therefore it is a sound and established rule, that, on the examination in chief, leading questions must not be asked. Heard, Crim. Law, p. 209.

It is matter of discretion with the court before whom a trial is had, whether they will or will not compel counsel to disclose what they expect to prove by a witness, before he is examined in chief. Where the case is one of delicacy and importance, and the evidence is nicely balanced, and the scale is liable to be affected by slight circumstances, courts are vigilant in preventing any extraneous or irrelevant matter from being brought before the jury. In such cases counsel will be required to state the substance of what they expect to prove, in order that, if irrelevant or improper, the evidence may not be given; when the lines of the case are more broadly marked, less caution is necessary as the rights of the parties may be sufficiently protected by the court deciding upon the competency or relevancy of the evidence as it falls from the witness. People v. White, 14 Wend. 111.

$216. Rule as to Leading Questions.-Though the rule is, that leading questions may not be put in examination in chief, there are certain exceptions, some allowed as of right, others for convenience sake.

(a) For the purpose of identifying persons or things which have already been described, the attention of the witness may be directly pointed to them.

(b) When a witness is called to contract another, who has sworn to a certain fact, he may be asked in direct terms whether the fact ever took place.

(c) When the witness is, in the opinion of the judge, hostile to the party calling him.

(d) When the witness is unable to answer general questions from defective memory, or the complicated nature of the matter as to which he is interrogated.

Leading questions are also not objected to

(a) When merely introductory, so as to save time.

(b) When the particular matter is not disputed. Thus, where a witness, having deposed to a fact, has not been cross-examined on it, questions may be put which assume that fact. Harris, Crim. Law, p. 355.

The first general rule is, that a party to whom a witness is called, cannot ask him leading questions, that is, questions sug

gesting the answer desired. 1 Phil. Ev. Cowen & Hill's Notes, 268; Chambers v. People, 5 Ill. 355; Williams v. Jarrot, 6 Ill. 130. This rule proceeds upon the supposition that the witness is favorable to the party calling him. Where such is not the fact, and the witness appears to be hostile, the rule is relaxed, and a more searching mode of examination is permitted, partaking of the character of a cross-examination. Starks v. People, 5 Denio, 106; Williams v. Jarrot, supra. Questions of introductory matter, leading and directing the mind and attention of the witness to the main inquiry, and which will not be conclusive upon any of the points in the case, are not liable to the objection of being leading. 1 Phil. & Am. Ev. 888; Williams v. Jarrot, supra. In some cases, however, leading questions are permitted on a direct examination. Thus, where an omission in the testimony of the witness is caused by a want of recollection, which a suggestion may assist, such suggestion is permitted to be made. As, where a witness called to prove a partnership, is not able at the moment to specify the several names of the partners, a number of names, containing the names of the partners among others, may be suggested to him for the assistance of his memory. Stark. N. P. 100; Haines, Treatise, p. 672.

A recent celebrated criminal case reported from California discloses the latitude in which leading questions may be propounded by the trial court. The conviction was for murder, and wife murder at that, and was based upon circumstantial evidence and the opinion of experts. After the accused had been convicted and sentenced to death, the brother of the deceased wife confessed the crime, exculpated the prisoner and then committed suicide. It would seem, that, during the progress of the trial, the presiding judge became very much dissatisfied with the character of the expert testimony; and the appellate court could see no valid objection to such a proceeding, except that, in form, some of the questions asked were leading and suggestive. Patterson, Justice, says: "If they assumed facts not proved, the attention of the court ought to have been directed to this objection. While it was probably not the duty of the defendant to urge his objections to questions asked by the court with the formality and persistence required when counsel for the prosecution were examining the witness, yet the attention of the court ought to have been called in some manner to the objectionable matters. It is in the

discretion of the court to allow counsel to ask leading questions and there is no reason why the court may not, of its own motion, ask questions in that form." People v. Bowers, 79 Cal. 415.

Leading questions may be put to an unwilling witness, but there is some conflict of authority as to whether if a witness unexpectedly gives testimony adverse to the party calling him, such party may ask him if he has not on another particular occasion made a contrary statement. We think the cases which hold that the witness may be thus cross-examined by the party who called him are supported by the better reasons. Schuster v. State, 80 Wis. 107.

As late as 1892 the New York court of appeals restated its position in reference to leading questions and unanimously held, that the entire subject relating thereto in criminal prosecutions was within the discretion of the trial court. People v. Sherman,

133 N. Y. 349.

The matter of leading questions at any stage of the examination, is so far a matter of discretion that no legal exception will lie to any ruling thereupon. 2 Phil. Ev. 892, et seq.; Sheldon v. Wood, 2 Bosw. 267.

