burden is upon him to bring the case within its purview. He must make it appear, if it does not otherwise appear, that the information which he seeks to exclude was such as the witness acquired in attending the patient in a professional capacity not only, but he must also show that it was such as was necessary to enable him to act in that capacity. Edington v. Ætna L. Ins. Co. 77 N. Y. 564. The object of the statute is plainly this, that persons may feel sure that whatever they disclose to a physician, in his professional capacity, in regard to the bodily condition, whether it be by word or by allowing a physical examination, shall be held sacred. It matters not whether the patient or some one else pays the doctor's bill, or whether it is ever paid at all. And it matters not whether the patient visits the physician to relieve his own anxiety, or to relieve that of some friend. The information which he thus enables the physician to acquire is protected. Nor does it make any difference that no prescription is made. Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 281, 36 Am. Rep. 617. 210. The Privilege of Clergymen.-"A clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs." N. Y. Code Civ. Proc. § $33. This rule very generally obtains both in this country and in England. Butler v. Moore, decided in 1802 by the Irish Master of the Rolls (Sir Michael Smith) and cited in McNally's Evidence, 253, 254. See also Broad v. Pitt, 3 Car. & P. 518. The contra view is stated in note 44 of Stephen's Digest of the Law of Evidence. For an extended review of this entire subject see 2 Rice, Civil Evidence, chap. XX. CHAPTER XXXI. THE EXAMINATION OF WITNESSES. § 211. Method Discretionary with the Trial Court. 212. Strict Mode of Procedure Seldom Pursued. 213. Witness must Testify to Facts Within his Knowledge. 214. Examination in Chief-Views of Prominent Text Writers. 215. Object of the Examination in Chief. 216. Rule as to Leading Questions. 217. No Material Fact in Issue can be Assumed on Examination. 218. Nature and Scope of the Rebuttal Evidence in Criminal Cases. 219. The Cross-examination. a. Rule as to Hostile Witnesses. b. Confined to Relevant Facts. c. When Party Makes Witness his Own. d. Rule as to Collateral Matters. e. Duty of the Court to Protect the Witness. f. Cross-examination during Absence of the Accused. h. Views of Sir James Stephen. i. Cause for Remembering Certain Facts. 220. Importance of Cross-examination. 222. When Answer is Conclusive. 223. Cross-examination of Defendant in His Own Behalf. 224. Testimony of Witness since Deceased, Given on Former Trial. 225. Testimony of the Accused on his Preliminary Examination. 226. Summary of the Views here Stated. § 211. Method Discretionary with the Trial Court.Witnesses examined in open court are usually first examined in chief, then cross-examined, and then re-examined. But under modern methods, it is largely a matter of discretion with the court, to what extent the examination shall continue and in what order the evidence shall be produced. Duncan v. McCullough, 4 Serg. & R. 480; Adriance v. Arnot, 31 Mo. 471; Stewart v. People, 23 Mich. 63, 9 Am. Rep. 78; Com. v. Lyden, 113 Mass. 452; Mulhollin v. State, 7 Ind. 646; State v. Scott, 80 N. C. 365; Carney v. State, 79 Ala. 14. cause. § 212. Strict Mode of Procedure Seldom Pursued.-The strict mode of procedure is scarcely ever pursued in active practice. The office of a direct examination, or examination in chief as it is also termed, is to lay before the court and the jury, the whole of the evidence of the witness that is relevant and material. The office of a re-examination is to explain, to rectify and put in order such matters as have been affected by the cross-examination. The examination of a single witness is an illustration of the manner of conducting the examination of all the witnesses in the If the strict rules of examination are followed, the party who produces a witness is bound to ask all material questions on the direct examination, and if this is omitted it cannot be done in reply, for no new question can be put in reply which is not connected with the cross-examination and which does not tend to explain it. Ford v. Niles, 1 Hill, 300; Caldwell v. New Jersey S. B. Co. 47 N. Y. 282; Meyer v. Goedel, 31 How. Pr. 456; Anthony v. Smith, 4 Bosw. 503; Shepard v. Potter, 4 Hill, 202; Hastings v. Palmer, 20 Wend. 225; Leland v. Bennett, 5 Hill, 286; Romertze v. East River Nat. Bank, 2 Sweeny, 82; Seibert v. Allen, 61 Mo. 482; Ober v. Carson, 62 Mo. 209. As a general rule, leading questions are not permitted upon a direct examination (People v. Oyer & Terminer Ct. 83 N. Y. 436, 459, 460); but the rule is relaxed where an omission of the witness's testimony is evidently caused by a want of recollection which a suggestion may assist. Cheeny v. Arnold, 18 Barb. 434. See O'Hagan v. Dillon, 76 N. Y. 170. Or, where the witness is hostile to the party calling him (Williams v. Eldridge, 1 Hill, 249-255; Third Great Western Turnp. R. Co. v. Loomis, 32 N. Y. 127-139; Bradshaw v. Combs, 102 Ill. 428), or very ignorant (Doran v. Mullen, 