also Doncaster v. Day, 3 Taunt. 262; Glass v. Beach, 5 Vt. 172; Leightner v. Wilke, 4 Serg. & R. 203; Sheriden v. Smith, 2 Hill, 538. $226. Summary of the Views here Ştated.-The most critical analysis of the entire topic relating to the examination of witnesses fails to disturb the well recognized principle that accords to the trial court a wide discretion in dealing with the subject. The number of witnesses sworn to prove a given fact, the extent of their examination, the order of the proof, the latitude indulged as to leading questions, the scope of the crossexamination, together with many other essentials connected with the trial of a criminal case combined to place within the control of the presiding judge many functions that tend to neutralize all set formulas regarding the subject. Especially is this true of criminal prosecutions where life and liberty are at stake, the previous analysis has shown that at every stage of the trial, evidence relevant to the issues will be admitted, at least on the part of the defendant. No arbitrary rules relating to direct, re-direct, rebutting or surrebutting evidence will be allowed to infringe the great constitutional right of personal liberty and the American juries are substantially a unit in recognizing the constant presence of that indefinable thing familiarly known and previously referred to as the "discretion of the court." Now it is familiar law carrying its own pregnant commentary that a discretionary order or ruling will not be disturbed by an appellate tribunal except for gross and palpable abuse. Is it not obvious, then, that any attempt to fetter a criminal trial by the dogmatic assertion of rules as to the examination of witnesses is a sheer dissipation of energy? It is with this theory well in mind that we find our warrant for cautioning the practitioner against too great a reliance upon technique in criminal prosecution. CHAPTER XXXII. IMPEACHMENT OF WITNESSES. § 227. General Rules Relating to. 228. Great Latitude Allowed in Cross-examination. 229. To What the Attention of the Witness should be Called. 230. California Code Provisions on the Subject. 231. When the Impeachment is Effected. 232. Importance of Impeaching Testimony. 233. Partial Review of the Decisions. 234. When Party may Contradict his own Witness. 235. Statement of the New York Rule. 236. Inconsistent Statements may be Shoon. 237. Discrediting Party's own Witness on Ground of Surprise. 238. Party may Impeach a Witness he is Compelled to Call. 239. Specific Acts of Immorality cannot be Shown. 240. An Examination of Authorities. 241. When Declarations Made out of Court are Admissible. 242. Interpreter may be Impeached. 227. General Rules Relating to.-In regard to the impeachment of witnesses, I will first refer to the earnest contention so familiar to the annals of our criminal courts, that inquiries as to particular acts are incompetent; and that impeachment can be accomplished only by evidence of the general reputation for truth and veracity. As a corollary to this first contention it is claimed that such evidence cannot be admitted under any circumstances without first inquiring of the witness sought to be thus impeached, whether the fact was true or not. The general rule that a witness cannot be impeached by contradicting him as to collateral matters, is well understood. But it has been held, that the feelings of a witness, and his disposition to tell or conceal the truth in the particular suit in which he is called, are not collateral within the meaning of this rule. And he may therefore be impeached by showing that he has attempted to procure another witness to give false evidence in the same suit. Folsom v. Brawn, 25 N. H. 122; Martin v. Farnham, 25 N. H. 199; Atwood v. Welton, 7 Conn.70; Morgan v. Frees, 15 Barb. 352; Queen's Case, 2 Brod. & B. 251. If such evidence is admissible to impeach an ordinary witness it would more clearly be admissible against a party to the suit. An attempt by a party to sustain his claim in court by procuring a witness to commit perjury in support of it, would fairly warrant an inference that his claim was not founded in truth. And it must have been upon this principle that in State v. Rohfrischt, 12 La. Ann. 382, the prosecution was allowed to prove that the defendant had attempted to bribe one of the witnesses of the state to swear falsely. Such acts by a party would seem fairly admissible as circumstantial evidence which the jury are entitled to consider. But where such evidence is admitted merely for the purpose of impeachment, it is perhaps the established rule, that the witness sought to be thus impeached must first be interrogated as to the fact. It was so held in the Queen's Case, above cited; and such is the general current of authority in this country, though there are cases where the rule has been denied. But in that case the reason of the rule was stated to be, that the witness might have an opportunity to explain. The Chief Justice said: "And it is in our opinion of great importance that this opportunity should be thus offered, not only for the purpose already mentioned, but because if not given in the first instance it may be wholly lost; for a witness who has been examined, and has no reason to suppose that his further attendance is requisite, often departs the court and may not be found or brought back until the trial be at an end." This shows, perhaps, a good reason for the rule. But where the reason fails, the rule fails also. Martineau v. May, 18 Wis. 59. § 228. Great Latitude Allowed in Cross-examination.