The English rule on cross-examination is that, when a witness has been introduced, sworn and examined as to any material point in the case, the other party may cross-examine him as to the whole case, including any new matter of defense; but the extent to which he may be allowed to press the witness with leading questions will depend upon the circumstances of the case, the demeanor of the witness, his apparent bias and other considerations, and must, to a great extent, be left to the sound discretion of the trial judge. This rule is adopted by several of the American state courts. 1 Thomp. Trials, § 430, citing 2 Phil. Ev. 896-911; Morgan v. Brydges, 2 Stark. 314; Rex v. Brooke, 2 Stark. 472; Webster v. Lee, 5 Mass. 335; Merrill v. Berkshire, 11 Pick. 269; Moody v. Rowell, 17 Pick. 490, 28 Am. Dec. 317; Blackington v. Johnson, 126 Mass. 21; Beal v. Nichols, 2 Gray, 262; Varick. v. Jackson, 2 Wend. 166, 19 Am. Dec. 571; Fulton v. Stafford, 2 Wend. 483; Linsley v. Lovely, 26 Vt. 123; Legg v. Drake, 1 Ohio St. 286; Page v. Kankey, 6 Mo. 433; Brown v. Burrus, 8 Mo. 26; St. Louis & I. M. R. Co. v. Silver, 56 Mo. 265; State v. Sayres, 58 Mo. 585; Knapp v. Schneider, 24 Wis. 70; Durnford v. Clark, 1 Mart. O. S. 202; Davidson v. DeLallande, 12 La. Ann. 826; Nicholson v. Desobry, 14 La. Ann. 81; King v. At

kins, 33 La. Ann. 1057; Kibler v. McIlwaine, 16 S. C. 551; Clinton v. McKenzie, 5 Strobh. L. 36; Kelly v. Brooks, 25 Ala. 523; Fralick v. Presley, 29 Ala. 457, 65 Am. Dec. 413.

§ 217. No Material Fact in Issue can be Assumed on Examination. It is no objection to the form of a question put to a witness that it assumes facts which are not disputed. The rules of law which govern in the examination of witnesses as effectually prohibit counsel from assuming, in their questions, any facts which are material to the point of inquiry, but which are to be ultimately found by the jury, as other rules of law forbid the presiding judge from assuming such facts in his instructions to the jury. In the former case the reason of such rules does not rest merely upon the consideration that such assumption of facts might mislead the witnesses, but upon the liability of such assumption or assertion of facts by counsel becoming a substitute in the minds of the jurors for evidence, and thus calculated to mislead them. In the latter case the reason is the same, with the further reason that the assumption by the court, in its instructions to the jury, of material facts to be found by them, is regarded as an invasion by the court of the peculiar province of the jury. The rules in the former case are so rigidly maintained that they will not permit counsel, even upon cross-examination and when leading questions may be put, to assume any material facts in issue and which are to be found by the jury, or to assume that particular answers have been given contrary to the fact. Haish v. Munday, 12 Ill. App. 539.

§ 218. Nature and Scope of the Rebuttal Evidence in Criminal Cases.-The rule is well settled that in rebuttal the people are restricted to evidence controverting the facts proven by the evidence of the defense; and that no evidence confirmatory of the original case can be introduced by way of rebuttal, even though it clearly establishes the prisoner's guilt. McLeod's Trial, pamph. p. 222; Rex v. Hilditch, 5 Car. & P. 299; Rex v. Stimpson, 2 Car. & P. 415; Brown v. Giles, 1 Car. & P. 118, 2 Phil. Ev. note 500.

The cases seemingly contra (Rex v. Voke, Russ. & R. 531; Roscoe, Crim. Ev. (6 Am. ed.) 88) have been overruled by later cases, and the recent rule now well settled is, where two offenses of a different grade of felony have been committed by a prisoner who stands charged only with the commission of the latter and greater, the

evidence must be restricted to proof of the last offense. Proof of any one crime cannot be introduced to support the charge of another. Reg. v. Oddy, 2 Den. C. C. 268, 273; Barton v. State, 18 Ohio, 221; Cole v. Com. 5 Gratt. 696; Com. v. Call, 21 Pick. 515; Baker v. State, 4 Ark. 56; Dunn v. State, 2 Ark. 229; Rex v. Whiley, 2 Leach, C. C. 983; LaBeau v. People, 34 N. Y. 223; Friery v. People, 2 Keyes, 424.

No rule for the conduct of a trial is more familiar than that the party holding the affirmative is bound to introduce all the evidence on his side before he closes. Hastings v. Palmer, 20 Wend. 225. He must exhaust all his testimony in support of the issue on his side before the testimony on the opposite side has been heard. Ford v. Niles, 1 Hill, 301; Rex v. Stimpson, 2 Car. & P. 415. He can afterwards introduce evidence in rebuttal only. Rebutting evidence in such cases means not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove. Silverman v. Foreman, 3 E. D. Smith, 322; Rex v. Stimpson, supra. These rules may, in special cases, be departed from in the discretion of the trial judge, but a refusal to depart from them is no ground of exception. Marshall v. Davies, 78 N. Y. 414.

"I must say that so much averse am I to withholding testimony, that I can hardly conceive of a case so gross and palpable that I should feel constrained to control the discretion of the circuit judge from receiving at any time additional affirmatory, cumulative and corroborative evidence of facts previously proved, or which tends to strengthen and add force or probability to such evidence." Lumpkin, J., in Walker v. Walker, 14 Ga. 242, 250.

So largely is the admission or exclusion of evidence not strictly in rebuttal a discretionary matter with the court that we are justified in formulating a general rule to the effect that material testimony in a case should be admitted at any time, before the formal submission of the case to the consideration of the jury. The presiding judge in the exercise of this discretion has absolute immunity from all review unless it should clearly appear that there was a willful abuse of the discretion confided to him. course where important testimony is withheld with the obvious purpose of placing either party to a disadvantage the trial court

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