contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purpose of the trial as he may think fit. When the attention of the witness has been called to the writing, and it is desired to contradict him, the statement must be put in evidence. R. v. Riley, 4 F. & F. 964; R. v. Wright, Id. 967. In R. v. Hughes, Derby Winter Assizes, 1868, Byles, J., said the proviso as to the judge doing as he thinks fit, applied equally before any answer had been given by the witness or after, -in fact to the whole of the trial; and the use he always made of a deposition was to have it read before any attempt was made to contradict the witness by it.

If the counsel on cross-examination puts a paper into the witness's hand, and questions him upon it, the counsel on the other side has a *right to see the paper, and re-examine upon it. R. v. Duncombe, 8 C. & P. 369, 34 E. C. L.

[*144 As to the proper mode of conducting a cross-examination on depositions, the following cases were decided before the passing of the statute above cited; and see ante, p. 67.

In R. v. Edwards, 8 C. & P. 26, 34 E. C. L., it was proposed on the part of the prisoner to put the depositions into the hands of a witness, and to desire him to look at his own, and then to ask him whether he would adhere to the statement which he had just made, and the judges (Littledale and Coleridge, JJ.), thought there was no objection to this. But in R. v. Ford, 2 Den. C. C. 245, in which a similar course had been pursued, and the opinion of the Court of Criminal Appeal asked upon its propriety, Lord Campbell refused to hear it argued, saying it was res judicata; and referred to a case reserved by Parke, B., with a note of which the learned baron had furnished the court, and in which the judges decided that this course was inexpedient, and ought not to be allowed. Lord Campbell added, that the proper course was to read the deposition at the time, or put it in afterwards as the evidence of the party so using it.

The court, however, in its discretion will occasionally put the witness's deposition into his hands, or cross-examine or allow him to be cross-examined upon it without giving the counsel for the crown a right to reply; for an instance of this see R. v. Quin, 4 F. & F. 818. See also, R. v. Hughes, supra.

In R. v. Smith, 1 Den. C. C. 536, the magistrate's clerk had put, irregularly, some questions to the witnesses, the answers to which were inserted by him in the depositions. Afterwards the witnesses appeared again before the magistrates, and, in the presence of the prisoners,

1In impeaching a witness by proof of former statements, when those statements are in writing, the whole should be shown to the witness. In rebuttal, the whole may be read to the jury. Wills v. State, 74 Ala. 21.

were re-sworn; the depositions were read over, an opportunity was given to the prisoners to cross-examine the witnesses, and the depositions were then signed. On the trial the prisoners' counsel, without putting in the depositions, proposed to cross-examine a witness upon what passed between him and the magistrate's clerk, which the judge at the trial refused to permit; but the Court of Criminal Appeal, upon a case reserved, held that the question was proper, inasmuch as the magistrate's clerk, a person in no authority, could not, by any act of his, attach to the writing a character which would exclude parol evidence of that which was so written.

On what subjects a witness may be cross-examined. A witness may be questioned on cross-examination not only on the subject of inquiry, but upon any other subject, however remote, for the purpose of testing his character for credibility, his memory, his means of knowledge, or his accuracy. Whether or no the question put will have that effect will depend on the circumstances of the case, and frequently also upon information which is in possession of the crossexamining counsel only; judges, therefore, are in the habit of granting considerable license to counsel in this matter, from the implicit confidence which is placed in them that they will not turn the power, which is put in their hands for the purposes of justice, into an instrument of oppression. The moment it appears that a question is being put which does not either bear upon the issue, or enable the jury to judge of the value of the witness's testimony, it is the duty of the court to interfere, as well to protect the witness from what then *becomes an injustice or an insult, as to prevent the time of *145] the court from being wasted.'

As to when a witness may refuse to answer questions put to him, see post, p. 149.