78 Ill. 342; State v. Benner, 64 Me. 267); and questions, though leading in form, are always competent, when merely intended to direct the attention of the witness to the subject-matter of his testimony. Lowe v. Lowe, 40 Iowa, 220. Where the question asked is of doubtful propriety and yet it is apparent that under a particular view of the case it may be relevant the opposing counsel or the court may demand a statement of what it is proposed to prove and in what way its relevancy to the issue may be shown. Wood v. State, 92 Ind. 269. No witness can be heard except upon oath or affirmation; and upon a trial he can be heard only in the presence and subject to the examination of all the parties, if they so elect. § 213. Witness Must Testify to Facts Within his Knowledge. No principle is better settled than that the belief, thoughts or operation of the mind of a witness are not admissible evidence, as a general rule. He must testify only as to facts within his knowledge, and cannot give evidence outside of this, unless a case is made out where his opinion may be asked. Abbott v. People, 86 N. Y. 460; Gutchess v. Gutchess, 66 Barb. 483; Rich v. Jakway, 18 Barb. 357; Morehouse v. Mathews, 2 N. Y. 514; Gibson v. Williams, 4 Wend. 320. Generally oral evidence must in all cases whatever, be direct; that is to say If it refers to a fact alleged to have been seen, it must be the evidence of a witness who says he saw it; If it refers to a fact alleged to have been heard, it must be the evidence of a witness who says he heard it; If it refers to a fact alleged to have been perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion, or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. Stephen, Dig. art. 62. See Teerpenning v. Corn Exchange Ins. Co. 43 N. Y. 279. Trull v. True, 33 Me. 367. So oral evidence is admissible if the witness swears to a certain fact as true to the "best of his knowledge and belief," or to his "best impression." McLean v. Clark, 47 Ga. 24. As the accuracy of his "impression" is for the determination of the jury. Crowell v. Western Reserve Bank, 3 Ohio St. 406; Duvall v. Darby, 38 Pa. 56. It should be added however in this connection, in regard to this subject of impression, that where they are vague and illusive-not sufficiently defined in or impressed upon the memory to leave a substantial reason as a basis for the testimony, the evidence should be rejected. Humphries v. Parker, 52 Me. 502; State v. Flanders, 38 N. H. 324; Ives v. Hamlin, 5 Cush. 534; People v. Wreden, 59 Cal. 392; Wiggins v. Holley, 11 Ind. 2. $214. Examination in Chief-Views of Prominent Text Writers. After a witness has been regularly sworn, the party who has called him proceeds to examine him in chief; respecting which examination the most important rule is, that the leading questions must not be put to the witness; that is, questions which, being material to any of the points of the issue, plainly suggests to him the answer he is expected to make. But this objection is not allowed to be applied if the question is merely introductory and one which, if answered by "yes" or "no," would not be conclusive on any of the points of the issue; for it is necessary to a certain extent to lead the mind of the witness to the subject of the inquiry. if a witness should appear to be in the interest of the opposite party, or unwilling to give evidence, the court may deem it right to relax the rule against leading questions, and allow the examination in chief to assume something of the form of a cross-examination. It is entirely in the discretion of the judge to determine how far he will allow the examination in chief to be by leading questions. Russell, Crimes, chap. 5, p. 913, 915, § 2. § 215. Object of the Examination in Chief.-The object of the examination in chief is to elicit from the witness all the material facts which tend to prove the case of the party who calls the witness. In such a case, as the presumption and the ordinary fact are that the witness, having been chosen by the party who calls him, is favorable to his cause, and therefore likely to overstate or misstate the circumstances which conduce to establish the party's case, it is a principal rule that— On an examination in chief, a witness must not be asked leading questions. The simple meaning of this rule is, that a party who calls a witness to prove a case must not suggest answers to the witness, nor frame his question in such a manner that the witness by answering merely "yes" or "no," shall give the reply and the evidence which the party wishes to elicit. A question is said to be leading when the words which the witness is expected and required to utter, are put into his mouth, or when it suggests to the witness the answer which the examiner wishes or expects to have; and such a question is inadmissible, because the object of calling witnesses and examining them viva voce in open court is, that the judge and jury may hear them tell their own unvarnished tale of the circumstances which they are called to attest. Such a course would strike radically at the credibility of all oral evidence, and |