, U Ore. 300. Clarke v. State, 78 Ala. 474,481.


just, and every protection should be afforded to guard against
it." 1

§ 654. Crimes uot Affecting- Credibility. — For stronger
reasons, an accused person who takes the witness stand in his
own behalf, cannot be interrogated as to other offenses, or acts of
misconduct, which do not necessarily affect his credit or ve-
racity .^ In so holding, it was said by Mr. Chief Judge Church,
in giving the opinion of the New York Court of Appeals: "The
discretion which courts possess, to permit questions of particu-
lar acts to be put to witnesses for the purpose of impairing cred-
ibility, should be exercised with great caution, when an accused
person is a witness on his own trial. He goes upon the stand
under a cloud; he stands charged with a criminal offense, not
onh', but is under the strongest possible temptation to give evi-
dence favorable to himself. His evidence is therefore looked
upon with suspicion and distrust; and if, in addition to this, he
may be subjected to a cross-examination upon every incident of
his life, and every charge of vice or crime which may have been
made against him, and which have no bearing upon the charge for
which he is being tried, he may be so prejudiced in the minds of
the jury as frequently to induce them to convict, upon evidence
which otherwise would be deemed insufficient. It is not legiti-
mate to bolster up a weak case by probabilities based upon other
transactions. An accused person is required to meet the specific
charge made against him, and is not called upon to defend him-
self against every act of his life. * * * ]^^o r^le of law is
violated, in requiring that, to entitle questions' to be put to ac-
cused persons, which are irrelevant to the issue, and are calcu-
lated to prejudice him with the juiy, they should at least be of a
character, which clearly go to impeach his general moral charac-
ter, and his credibility as a witness. The old rule, not to allow

1 People V. Brown, 72 N. Y. 571, 2 people v. Crapo, 7G N. Y. 288,

574 (distiuguishiug People v. Brau- 289,293; Peoples. Browu, 72 N. Y.

clou, 42 N. Y. 265; People v. Conuors, 571; State v. Huff, 11 Nev. 17, 20. See

50 N. Y. 240: People v. Real, 42 N. Y. 24 N. Y. 299; Gale v. People, 2G Mich.

270.) 159.


irrelevant questions to such persons, would be preferable, and
more in accordance with sound principles of justice ; but it is un-
necessary in this case to go bej^ond the requirement that the
answer must tend directly to impeach him." ^ In an earlier
case in the same State it was said, on obvious grounds, by Jewett,
J., that, " the single fact that he [the witness] had been com-
plained of and held for trial, for the commission of a crime, did
not affect his moral character." ^

§ 655. [Continued.] Illustrations. — Thus, it has been held that
a prisoner, on trial for burglary and larceny, who elects to take the
stand as a witness in his own behalf, cannot be asked, on cross-examina-

Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 1) → online text (page 89 of 145)