and rejected, and may estimate its probable effect if it had been received, provided no language is used that will improperly bias the jury for or against either party. Indeed it has been held that the active participation of the court in the examination of a witness, even to the extent of suggesting to counsel the manner in which the questions should be properly framed, or warning a witness that if he answers a certain question he may have to answer another, though not a commendable practice, is not ground for a new trial unless a party is actually prejudiced thereby." 2 A witness may very properly be questioned by the court as to his understanding of a question which has been asked him by counsel, and the court may, at any time, in order to expedite the administration of justice, peremptorily check and silence a very voluble or abusive witness, or interpose sua sponte and without the objection of counsel, and particularly if a party has no counsel, to exclude incompetent evidence Sometimes, as a matter of practice, jurors are permitted interrogate a witness, and his answers, when relevant, are not objectionable because thus informally obtained. A lengthy examination by a juror, during which the juror's mental attitude or bias towards the parties or the issue is exhibited, should not be permitted or encouraged.10 A very broad line of demarcation should be drawn and 1 Queen Ins. Co. v. Studebaker, 117 Ind. 416; Thompson v. Ish, 99 Mo. 166; Keith v. Wells (Colo., 1890), 23 Pac. Rep. 991; State v. Milling (S. C. 1892), 14 S. E. Rep. 284; Hodge v. State (Fla., 1890), 7 S. Rep. 593. Robinson v. State, 82 Ga. 535; Hodge v. State (Fla., 1890), 7 S. Rep. 593; Hudson v. Hudson (Ga., 1893), 16 S. E. Rep. 349; Sanders v. Bagwell (S. C., 1893), 15 S. E. Rep. 714; Bauer v. Beall (Colo., 1889), 23 Pac. Rep. 345; O'Conner v. Ice Co., 56 N. Y. Super. Ct. 410 (witness called and examined by court over objection of counsel). 3 Metropolitan St. R. Co. v. Johnson (Ga., 1893), 18 S. E. Rep. 816. Cf. contra, Jefferson v. State, 80 Ga. 16. 4 Insurance Co. v. Slowitch, 55 N. Y. Super. Ct. 452. 5 See Sharp v. State, 51 Ark. 147. 6 State v. Mathews, 98 Mo. 125. 7 Robinson v. State, 82 Ga. 535; Bourden v. Bailes, 101 N. C. 612. 8 Durrett v. State, 62 Ala. 434; People v. Turcott, 65 Cal. 126. 9 McClure v. Com., 81 Ky. 448. 10 State v. Merkley (Iowa, 1888), 39 N. W. Rep. 111. Sometimes a defendant is permitted by statute to make a personal statement under oath to the jury of his defense. He is not, in such a case, a witness, nor can he be examined or cross-examined by the jurors or by counsel. The court should, of its own motion, protect him from the questioning recognized between the competency of evidence and its credibility. The admissibility of evidence is a judicial question not within the province of the jury,' and no remark which is made by the judge during the examination of a witness as to his competency or the relevancy or admissibility of his evidence, or the reason for its exclusion or admission, can be urged as ground for a new trial. But the weight and credibility of testimony are for the jury, and all judicial observations or remarks upon the credibility of a witness or the amount of weight to be given to his evidence which are made during the examination of a witness are improper and may be objected to.3 That the remarks were inadvertently made is immaterial if a party is substantially prejudiced by them, though it seems the error may be remedied by a prompt withdrawal or explanation of the objectionable words, or by an instruction to the jury to disregard them." and interference of counsel, or of any other person, and a neglect to do so, if objection is promptly made, will be ground for reversal. Hankins v. State (Fla., 1892), 10 S. Rep. 822. 1 See ante, §§ 11-13. 2 State v. Young, 105 Mo. 634; Patterson v. State, 86 Ga. 70; Lewis v. State (Ga., 1893), 15 S. E. Rep. 697; Com. v. Ward (Mass.), 32 N. E. Rep. 663; Arnold v. State, 81 Wis. 278; Butler v. State (Ga., 1893), 16 S. E. Rep. 894; State v. Turner, 36 S. C. 534. In a case of homicide the witness was in the room and was repeatedly questioned as to the exact spot on which he was sitting. On his answering evasively the court said: "You must have seen a part of what was going on, didn't you?" Adding, "We all know that if any thing is going on in a room it is a slight circumstance where a man sits. He may turn his chair or turn around. He is not fixed like a pillar of wood. The jury understand that perfectly well. It is a waste of time to try and enlighten them on the subject." Held no error. Carthaus v. State, 78 Wis. 560; 47 N. W. Rep 679. 