PART III. — EXAMINATION. CHAPTER XVII. IN GENERAL. § 229. Discretionary Powers of the Court. § 230. The Order of Examination. § 231. Notice of Intention to examine a Witness. § 229. Discretionary Powers of the Court. The whole subject of the viva voce examination of witnesses in open court, is confided, of necessity, to a very great extent, to the sound judicial discretion of the judge presiding at the trial; and but few positive and unbending rules have been laid down with regard to it. The controlling object being simply to elicit the truth from the witness, it would seem to the layman's mind a simple matter to formulate rules and regulations to that end, and which could rarely fail to accomplish it; "but the character, intelligence, moral courage, bias, memory, and other circumstances of witnesses are so various, as' to require almost equal variety in the manner of interrogation, and the degree of its intensity, to attain that end." Therefore much is left to the discretion of the judge, the exercise of which discretion is, in general, not the subject of review, even by an appellate court, except where its abuse can be shown to the prejudice of the party complaining. We are speaking now of the control of the court over the manner and extent of an examination of a witness, not of rulings on the admissibility of testimony. The propriety of the latter is tested by rules of evidence, with which we are not now concerned.2 1 1 Greenl. Ev. § 431. 2 The entire head of the examination of witnesses introduces to a set of general rules which have grown out of the practice at nisi prius, but which must necessarily be so often applied or relaxed, according to circumstances apparent to no one except the presiding judge, that a strict uniformity at all times is not to be ex § 230. The Order of Examination. When a witness has been regularly sworn,' he is first examined by the party calling him to testify; this is called the direct examination, or examination-in-chief. When the direct examination is finished, the adverse party is at liberty to cross-examine;3 after which the party calling the witness may re-examine him.4 This usually closes the examination of the witness, though in many cases, the adverse party is permitted to re-cross-examine at the close of the re-examination; but this is no more than a further cross-examination, permitted either because new matter is brought out in the re-examination, or because the judge, in his discretion, sees proper, under the circumstances, to allow it. The office of the examination-in-chief is to lay before the court and jury the whole of the information of the witness that is relevant and material; that of the cross-examination is to search and sift, to correct, and supply omissions; that of the re-examination, to explain, to rectify, and put in order.5 § 231. Notice of Intention to Examine a Witness. In the New York chancery practice, where a party wished to examine witnesses, he had to furnish a list of them to the examiner in advance of the hearing; and under the former code practice in that State, notice was required of the intended examination of the assignor of a chose in action, in certain cases. But in modern practice, a party to a civil action cannot be required to give notice to his adversary of what witnesses he will rely upon at the trial. In criminal cases, however, the rule is that the prosecution must indorse on the indictment or information a list of the witnesses who are to be examined on behalf of the government, but it would seem that the prosecutor need not call all the witnesses whose names ap pected, and indeed, in some instances, 2 See infra, Chap. XVIII. 6 Powell v. Tuttle, 10 Paige (N. Y.) 522. 7 Vassaer . Livingston, 13 N. Y. 248; Bidwell v. Astor Mutual Ins. Co. 16 Id. 263. 8 Thurmon v. Trammell, 28 Tex. 371. |