the twelve judges determined that the objection was properly allowed. (m) Though a witness be not compellable to answer degrading questions, it seems allowed (as in the case of criminating questions), (7) that the questions may legally be asked. (s) In Rose v. Blakemore, (t) where a witness for the plaintiff refused to answer a question, whether he had published a particular handbill, on the ground that he had been threatened with a prosecution for the publication; and the counsel for the defendant, in his address to the jury, put it to them that the witness really must have been concerned in the publication, for that a denial of it, if he could deny it, would not injure him; Abbott, C. J., interposed and said, that no such inference ought to be drawn, and that there was an end of the protection of a witness, if a demurrer to the question were to be taken as an admission of the fact inquired into. And in Lloyd v. Passingham, Lord Eldon expressed a similar opinion. (u) clusive. If the question be of a tendency to criminate or degrade, and Witness's the witness answers it, the cross-examining party must be satis- answer confied with the answer, and will not be allowed to falsify it by evidence; (v) that is, if the question be merely collateral to the point in issue; for if it be relevant to it, and the witness deny the thing imputed, evidence may be called to contradict. Thus where a witness for a prosecution in larceny had been asked, in cross-examination, whether he had not been charged with robbing his master, and whether he had not afterwards said he would be revenged of him, and would soon fix him in gaol, and had denied both; Lawrence, J., ruled, that as to the former, his answer must be taken as conclusive; but that as the words were material to the guilt or innocence of the prisoner, evidence might be adduced that they were spoken by the witness. (w) Where on an indictment for murder, which was prosecuted by A witness (m) See Dodd v. Norris, 3 Campb. 519. R. v. Holmes, 41 L. J. M. C. 12. Rex v. Pitcher, C. & P. 85. The following cases are in favour of the position that a witness is compellable to answer questions tending to disgrace or disparage. R. v. Edwards, 4 T. R. 440. Holloway, Ms. 2 Phill. Ev. 428. dell v. Pratt, Moo. & Mal. 108. cases, ante, p. 573. (r) See ante, p. 573. (s) See 1 Stark. Ev. 212. (t) R. & M. N. P. C. 382. Watson, 2 Stark. N. P. C. 157. Frost v. See R. v. (u) 16 Ves. 64. See the note of the Reporters in Rose v. Blakemore, in which doubts are ably expressed, with deference to such high authorities, whether these dicta be not inconsistent with the general principles on which the rules concerning the right of witnesses to refuse an answer to questions have been established. (v) Rex v. Watson, 2 Stark. R. 149, 151, 158. Rex v. Clarke, 2 Stark. R. 244, per Holroyd, J. Harris v. Tippett, 2 Campb. 637, cor. Lawrence, J. For VOL. III. the court will not try a collateral ques- (w) Yewin's case, 2 Campb. 638; see PP cannot be he is a spy. asked whether the attorney-general for the government, a police officer, on cross-examination, stated that he had attended a meeting by the direction of the commissioners of police, and that his instructions were to attend the meeting and report, and that he attended the meeting and reported; he was asked whether he attended as a spy, and the question was objected to. Lord Campbell, C. J., 'I am of opinion that it is irregular, not on the ground that the witness is called on to criminate himself, and may refuse to answer, but on the ground that he is called upon to draw an inference from the facts. It will be open to the counsel for the prisoner to denominate the witness a spy hereafter if he think fit; but I am of opinion that he cannot ask the witness "Did you go as a spy?" (x) Privilege of the witness only. The privilege of refusing to answer is the privilege of the witness, and not of the party; for that reason, Lord Tenterden, C. J., refused to allow counsel to support, by argument, the privilege as belonging to the party whom he represented. (y) It was formerly held that if a witness answered any questions on cross-examination on a matter rendering himself liable to forfeiture or punishment, he could not afterwards claim his privilege, but must answer throughout. (2) And so if a witness voluntarily answered questions tending to degrade him on his examination in chief, he was bound to answer on cross-examination, however penal the consequence may be. (a) But it has since been held that it makes no difference in the right of a witness to protection any time, and that he has chosen to answer in part; and the witness is entitled to protection at whatever stage of the examination he choses to claim it. (b) A witness is entitled to protection at although he may have an- A witness may Could a witness be asked whether he had been convicted? By the 28 & 29 Vict. c. 18, s. 6, (c) 'a witness may be questioned as to whether he has been convicted of any felony or misdemeanor, and, upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, it shall be lawful for the crossexamining party to prove such conviction; and a certificate containing the substance and effect only (omitting the formal parts) of the indictment and conviction for such offence, purporting to be signed by the clerk of the court, or other officer having the