3 Sharp v. State, 51 Ark. 147; State v. Raymond, 53 N. J. L. 260; People v. Wood, 126 N. Y. 249; Shepherd v. State, 31 Neb. 389; Brunker v. Cummins (Ind., 1893), 32 N. E. Rep. 732; Sterling v. Callahan, 94 Mich. 536; Hudson v. Hudson (Ga., 1893), 16 S. E. Rep. 349; State v. Jacobs, 106 N. C. 695; People v. Fleming, 14 N. Y. S. 200; People v. Wood (N. Y., 1891), 27 N. E. Rep. 362; Campbell v. State, 30 Tex. App. 369; People v. Willard, 92 Cal. 482; State v. Lucas (Oreg., 1893), 33 Pac. Rep. 538; People v. Hull, 86 Mich. 449; Bone v. State, 86 Ga. 108; Newberry v. State, 26 Fla. 334. 4 Garner v. State, 28 Fla. 113. 5 Johnston v. State, 94 Ala. 35; Reinhold v. State, 130 Ind. 467; 30 N. E. Rep. 306; Ryan v. State, 83. Wis. 486; Com. V. Ward (Mass., 1893), 32 N. E. Rep. 693; State v. Black, 42 La. Ann. 861; Wynn v. City R. R. Co. (Ga., 1893), 17 S. E Rep. 649. 6 People v. Northey, 77 Cal. 618; Vann v. State, 83 Ga. 44. § 335. Leading questions When allowable on direct examination.—The general rule rejecting leading questions as above stated is subject to several important exceptions.1 Thus, if the witness on his direct examination manifest hostility to the party who called him by coloring his testimony to favor his opponent or by an appearance of unwillingness to answer or by attempting to conceal what he knows, he may be asked leading questions.2 Leading questions may be propounded not only to an unwilling witness but to one who is forgetful as well, or who is very young and inexperienced, or who is ignorant of the language, or to one whose memory, while clear as to the main facts of a complicated transaction, 1 Hoody v. Rowell, 17 Pick. 498. In this case the law on this point was thus stated by the chief justice: "The court have no doubt that it is within the discretion of a judge at the trial, under particular circumstances, to permit a leading question to be put to one's own witness; as when he is manifestly reluctant and hostile to the interest of the party calling him, or where he has exhausted his memory, without stating the particulars required, where it is a proper name, or other fact which cannot be significantly pointed to by a general interrogatory, or where the witness is a child of tender years, whose attention can be called to the matter required only by a pointed or leading question. So a judge may, in his discretion, prohibit certain leading questions from being put to an adversary's witness, where the witness shows a strong interest or bias in favor of the crossexamining party, and needs only an intimation to say whatever is most favorable to that party. The witness may have personally concealed such bias in favor of one party to induce the other to call him and make him his witness; or the party calling him may be compelled to do so, to prove some single fact neces sary to his case. This discretionary power to vary the general rule is to be exercised only so far as the purposes of justice plainly require it, and is to be regulated by the circumstances of each case." And see Donell v. Jones, 13 Ala. 490. 2 State v. Tall, 43 Minn. 278; Meixell v. Feezor, 43 Ill. App. 180; Rosenthal v. Bilger (Iowa, 1893), 53 N. W. Rep. 255; McBride v. Wallace, 62 Mich. 451; State v. Bener, 64 Me. 267; Doran v. Mullen, 78 Ill. 342; Navarro v. State, 24 Tex. App. 378, 505; Bradshaw v. Combs, 102 Ill. 428. 3 Born v. Rosenow (Wis., 1893), 54 N. W. Rep. 1089; King v. Railroad Co., 26 N. Y. S. 973; Graves v. Merchants', etc. Bank (Iowa, 1891), 49 N. W. Rep. 65; St. Paul F. & M. Ins. Co. v. Gothell, 35 Neb. 351. 4 Palson v. State (Ind., 1893), 35 N. E. Rep. 907; Proper v. State (Wis., 1893), 53 N. W. Rep. 1035. Thus in a prosecution for committing a rape on a child the state was allowed to ask the prosecuting witness, "Do you know that boy over there?" pointing to the accused party. Paschal v. State, 89 Ga. 303; 15 S. E. Rep. 322. 5 Navarro v. State, 24 Tex. 378; 6 S. W. Rep. 542. is weak and undecided as regards the minor facts, items or dates which go to compose it.1 In that portion of the direct examination which is merely introductory, leading questions are allowed, as where counsel are permitted, instead of asking a witness what was said, to ask him whether particular statements or communications were made in his hearing, for the purpose of contradicting another witness who had previously testified that they were not made. So, for the sole purpose of refreshing the memory of one's own witness, counsel may ask him on his direct examiination if he did not at a prior date state certain facts which are not consistent with his present statements. So where the memory of the witness is faint, the party may question him upon