cause, it is sought on cross-examination to show that the witness is strongly biased, the party calling him may show that before the relationship existed he made a similar statement to what he has testified to on his direct examination.1 Sometimes it is attempted to impeach a witness as regards particular matters testified to by him by showing that he was silent or that he concealed his knowledge of such facts on a prior occasion when he might naturally have been expected to speak.

That a witness on a second trial recollects a material fact which he did not testify to on the first trial is a suspicious circumstance in itself. The fact that he withheld testimony of that fact, or denied that he possessed any knowledge of it, is never conclusive of the unreliability of his later testimony; for he may be permitted to explain the reasons of his previous denial, silence or real or assumed forgetfulness and ignorance. Thus it may be shown that the occasion of his previous silence was a judicial proceeding at which he was not questioned on the matter at all, or that his prior statements were unintentionally omitted from the record of the first trial; that he actually forgot the facts, or suppressed them through fear, or that his silence or concealment was in good faith and prompted by correct motives."

5

§ 351. Falsus in uno falsus in omnibus. The principle illustrated by the above maxim permits the inference to be drawn that because a witness is guilty of deliberate perjury

Loomis v. New York Cent. & H. R. R. R. Co. (Mass., 1993), 34 N. E. Rep. 82.

Contra, Bell v. State (Tex., 1893), 20 S. W. Rep. 362; Hobbs v. State (Ind., 1893), 32 N. E. Rep. 1019; Davenport v. McKee, 98 N. C. 500; State v. Rowe, 98 N. C. 629; 4 S. E. Rep. 506; Malonee v. Duff, 72 Md. 283; 19 Atl. Rep. 708; State v. McKinney, 111 N. C. 683.

1 State v. Thomason, 1 Jones (N. C.), 274; Thompson v. State, 38 Ind. 89; Hotchkiss v. Gen. Ins. Co., 5 Hun (N. Y.), 101; State v. Flint, 60 Vt. 304; 14 Atl. Rep. 178; Hewitt v. Carey, 150 Mass, 445.

2 Babcock v. People, 13 Colo. 515; State v. Flint, 60 Vt. 304; Territory v. Clayton, 8 Mont. 1; Hyden v. State, 20 S. W. Rep. 764; 31 Tex. Cr. Rep. 401; Bickford v. Menier, 9 N. Y. S. 775; Cowan v. Third Ave. Ry. Co., 9 N. Y. S. 610.

3 United States v. Ford, 33 Fed. Rep. 861.

4 State v. Turner, 15 S. E. Rep. 602: 36 S. C. 534.

People v. Chapleau, 121 N. Y. 266; 24 N. E. Rep. 469.

6 Bruce v. State, 21 S. W. Rep.

602.

in one particular his testimony may be wholly discredited by the jury in other respects. The rule rejecting the evidence of witnesses who had been convicted of an infamous crime is largely based upon this principle, and the effect of the rule may be, according to circumstances, either to demolish the case of the party who is shown to have knowingly and deliberately perpetrated or connived at a falsehood, or its effect may be restricted to the testimony of the single witness guilty of perjury. It is therefore not error for the court to charge that the jury may disbelieve all the evidence of any witness whose evidence as to a material fact is impeached,' though if a false statement is made not wilfully but through misapprehension, inadvertence, mistake or forgetfulness, the entire testimony of the witness should not for this reason be disregarded. But if the jury believe that the witness has wilfully and deliberately sworn falsely on any material point, they have the right, and it may be their duty, to disregard his evidence altogether, except so far as it has been corroborated by other credible evidence or by the facts and circumstances which may be inferable from such evidence.*

1 Seligman v. Rogers (Mo., 1893), 21 S. W. Rep. 94; Clapp v. Bullard, 23 Ill. App. 609.

2 Barney v. Dudley, 40 Kan. 247; Winter v. Cent. Iowa R. Co. (Iowa, 1889), 45 N. W. Rep. 737; Frazer v. State, 19 S. W. Rep. 838; 56 Ark. 242; Spencer v. Dougherty, 23 Ill. App. 399; Plyer v. German Am. Ins. Co., 121 N. Y. 689; Murtaugh v. Murphy, 30 Ill. App. 59.