— It is abundantly settled that in criminal prosecutions the rules of evidence accord to the cross-examiner great latitude in any attempt to impeach the character of the witness. In a very recent case the witness was asked: "Are you a prostitute?" Even if the witness claimed a privilege, the question should have been allowed. 1 Greenl. Ev. (4th ed.) § 445; Stark. Ev. 170; Hall v. State, 40 Ala. 699; Com. v. Shaw, 4 Cush. 594, 50 Am. Dec. 813. All the authorities hold that such a privilege, if any, is purely personal with the witness, and may be waived by the witness if he does not claim it himself. 1 Thomp. Trials, § 307; 1 Greenl. Ev. §451; Whart. Crim. Ev. § 465; Clark v. Reese, 35 Cal. 89; Short v. State, 4 Harr. (Del.) 568; Sodusky v. McGee, 5 J. J. Marsh. 621; State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688; Roddy v. Finnegan, 43 Md. 490; State v. Bilansky, 3 Minn. 246; Newcomb v. State, 37 Miss. 383; Fries v. Brugler, 12 N. J. L. 91, 21 Am. Dec. 52; Pickard v. Collins, 23 Barb. 444; Southard v. Rexford, 6 Cow. 255. The foregoing authorities are ample warrant for the formula that, upon cross-examination, a witness may be asked any question which tends to test his accuracy or credibility or to impair his credit by compromising his character, but the extent to which such examination shall be allowed is in the discretion of the court. But it is well settled that evidence of the good character of a party is not relevant in a civil action, or of a witness in an action, until evidence of the bad character of such party or witness may be given, or unless the issue involves the reputation of the party. § 229. To What the Attention of the Witness should be Called. It has been proper at all times to discredit a witness by proof of contradictory statements as to a material matter; but it could not be done until he had been cross-examined as to the supposed contradiction in such a manner as to direct his attention to the matter assumed. The rule which prescribes this condition rests on the principle of justice to the witness. The tendency of the evidence was to impeach his veracity, and common justice demands that before his credit is attacked he should have an opportunity to declare whether he made such statements to the person indicted, and to explain what he said, and what he intended and meant in saying it. When this opportunity has been afforded him, justice can demand in his behalf nothing more, and the reason of the rule is satisfied. If he neither admits nor denies the statement, can it be proven? The decisions of the English courts upon this question are conflicting. If the matter is irrelevant, the proof of contradictory statements is certainly inadmissible; but if it is relevant, the weight of the English authorities favor their admission. 2 Phil. Ev. 960. This rule is sustained by American cases. Payne v. State, 60 Ala. 80; Dufresne v. Weise, 46 Wis. 290. It is competent for a party on the trial to prove that a witness, on the part of his adversary, has made oral statements inconsistent with evidence upon a material question given by such witness on the trial, for the purpose of impeaching the credibility of a witness, and weakening the force of the evidence. But it is requisite that the party offering the impeaching evidence should first call the attention of the witness to the circumstances under which the statements were made, that he may have an opportunity of correcting the evidence given on the trial, or of explaining the apparent inconsistency between his evidence and his former state ments. The reason of the rule applies as strongly to written as to oral statements made by the witness; and when his evidence is sought to be impeached by written statements, alleged to have been made by him, the writing should be first produced, so that he may have an opportunity for inspection and examination. And as the writing is the best evidence of the statement made by the witness therein, questions as to the contents are not ordinarily admissible. Queen's Case, 2 Brod. & B. 287; Newcomb v. Griswold, 24 N. Y. 298, 2 Phil. Ev. 962; Gaffney v. People, 50 N. Y. 416. § 230. California Code Provisions on the Subject.-The rules as to the impeachment as at present administered, find concise and appropriate expression in the recitals of the California Code: "A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony. A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done, the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. Whenever a writing is shown to a witness it may be inspected by the opposite party, and, if proved by the witness, must be read to the jury before his testimony is closed, or it cannot be read except on recalling the witness." Cal. Code Civ. Proc. §§ 2051, 2052, 2054. See also McDaniel v. Baca, 2 |