custody of the records of the court, where the offender was convicted, or by the deputy or clerk of such officer (for which certificate a fee of five shillings and no more shall be demanded or taken), shall, upon proof of the identity of the person, be sufficient evidence of the said conviction, without proof of the signature or official character of the person appearing to have signed the same. Where before the C. L. P. Act, 1854, s. 25, an almost similar clause to the above enactment, the defendant was asked in cross-examination whether there had not been proceedings against him in the county court at the suit of one Agutta in respect of a similar claim, which he had resisted, and upon which he had given evidence, and the jury notwithstanding found their verdict for the then plaintiff, (x) Reg. v. Barnard, 1 F. & F. 240. (z) East v. Chapman, M. & M. 46. (a) Per Dampier, J., Winchester Sum. Ass. 1815, Mann. Ind. Witness, 222. (b) Reg. v. Garbett, 1 Den. C. C. 236. (c) This section is almost the same as the C. L. P. Act, 1854, s. 25. and it was objected that the question could not be put without producing the record of the proceedings in the county court; and the objection was overruled, and the defendant answered that there had been such proceedings, in which he had given evidence, and that he had lost the verdict; the Court held that no new trial ought to be granted by reason of this question having been allowed, and said, 'We dissent from the obiter dictum of Cresswell, J., in Macdonnell v. Evans, as to what stands upon the same ground, viz., the necessity of producing the record of the conviction in order to found the question, on cross-examination, Have you been convicted?" Upon a question collateral to the issue, as a rule, the questioner is bound by the answer; so that extraneous evidence is vain. Either the witness answers, "I have been convicted," and the question is useless, or he denies it, and then (apart from the Common Law Procedure Act 1845, s. 25, which does not touch this case) the proof of the conviction is forbidden. It cannot be given in evidence before the witness has answered, for it is not evidence in the cause. It could not be given in evidence after, because the answer is conclusive; and so of the proceedings in the county court in the present case. The case of Macdonnell v. Evans, the Queen's case, (ƒ) and numerous other cases, in which it has been held that documents must be produced, are cases in which either the document would have been evidence upon the issue, or to contradict the witness if he answered in a particular way, or in which the precise terms and language of the documents were necessary to be referred to in order to answer the question. This is not a question as to the contents of a written document.' (g) cannot be asked, 'Did you not write that letter in answer to one charging you with forgery? Where a witness called for a plaintiff was asked on cross-examina- A witness tion by the defendant's counsel, who produced a letter purporting to be written by the witness, 'Did you not write that letter in answer to a letter charging you with forgery?' it was held that the question could not be put. The rule is that the best evidence in the possession or power of the party must be produced. Generally the original document is the best evidence; but circumstances may arise in which secondary evidence of its contents may be given. In this case these circumstances did not exist. For anything that appeared, the defendant's counsel might have the letter in his hand when he put the question. It was sought to give evidence of a letter without in any way accounting for its absence, or showing any attempt made to obtain it. The best evidence of the document was not tendered. (e) (f) 2 B. & B. 288, 292. (g) Henman v. Lester, 12 C. B. (N. S.) 776. Byles, J., dissentiente. (e) Macdonnel v. Evans, 11 C. B. 930. The court, however, studiously guarded against laying down any general rule, Jervis, C. J., saying, 'It is unnecessary, as it seems to me, for the court to lay down any general rule upon this subject.' During the argument, Maule, J., said, 'If you want the jury to know that there was a letter containing a charge of forgery, the proper way to do so is by producing the letter itself;' and again, "Suppose the witness had said, "I did write this letter in 2. By proof of contradictory statement. A foundation must be laid on cross examination. 2ndly. The credit of a witness may be impeached by giving evidence of his having said or written touching the cause what is at variance and inconsistent with his testimony on the trial. (h) But in order to lay a foundation for such discrediting evidence, it is necessary first to ask the witness, when it is proposed to discredit by proof of contradictory verbal statements, upon cross-examination, whether he has made the statement or declaration, or held the conversation which it is intended to prove. (i) Thus if a witness, on being examined in chief as to some transaction supposed to have occurred between certain persons, should admit that he had heard of such a thing, but does not know its cause, it would be irregular to prove his having made a declaration respecting the cause, in order to show his knowledge of the cause, without first asking him in the cross-examination whether he had not made such a