3 Winter v. Railroad Co., 80 Iowa, 443; Seligman v. Rogers (Mo., 1893), 21 S. W. Rep. 94; Cole v. L. S. & M. S. R. Co. (Mich., 1893), 54 N. W. Rep. 638; Morgenthau v. Walker, 21 N. Y. S. 936; Judge v. Jordan, 81 Iowa, 519; Speight v. State, 80 Ga. 512; Clapp v. Bullard, 23 Ill. App. 609; People v. Petmecky, 99 N. Y. 415; Frazier v. State, 56 Ark. 242; State v. Beaucleigh, 92 Mo. 490; Moett v. People, 85 N. Y. 373; Welke v. Welke, 63 Hun, 625; Jor

dan v. State, 81 Ala. 20; 1 S. Rep. 577; Church v. Chicago, etc. Co. (Mo., 1893), 23 S. W. Rep. 1056; People v. O'Neill, 109 N. Y. 251; 16 N. E. Rep. 68; Dunn v. People, 29 N. Y. 529.

4 Lohr v. People, 132 Ill. 504; Reynolds v. Greenbaum, 80 Ill. 416; City of Sandwich v. Dolan, 31 N. E. Rep. 416; 42 Ill. App. 53; Hillman v. Schwenk, 68 Mich. 293. In The Santissima Trinidad, 7 Wheat. 339, the court, per Story, J., said: "If the circumstances respecting which testimony is discordant be immaterial, and of such a nature that mistakes may easily exist, and be accounted for in a manner consistent with the utmost good faith and probability, there is much reason for indulging the belief that the discrepancies arise from the infirmity of the human mind rather than from deliberate error. But where the party.

Whether or not a witness has been successfully impeached so that his credibility has been destroyed is a question over which the province of the jury or other tribunal having power to determine the facts is exclusive. They are not bound by any rule of law to disregard his evidence wholly, but may take it into consideration for what it is worth, together with all the evidence in the case; for though the witness may have been impeached on some material points, his evidence on others may be credible in itself or may be corroborated by other evidence which is credible.1

§ 352. Evidence of the general reputation of an impeached witness. The direct impeachment of a witness by any of the means which have been above explained creates an issue respecting his general character for truthfulness. Evidence to support this, and to show that he is a person in whose testimony the jury may have confidence, is therefore now relevant.2 But evidence of reputation is not relevant merely because there is a contradiction between adverse witnesses, or because the credibility of a witness is shaken on his cross-examination,* though its admission in such cases may not be reversible error.

speaks to a fact in respect to which he cannot be presumed liable to mistake, as in relation to the country of his birth, or his being in a vessel on a particular voyage, or living in a particular place, if the fact turn out otherwise it is extremely difficult to exempt him from the charge of deliberate falsehood, and the courts under such circumstances are bound, upon principles of law, morality and justice, to apply the maxim falsus in uno falsus in omnibus."

1 Wimer v. Smith (Oreg., 1892), 30 Pac. Rep. 416; Surles v. State, 89 Ga. 167; Lyles v. Com. (Va., 1892), 18 S. E. Rep. 802; Kerr v. Hodge, 39 Ill. App. 546; Cent. W. H. Co. v. Sargent, 40 Ill. App. 438; People v. Wallace, 89 Cal. 158; State v. Patrick (Mo., 1892), 17 S. W. Rep. 666; Howell Lumber Co. v. Campbell (Neb., 1894), 57 N. W. Rep. 383; James v. Mickey, 26 S. C. 270;

Strauss v. Abraham, 32 Fed. Rep. 210; Plyer v. Ger. Am. Ins. Co., 121 N. Y. 689.

2 Clem v. State, 33 Ind. 418; Surles v. State (Ga., 1892), 15 S. E. Rep. 38; State v. Cherry, 63 N. C. 493: Louisville, N. A. etc. Co. v. Frawley, 110 Ind. 26; George v. Pilcher, 28 Gratt. (Va.) 299; Griffith v. State, 26 Tex. App. 157; State v. Jones, 29 S. C. 201; 7 S. E. Rep. 296; Isler v. Dewey, 71 N. C. 14; Hadgo v. Gooden, 13 Ala. 718; Paine v. Tilden, 5 Washb. C. C. 554; Kennedy v. Upshur, 66 Tex. 442; Magee v. People (Ill., 1892), 28 N. E. Rep. 1077.

3 Saussy v. So. Flor. R. Co., 22 Fla. 327; Britt v. State, 21 Tex. App. 215; Diffenderfer v. Scott (Ind., 1893), 32N. E. Rep. 87.