unimportant and irrelevant but suggestive facts, or may ask the witness what was his uniform habit or routine of acting in connection with certain transactions, if the evidence of the unimportant fact or the business routine will suggest to the memory of the witness a relevant fact which has been forgotten by him. The witness may also be asked if he mentioned a fact which he has himself forgotten to another person, and if he replies affirmatively the other person is competent to testify to such a fact. And if a witness is questioned as to names which he has forgotten, a list of names may be read over to him for the purpose of refreshing his memory.9 1 A witness who on direct examination denies all knowledge of the facts which she is called to prove, but subsequently admits she suppressed the truth, may be recalled, on motion, though the party has rested his case. Her evidence may then be regarded as newly discovered. Rice v. Rice (N. J., 1892), 23 Atl. Rep. 946. If a witness profess ignorance of a transaction he cannot be required to inform himself thereon for the purpose of answering a question, nor does the court err in refusing to direct him to do so. People v. Ching, 78 Cal. 389. 2 Paschal v. State, 15 S. E. Rep. 522; 89 Ga. 303; Shultz v. State, 5 Tex. App. 390: Lowe v. Lowe, 40 Iowa, 220. 3 Farmers' Mut. Fire Ins. Co. v. Bair, 87 Pa. St. 124; Cannon v. People (Ill., 1892), 30 N. E. Rep. 1027; Union Pac. Ry. Co. v. O'Brien, 49 Fed. Rep. 538; 4 U. S. App. 221; 1 C. C. A. 354. See post, § 350. 4 State v. Cummins, 76 Iowa, 133; 40 N. W. Rep. 124. Cf. Avery v. Mattice, 9 N. Y. S. 166. 5 Prentiss v. Bates, 88 Mich. 567; O'Hogan v. Dillon, 76 N. Y. 170. 6 People v. Oyer & T., 83 N. Y. 436; Morrow v. Ostrander, 13 Hun, 219. 7 Abb. Brief on Facts, § 393. 8 Shear v. Van Dyke, 10 Hun, 528; Green v. Cawthorn, 4 Dev. (N. C.) 409; Abb. Brief on Facts, § 397; Whart. Crim. Ev., § 360. 9 Aceno v. Petroni, 1 Stark. 100. 5 § 336. Responsiveness of answers. The questions which are put to a witness should be neither vague nor ambiguous,1 and his replies thereto should be responsive, stating all the facts called for, and no more, without any expression of his opinion or his conjectures. If a witness simply adopts the answer of another witness preceding him, or if his answer is irresponsive so that it wholly or partially fails to convey the information which is required, it may be stricken out on motion, so far as it is irresponsive; and a refusal by the court to do so, if the objection is promptly made, would be reversible error. The court may, without abusing its discretion, instruct a witness to answer a question responsively where he persists in giving an evasive answer; and whether an answer is responsive is for the court to determine. An answer which is not only not responsive, but abusive to the adverse party or to his counsel, to such an extent that it is calculated to create prejudice in the minds of the jurors, should be stricken out on motion of the party injured, even where it was given in reply to an irrelevant question.9 1 Hill v. State (Tenn., 1892), 19 S. W. Rep. 674; Mann v. State, 23 Fla. 610; Bassett v. Shares, 63 Conn. 39; 27 Atl. Rep. 431. 2 While a witness may state all the circumstances which are necessarily involved in the answer required, he should not be allowed to go beyond this. So, where a witness was asked to state a conversation he had with a certain person, and while doing so stated that a third person who was present was crying, his answer is to that extent irresponsive. Pence v. Waugh (Ind., 1893), 34 N. E. Rep. 860. v. N. Y. El. R. Co., 18 N. Y. S. 865; 5 Benjamin v. N. Y. El. R. Co., 63 Hun, 629; 17 N. Y. S. 608; Pence v. Waugh (Ind., 1893), 34 N. E. Rep. 860. 6 Chicago, etc. Co. v. Woodward, 47 Kan. 191. The answer thus stricken out is wholly withdrawn from the consideration of the jury, nor is it the duty of the court, in its charge, to caution them to disregard it. State v. McGahey (N. D., 1893), 55 N. W. Rep. 753; Hillesum v. City 3 Eddy v. Lowry (Tex., 1894), 24 of New York, 4 N. Y. S. 506. S. W. Rep. 1076. Baldwin v. Walker, 94 Ala. 314; 10 S. Rep. 891; Colclough v. Niland, 68 Wis. 309; Harnickell v. Copper Mining Co., 5 N. Y. S. 112; Kennedy v. Upshaw, 66 Tex. 442; Link v. Sheldon, 18 N. Y. S. 815; 64 Hun, 632; Lazard v. Mer. & Min. Co., (Md., 1893), 26 Atl. Rep. 797; Bischof 7 State v. Farley (Iowa, 1893), 53 N. W. Rep. 1089. 8 Galveston, etc. Co. v. Wesch (Tex., 1893), 21 S. W. Rep. 62; Van Doren v. Jelliffe, 20 N. Y. S. 636. 9 Galveston, H. & S. A. R. Co. v. Smith (Tex., 1894), 24 S. W. Rep. 668. In this case the plaintiff suing to recover for lost baggage replied |