declaration; or if he had answered that he did not remember the transaction, it would be equally irregular, without such previous crossexamination, to prove declarations made by him respecting the transaction for the purpose of showing that he must have remembered it (j) for it would, in many cases, have an unfair effect upon the witness and upon his credit, and would deprive him of that reasonable protection which it is the duty of the court to afford to every person who appears as a witness, to allow proof of his former conversation without first interrogating him as to that conversation, and reminding him of it, in order to call up all the powers of his memory as to the transaction. (k) And it is not enough to ask the ing a founda general question, whether the witness has ever said so and so, because it may frequently happen that, upon the general question, he may not remember having said so; but the witness must be asked as to the time, place, and person involved in the supposed contradiction; because, when his attention is challenged to particular circumstances, he may recollect and explain what he has formerly said. Where, therefore, a witness had denied that he had ever said that he was in partnership with the defendant, but had not been questioned as to the particular person, or conversation; Tindal, C. J., refused to allow a witness to be asked whether on a Mode of lay tion for proof of contradictory statements. answer to it?" The court treated the (h) De Sailly v. Morgan, 2 Esp. N. P. goods in his possession he gave a different account of the matter, proof of the conviction containing the testimony of the witness is insufficient; it is necessary to prove it by the testimony of those who heard what was said. Rex v. Howe, 1 Campb. 461. S. C. 6 Esp. 125. (i) The Queen's case, 2 B. & B. 299. Carpenter v. Wall, 11 A. & E. 803. (j) The Queen's case, 2 B. & B. 299. (k) 2 B. & B. 300. Abbot, C. J., in delivering the opinion of the judges, added that, in any grave or serious case, if the counsel had, on his cross-examination, omitted to lay the necessary foundation, the court would, of its own authority, call back the witness in order to give him an opportunity of doing so. Another reason why he ought to be cross-examined is, that he may have an opportunity of explaining his conduct, 2 B. & B. 314. particular occasion the witness had told him that he was in partnership with the defendant. (1) A witness may be crossexamined as to By the 28 & 29 Vict. c. 18, s. 5, (m) 'a witness may be crossexamined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the indict- written statement or proceeding, without such writing being shown to him; but ments made if it is intended to contradict such witness by the writing, (n) his by him. 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 purposes of the trial as he may think fit.' This clause, by sec. 1, applies to all courts of judicature as well criminal as all others, and to all persons having by law or by consent of parties authority to hear, receive, and examine evidence ;' and consequently any court of sessions trying any offence, or any justice or justices hearing any charge of any offence, may require the production of any writing, &c., though the word 'judge' alone occurs in the clause. clause. This 5th section is the same in substance as the 17 & 18 Vict. Observations c. 125 (The Common Law Procedure Act 1854) s. 24. As it is obvious on the new that some questions are likely to arise upon this 5th section, it may be well to advert to them. The clause seems to assume that the writing is in the possession of the party who is cross-examining, (1) Angus v. Smith, M. & M. 473. The witness was allowed to be recalled, and asked the particular question; and the same rule was laid down by Parke, B., in Crowley v. Page, 7 C. & P. 789, post, p. 589, note (x), and in Rex v. Pearce, Gloucester Spr. Ass. 1829, MSS. C. S. G. Learned judges have in many instances allowed witnesses to be recalled in order to lay a foundation for the admission of such contradictory evidence. In Reg. v. Harris, Salop Spr. Ass. 1842, upon an indictment for murder, the prisoner had no counsel, and in his defence to the jury he alleged certain statements to have been made by the principal witness for the prosecution, and imputed that his son, who could prove the statements, had been prevented from attending to give evidence for him; and Patteson, J., stopped the trial, and ordered the son to be sent for, at the same time directing that no communication should be made to him of the matters as to which he was going to be examined. The prisoner having no attorney, and the son not having been examined by any one as to what statements he had heard the witness make, a difficulty arose as to the mode which was best to be adopted in the examination of the son, and the cross-examination of the witness, and the following mode was adopted as the best under the peculiar circumstances of the case:-The son was first examined by the editor, at the request of the learned judge, as to what he had heard the witness say, the witness being kept out of court during such examina tion, and then the witness was called in (m) As to the practice on this subject (n) In order to contradict by the writing, it must be put in as evidence. R. v. Riley, 4 F. & F. 964; R. v. Wright, 4 F. & F. 967. |