4 Stevenson v. Gunning, 64 Vt. 601. 5 Greene v. State (Tex., 1891), 12 S. W. Rep. 872.

A distinction has sometimes been made by which it has been held that general evidence of the character of the witness for truthfulness is not relevant if he was impeached merely by showing that he had made contradictory statements. This distinction is repudiated by a majority of the decisions which support the proposition that general evidence of the character of the witness as a truthful person is always admissible whenever any attempt, though it may have been unsuccessful, has been made to impeach it; as, for example, where another witness is asked what is his character for truth and replies that it is good.3

§ 353. Privileges of witnesses - Questions disclosing a pecuniary liability.- The question of the privilege of the witness from answering questions during his examination has a twofold aspect, so that the immunity which the witness enjoys may have for its object the protection either of the witness himself or the protection of some other person to whose interests he may be related in a confidential capacity. In the former class of cases, which we must now consider, the privilege is personal to the witness and consequently may be waived by him. It cannot be claimed by either party to the action if the witness chooses to waive it. In the latter class, in which are included confidential communications made to the witness in his professional capacity, the privilege cannot be waived by any one except the person who has made the communications.1

In England at the common law a considerable diversity of opinion existed upon the point whether a witness could claim the privilege of not answering a question which would tend merely to expose him to a civil liability or action or a pecuniary loss. In England and in some of the states the matter was regulated by statute at an early date, while in other states a precisely similar rule has been adopted by the courts, 1 Brown v. Mooers, 6 Gray, 451. Thornsberry (Tex., 1892), 17 S. W. Cf. Harrington v. Lincoln, 4 Gray, Rep. 521. 563, 565.

2 Com. v. Ingraham, 7 Gray, 46; People v. Ah Fat, 48 Cal. 61; Tipton v. State, 17 S. W. Rep. 1097; 30 Tex. App. 530; Galveston, etc. Co. v.

3 Com. v. Ingraham, 7 Gray, 46. 4 See §§ 165-178.

3 Lord Melville's Case, 29 How. St. Trials, 683.

646 Geo. III., ch. 37; 2 N. Y. R. S. 405, § 71.

so that it is now the general rule that no witness is privileged from answering any relevant question solely for the reason that his answer may tend to render him liable to a civil liability or open the door for the prosecution of a civil action against him.'

§ 354. Questions tending to disgrace the witness.- In regard to those questions which merely tend to disgrace the witness in the eyes of those who know him, an important distinction is made by the authorities founded on the nature and relevancy of the fact which is to be elicited. Where the question is put on the direct examination, with the sole object of obtaining evidence of some fact directly relevant, it is not only unjust but absurd to close the mouth of the witness, where the life, the liberty or the most valuable rights of others may depend upon his answer, solely because that answer may disgrace him. The answer which he may give, while it may disgrace him, will not render him liable to punishment for a crime nor subject him to the danger of a civil suit. On the other hand, it may be absolutely necessary in ascertaining the guilt or innocence of a prisoner accused of some heinous crime or to determine pecuniary interests of paramount importance. So a witness will be compelled to give evidence, however much it may humiliate, disgrace or degrade him, to any transaction which forms a part of the matter which is in issue. But where questions tending to disgrace a witness are asked in cross-examining a witness different principles apply. To prevent the multiplication of issues it is not allowable, as we have explained, to interrogate on cross-examination upon wholly irrelevant matters merely for the purpose of subsequently contradicting the witness. Accordingly, if the dis

4

1 Williams v. Butcher, 22 Neb. 683; 37 N. W. Rep. 586; Cox v. Hill, 3 Ohio St. 411; Clark v. Zeigler, 85 Ala. 154; Jones v. Lanier, 2 Dev. (S. C.) L. 480; Durfee v. Knowles, 50 Hun, 601; 2 N. Y. S. 466; Taney v. Kemp, 4 H. & J. 348; Moline Wagon Co. v. Preston, 35 Ill. App. 358; Ward v. Sharp, 15 Vt. 115. Contra, Benjamin v. Hathaway, 3 Conn. 528.

21 Greenl. on Ev., § 454; Phil. & Am. on Ev., pp. 917, 918.

3 People v. Mather, 4 Wend. 250254; Cundell v. Pratt, 1 M. & Malk. 108. See Phil. & Am. on Ev., pp. 917. 918; 2 Phil. Ev. 422.

4 Ex parte Boscowitz, 84 Ala. 463; 4 S. Rep. 279; Johnston Hard. Co. v. Muller, 72 Mich. 265. See cases in note 3.