Cross-examination of witnesses producing documents only. Where a witness is called merely to produce a document which can be proved by another, and he is not sworn, he is not subject to crossexamination. Simpson v. Smith, 1822, cor. Holroyd, J.; 2 Phill. Ev. 467, 10th ed.; and per Bayley, J., 1824, Stark. Ev. 196, 4th ed.; Davis v. Dale, Moo. & Malk. 514. Thus where, on an indictment for perjury, a sheriff's officer has been subpoenaed to produce a warrant of the sheriff, after argument, he was ordered to do so without having been sworn. R. v. Murlis, Moo. & Malk. 515. But where the party producing a document is sworn, the other side is entitled to cross-examine him, although he is not examined in chief. R. v. Brooks, 2 Stark. 472, 3 E. C. L. Where, however, a person called to produce a document, was sworn by mistake, and asked a question which he did not answer, it was held that the opposite party was not entitled to cross-examine him. Rush v. Smyth, 4 Tyrw. 675; 1 Cr. M. & R. 94. So, where a witness has been asked only one immaterial question, and his evidence Where exception is not taken to improper matter it is waived. State v. Mills, 88 Mo. 417.

is stopped by the judge, the other party has no right to cross-examine him. Creevy v. Carr, 7 C. & P. 64, 32 E. C. L. Where a witness is sworn, and gives some evidence, if it be merely to prove an instrument, he is to be considered a witness for all purposes. Morgan v. Bridges, 2 Stark. N. P. 314, 3 E. C. L.

Re-examination. A re-examination which is allowed only for the purpose of explaining any facts which may come out on cross-examination, must of course be confined to the subject-matter of the cross-examination. Stark. Ev. 231, 4th ed. The re-examination of a witness is not to extend to any new matter, unconnected with the cross-examination, and which might have been inquired into on the examination in chief.1 If new matter is wanted, the usual course is to ask the judge to make the inquiry; in such cases he will exercise his discretion, and determine how the inquiry, if necessary, may be most conveniently made, whether by himself or by the counsel; 1 Phill. Ev. 473, 10th ed.2

ness.

The rule with regard to re-examinations is thus laid down by Abbott, C. J., in The Queen's case, 2 Br. & Bingh. 297, 6 E. C. L. "I think the counsel has a right, on re-examination, to ask all questions which may be proper to draw out an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful: and also of the motive by which the witness was induced to use those expressions; but he has no right to go further, and introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the wit"I distinguish between a conversation which a witness may have had with a party to a suit, whether criminal or civil, and a conversation with a third person. The conversations of a party to the suit relative to the subject-matter of the suit, are in themselves evidence against him in the suit: and if a counsel chooses to ask a witness as to anything which may have been said by an adverse party, the counsel for that party has a right to lay before the court all that was said by his client in the same conversation; not only so *much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected [*146 with the part introduced upon the previous examination, provided only that it relate to the subject-matter of the suit; because it would not be just to take part of a conversation as evidence against the party, without giving the party at the same time the benefit of the entire residue of what he said on the same occasion." In Prince v. Samo, 7 A. & E. 627, 34 E. C. L., the Court of Queen's Bench said, that they could not assent to the doctrine laid down in the above case, and they held, that when a statement made by a party to a suit in giving evidence on a former trial, has been got out on cross-examination, only so 1 Schaser v. State, 36 Wis. 429.

2 Counsel is not entitled to recall and cross-examine the prosecutor, because another witness for the State gives a different account to that given by the prosecutor. People v. Parton, 49 Cal. 632.

of any person in the habit of receiving letters, of the genuineness of a post-mark. See Abbey v. Lill, 5 Bingh. 299, 15 E. Č. L. So antiquaries as to the date of ancient handwriting. Tracy Peerage, 10 Cl. & Fin. 191. So the opinion of a ship-builder on a question of seaworthiness. Thornton v. Roy. Exch. Ass. Co., Peake, N. P. C. 25; 1 Camp. 117; Chapman v. Walton, 10 Bingh. 57, 25 E. C. L. However, the Court of Queen's Bench in Campbell v. Rickards, 5 B. & Ad. 840, 27 E. C. L., held (overruling several previous decisions), that the materiality of a fact, concealed at the time of insuring, was a question for the jury alone. "Witnesses conversant in a particular trade may be allowed to speak to a prevailing practice in that trade; scientific persons may give their opinion on matters of science; but witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced, if the parties acted in one way rather than another."

