has a discretion to permit the cross-examiner to probe the witness as to previous prosecutions against him, in no way connected with the case on trial, is a point upon which the adjudged cases are in conflict. The supreme court of California has well said that the mere fact that the defendant in a criminal prosecution offers himself as a witness in his own behalf, does not change or modify the rules of practice with reference to the proper limits of a cross-examination, and does not make him a witness for the state against himself.2 1 That such questions may be put, see People v. Gale, 50 Mich. 237; People v. Hovey, 29 Hun (N. Y.) 382. In People v. Brown (72 N. Y. 571), the question asked on cross-examination was, How many times have you been arrested?" Quare, whether the evidence w was competent as bearing upon the credibility of the witness. This same court went a step further in People v. Crapo (76 N. Y. 288), and distinctly held that the question put to the accused, when testifying upon his trial for burglary and larceny, "Were you also, in 1869, along in February or March, arrested on a charge of bigamy?" was incompetent, and did not legitimately tend to impair the credibility of the witness; and Chief Justice Church, in his opinion, says: "Although the witness did not claim the privilege, the question was incompetent. It did not legitimately tend to impair the credibility of the prisoner as a witness, and was not competent for any purpose. The discretion which courts possess, to permit questions of particular acts to be put to witnesses for the purpose of impairing credibility, should be exercised with great caution, when an accused person is a witness on his own trial. He goes upon the stand under a cloud; he stands charged with a criminal offence not only, but is under the strongest possible temptation to give evidence favorable to himself. His evidence is therefore looked upon with suspicion and distrust, and, if in addition to this, he may be subjected to a cross-examination upon every in cident of his life, and every charge of vice or crime which may have been made against him, and which have no bearing upon the charge for which he is being tried, he may be so prejudiced in the minds of the jury as frequently to induce them to convict upon evidence which otherwise would be deemed insufficient. It is not legitimate to bolster up a weak case by probabilities based upon other transactions. An accused person is required to meet the specific charge made against him, and is not called upon to defend himself against every act of his life." In People v. Johnson (7 Pac. C. L. J. 168), the defendant was asked on cross-examination if he had been previously convicted of a felony, and compelled, against his will, to answer. It was held that the question was proper as going to his credibility as a witness; the court saying that People e. Brown, supra, is not in conflict. But in People v. Iams (57 Cal. 115), a defendant in an indictment for murder, was asked whether any criminal intimacy had existed between himself and the wife of the deceased. And the question was held to be immaterial. 2 People v. McGungill, 41 Cal. 429. This subject of self-criminating testimony, or the privilege to refuse to answer, will be found treated infra, Chap. XXII.; and the consequence of defendant's failure to become a witness, or refusal to answer questions put to him on cross-examination, are pointed out, supra, Chap. IX. § 252. Cross-examination of Accomplices and Persons jointly indicted. Little need be said upon this matter, other than what this chapter already contains, which is equally applicable to the witnesses now under consideration, except that the latitude of cross-examination is especially extended where the witness is an accomplice, in allowing questions having a tendency to shake his credit by injuring his character, or to prove his accuracy or veracity; and in such matters much is left to the enlightened discretion of the court trying the cause, and its action will not be reviewed, unless such discretion appears manifestly to have been abused. Thus, one who turns state's evidence against his alleged associates in crime, under an assurance that his disclosures are not to be used against him, may be cross-examined as to what he told counsel about the offence, while he was himself charged.2 So also the defendant may show on the cross-examination of such a witness, that he had been offered money, and property, and immunity from punishment, if he would testify as he finally testified on behalf of the state; the fact that the offer was made by one having no authority to make it going to the weight and not the competency of the evidence.3 1 Marler v. State, 68 Ala. S. P., Lee v. State, 21 Ohio St. 580. 2 State v. Condry, 5 Jones (N. C.) L. 418. 3 Tullis v. State, 4 Ohio L. J. 12. CHAPTER XX. RE-EXAMINATION, REBUTTAL AND SURREBUTTAL, RECALLING AND RE-EXAMINING. § 253. Re-direct Examination. § 254. Re-cross-examination. § 255. Examination in Rebuttal, or Surrebuttal. § 256. Recalling and Re-examining Witnesses. § 253. Re-direct Examination. The conduct and extent of the re-direct examination (which follows, and is intended to neutralize the effect of the cross-examination) is left very much to the sound discretion of the presiding judge, subject to the general rule that it shall not extend to any new matter unconnected with the cross-examination, and which might have been gone into on the direct examination.1 If the reexaminer wishes to elicit new matter from the witness, he must obtain the permission of the court; and if that permission be refused, he has no ground of exception.2 But if the cross-examiner draws out new matter not inquired about in the examination-in-chief, he makes the witness his own for that purpose, and the opposite party may cross-examine on such new matter; 3 always provided it be material, for a witness cannot be examined directly as to irrelevant matters, though he has been questioned as to them on the previous cross-examination. And it is held that where a witness is examined by both parties respecting a matter irrelevant to the issue, without objection, one party cannot afterwards ob 1 The Queen's Case, 2 Brod. & B. 297; Prince v. Samo, 7 Ad. & E. 627; Donnelly r. State, 2 Dutch (N. J.) 463, 601; Dutton v. Woodman, 9 Cush. (Mass.) 255; State v. Denis, 19 La. Ann. 119; Beal v. Nichols, 2 Gray (Mass.) 262; Commonwealth v. Wilson, 1 Id. 337; Covanhovan v. Hart, 21 Pa. St. 495; Richardson v. Wilkins, 19 Barb. (N. Y.) 510. 