It is the constant practice to examine medical men as to their judgment with regard to the cause of a person's death, who had suffered violence; and where, on a trial for murder, the defence was insanity, the judges, to whom the point was referred, were all of opinion that in such a case a witness of medical skill might be asked whether, in his judgment, such and such appearances were symptoms of insanity, and whether a long fast, followed by a draught of strong liquor, was likely to produce a paroxysm of that disorder in a person subject to it? Several of the judges doubted whether the witness could be asked his opinion on the very point which the jury were to decide, viz., whether, *from the other testimony given in the case, the act with which *148] the prisoner was charged was, in his opinion, an act of insanity. R. v. Wright, Russ. & Ry. 456. On an indictment for cutting and maiming, Park, J., on the authority of the above case, allowed a medical man, who had heard the trial, to be asked whether the facts and appearances proved showed symptoms of insanity. R. v. Searle, 1 Moo. & R. 75. And it seems that in McNaughten's case such questions were allowed to be asked. 3 Russ. Cri. 571, 5th ed. (h). A question may arise in these cases, whether, where a witness, a medical man, called to give his opinion as matter of skill, has made a report of the appearances or state of facts at the time, he may be allowed to read it as part of his evidence. The practice in Scotland, on this point is as follows: The scientific witness is always directed to read his report, as affording the best evidence of the appearances he was called on to examine; yet he may be, and generally is, subjected to a further examination by the prosecutor, or to a cross-examination on the prisoner's part; and if he is called on to state any facts in the case, unconnected with his scientific report, as conversations with the deceased, confessions made to him by the prisoner, or the like utitur jure communi, he stands in the situation of an ordinary witness, and can only refer to the memoranda to refresh his memory. Alison's Prac. Cr. Law of Scotland, 541.' So also it seems skilled witnesses

1 As to the evidence of experts generally, see Norman v. Wells, 17 Wend. 136; Cattrill v. Myrick, 3 Fairfield, 222; Boies v. McAllister, Id. 308; Lester v. Pittsford,

the occurrence of the fact to which it relates, although the entry or memorandum would not of itself be evidence, Kensington v. Inglis, 8 East, 289; as formerly, on unstamped paper, Maugham v. Hubbard, 8 B. & C. 14, 15 E. C. L. But a witness cannot refresh his memory by extracts from a book, though made by himself, Doe v. Perkins, 3 T. R. 749; or from a copy of a book; for the rule requiring the best evidence makes it necessary to produce the original, though used only to refresh the memory. Burton v. Plummer, 2 Á. & Ë. 343, 344, A. E. 29 E. C. L.; Alcock v. The Royal Exchange Ins. Co., 13 Q. B. 292, 66 E. C. L.

Where a witness on looking at a written paper has his memory so refreshed, that he can speak to the facts from a recollection of them, his testimony is clearly admissible, although the paper may not have been written by him. Thus where it has been material to prove the date of an act of bankruptcy, the court has several times permitted witnesses to refer to their depositions taken shortly after the bankruptcy, though such depositions were of course not written by themselves, but merely signed by them. Taylor, Ev. 1219, 6th ed., and cases there cited.

Where the witness cannot speak without referring to a book, the book must be produced in court. Per Coleridge, J., Howard v. Canfield, 5 Dowl. P. C. 417. If produced, the counsel for the other party has a right to see it, and cross-examine from it. R. v. Hardy, 24 How. St. Tr. 824; or he may look at it and ask when it was written, without being bound to put it in evidence. R. v. Ramsden, 2 C. & P. 603, 12 E. C. L. If he cross-examines to other entries than those referred to by the witness, he makes them part of his own evidence. Gurney, B., Gregory v. Travenor, 6 C. & P. 281, 25 E. C. L.

Per

A photograph, said to be that of a person whose identity had to be proved upon a trial for bigamy, was allowed to be shown to two persons who had known him, on the ground that it was a permanent visible representation of the image made on the minds (the retinas of *the eyes) of the witnesses by the sight of the person represented, so that it was "only another species of the evidence [*147 which persons give of identity, when they speak merely from memory." R. v. Tolson, 4 F. & F. 104.

Examination as to belief. A witness can depose to such facts only as are within his own knowledge; but even in giving evidence in chief, there is no rule which requires a witness to depose to facts with an expression of certainty that excludes all doubt in his mind. It is the constant practice to receive in evidence a witness's belief of the identity of a person, or of the fact of a certain writing being the handwriting of a particular individual, though the witness will not swear positively to these facts. See R. v. Miller, 3 Wils. 427. It has been

1 A witness must not swear to impression simply. That is descending to a test too vague. It should be persuasion or belief founded on facts within his own knowledge. Carter v. Connell, 1 Whart. 392; Carmalt v. Post, 8 W. 406; Salmon v. Feinour, 6 G. & J. 60; Jones v. Chiles, 2 Dana, 32. [State v. Norton, 76 Mo. 180; State v. Thorp, 72 N. C. 186; McKnight v. State, 6 Tex. App. 158; Cummins v. State, 58 Ala. 387. But he