262. See also Schaser v. State, 36 Wis. 429. 3 Bassham v. State, 38 Tex. 622. Compare Farmer's &c. Bank v. Young, 36 Iowa, 45. See also Goodman v. Kennedy, 10 Neb. 270. 4 Smith v. Dreer, 3 Whart. (Pa.) 154. But see to the contrary, State v. Witham, 72 Me. 531; Mowry v. Smith, 9 Allen (Mass.) 67; Furbush 2 Beal v. Nichols, 2 Gray (Mass.) v. Goodwin, 5 Fost. (N. H.) 425. ject to the witness' further examination on the same subject.1 Thus, where collateral facts were called out in the cross• examination of a witness, tending to create distrust of his integrity, fidelity, or truth, it was held competent for the adverse party to ask of the witness an explanation which might show the consistency of such facts with his integrity, fidelity, and truth, although circumstances might thus be proved which were foreign to the principal issue, and which, but for such previous cross-examination, would not have been permitted to be proved.2 Again, a party bringing out, on cross-examination, the fact of the existence of a certain instrument, cannot complain of the production of the instrument on the re-direct examination.3 The principal seeming departure from the strict rule, arises in cases where a part of a conversation between the witness and a third person is drawn out on the cross-examination. In such cases, the better opinion seems to be that the re-examiner may demand of the witness all that was said at that conversation, pertaining to the same subject-matter of inquiry. But if the conversation, a part of which is thus detailed on the cross-examination without objection, is a mere hearsay story, this will not authorize the calling out of the rest of it, against objection, on the re-direct examination, upon the claim that it is part of the same conversation." 1 Young v. 551. Mason, 8 Pick. (Mass.) witness he was, had spoken to him on the subject of the suit, and he an 2 United States v. Barrels of High swered that he had, the party calling Wines, 8 Blatchf. (U. S.) 475. him, on re-examination, was allowed to ask what he had said to the witness. Somerville &c. R. R. Co. v. Doughty, 2 Zab. (N. J.) 495. Where a witness is introduced by a party, and is asked as to a particular fact, and the opposite party, on crossexamination, asks him generally if he ever communicated that fact to any one, and to whom, and he answers that he communicated it to the party calling him, this does not entitle the party calling him to inquire as to his own reply and other conversation, at the time. Winchell v. Latham, 6 Cow. (N. Y.) 682. See also People v. Beach, 87 N. Y. 508; Walsh v. Porterfield, 87 Pa. St. 376. 5 Wagner v. People, 30 Mich. 384. The counsel conducting the re-direct examination, may always ask such questions as may be proper to elicit an explanation of the true sense and meaning of the expressions used by the witness on the cross-examination; and the motive by which the witness was induced to use those expressions.1 So he may be questioned with a view to correct his testimony on the cross-examination.2 § 254. Re-cross-examination. -This is no more than a further continuance of the original cross-examination, addressed more particularly to the matter brought out on the re-direct. Its allowance is a matter of discretion with the presiding judge, it not being demandable as a matter of right;3 and no exception lies to a ruling which excludes the further cross-examination of a witness, whose direct and crossexamination have several times been taken up and dropped.1 Thus, where a witness has returned to the stand to correct his testimony upon a single point, there is no error in refusing to permit him to be re-cross-examined, except on that point. The matter is entirely within the discretion of the court below. But it has been held that where, on the reexamination-in-chief of a witness, new matter is brought out, which is neither explanatory of the first, nor in rebuttal of the cross-examination, the opposite party have the right to cross-examine again as to such new matter.6 The gen § 255. Examination in Rebuttal or Surrebuttal. eral rule is, that each party must introduce all the evidence upon which he relies to establish his side of the case, before he rests; then after his adversary closes his evidence, he may give proof in reply or rebuttal. But whether evidence may be given in rebuttal which should and could properly have been offered in chief, is a matter within the discretion. of the court. Whether a witness shall be examined in surre 11 Greenl. Ev. (14 Ed.) § 467; Campbell v. State, 23 Ala. 44. See also Commonwealth v. Wilson, 1 Gray (Mass.) 337. 287. 5 Thornton v. Thornton, 39 Vt. 122. 6 Wood v. McGuire, 17 Ga. 303. 7 Marshall v. Davis, 78 N. Y. 414; State v. Alford, 31 Conn. 40; Strong 2 Gilbert v. Sage, 5 Lans. (N. Y.) v. Connell, 115 Mass. 575; Babcock v. 3 State v. Hoppiss, 5 Ired. (N. C.) L. 406; Thornton v. Thornton, 39 Vt. 122. 4 Commonwealth . Nickerson, 5 Allen (Mass.) 518. Babcock, 46 Mo. 243; Graham v. |