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tendered, and he is so poor as not to be able to go to the trial, this will probably be allowed by the court as a suffi

ent excuse.

If the witness is in custody, the proceedings are differ ent. If in criminal custody, a secretary of state, or any judge of the superior courts, may, on application by affi davit, issue a warrant or order under his hand for bringing up such person to be examined as a witness;(d) or his attendance may be secured by a writ of habeas corpus ad testi. ficandum. If in civil custody, a writ of hab. corp. ad test. is obtained upon motion in court or application to a judge in chambers, founded upon an affidavit stating that he is a material witness. If the evidence of a person in court is required, he is bound to give it, although he has not been subpenaed.

A witness, whether subpenaed or bound over by recogni zance, either to prosecute or give evidence, is privileged from arrest whilst attending the trial on every day of the assizes or sessions until the case is tried; also for a reasonable time before and after trial whilst coming to or returning from the place of trial.

As we have seen, preventing a witness from attending or giving evidence is a contempt of court; and intimidating a witness from giving evidence for the prosecution is a misdemeanor.(e)

(d) 16 and 17 Vict., c. 30, § 9. .(e) v. p. 82.

CHAPTER XVI.

THE EXAMINATION OF WITNESSES.

THIS is a subject on which, though a wide latitude is allowed to counsel, some rules may be laid down as directly authorized, others as developed in and sanctioned by practice.

We have already noticed the general course of the examination of witnesses; (p) namely, that the witnesses for the prosecution are first examined in chief by the counsel for the prosecution, and then cross-examined by the counsel for the defense; and after the case for the prosecution has closed, then the witnesses for the defense are examined by the counsel for the defense, and cross-examined by the counsel for the prosecution; in each case the witness being re-examined by the party calling him, if it is thought desirable. It should also be remembered that the court may, at any time. put such questions as it thinks fit to the witness, even after he has left the witness-box; and that if, after the counsel has finished his examination or crossexamination, he thinks of some other question which ought to have been asked, that question can be put only through or by leave of the court. Through the court, also, are asked questions which occur to the jury.

All the witnesses, whose names are on the back of the indictment, should be called by the counsel for the prosecution; and although he does not ask them any question, or even call them, the defense may have them called, so that they may be subjected to cross-examination. But, in such a case, the counsel for the prosecution may re-examine.(g)

(r.) v. p. 334.

(9) R. v. Edwards, 3 Cox, 82; R. v. Beezlen, 4 C. & P. 220.

When any collusion is suspected among the witnesses, or it is thought that any of them will be influenced by what they hear from counsel or other witnesses, those who have not yet been examined are ordered to leave the court until they are wanted, and after examination they are required to remain in court. The judge will do this, either at his own instance, or on the application of the opposite party. If the order be disobeyed, the witness may be punished as for his contempt; but, though the disobedience will be matter of remark for the jury, the judge has no right to reject his testimony.(r)

At the outset it will be well to ascertain the position of the counsel for the prosecution and for the defense respectively, their functions and conduct, their respective parts, and the spirit in which they should conduct them. It is needless to observe that it is not the object of the counsel for the prosecution to get a conviction at any price. It is his duty to see that the case against the prisoner is brought out in all its strength; but it is not his duty to conceal, or in any way diminish the importance of, its weak points. His function is not to inquire into the truth, but to put forward, with all possible candor and temperance, that part of it which is unfavorable to the prisoner. (s)

On the other hand, the counsel for the prisoner has before him, as his object, the acquittal of the prisoner. His duty is to act as an advocate, and not to any extent as a judge. He is to put himself in the place of the accused, and so is not under any obligations which the accused would not be under. Thus, he is not obliged to divulge facts with which he may be acquainted which are unfavorable to the prisoner.(†)

(r) R. v. Colley, Moo. & M. 329. (s) Fitz. St. 160.

(t) "The counsel for the crown may not use arguments to prove the guilt of the prisoner which he does not himself believe to be just, and he is bound to warn the jury of objections which may diminish the weight of his arguments. In short, as far as regards his own evidence, his speech should as much as possible resemble the summing up of the judge. The counsel for the prisoner may use arguments which he does not believe to be just. It is the business of the jury, after hear ing the judge, to say whether or not they are just."-Fitz. St. 168.

The rules, as to the examination-in-chief and crossexamination, are generally the same, whether the witness be for the prosecution or the defense. They are based upon the supposition that the witness, called and presented by the party examining him, is favorable to his side, and therefore unfavorable to his opponent. If this should turn out not to be the case, the rules of cross-examination apply to the examination of one who thus proves hostile to the party producing him.

Examination-in-chief.-What questions may be put to a witness? In the first place, only such as are relevant to the matter in issue, and which, if answered in the way desired by the examiner, will tend to prove the offense or defense. Of course, if circumstantial evidence is resorted to, greater latitude will be allowed; inasmuch as it is not so easy to estimate the relevancy of the question.

The second great rule is, that leading questions may not be asked in the examination-in-chief. What is a leading question? One which in any way suggests to the witness the answer which the person asking requires. Thus, to ask a witness, "Had the prisoner a white hat on?" would be a leading question; but the question, "What sort of a hat had the prisoner on?" would not be. Unless, indeed, the point to be proved was whether he had or had not a hat on. It is often given as a test whether a question be leading or not, whether it might be answered by "Yes" or "No." But this test is by no means decisive; all questions which may be thus answered not being leading, and other questions than those which may be so answered being equally leading. Thus, the question, "Could the prisoner hear what he said?" is not leading; whereas "What did he do with the purse?" is leading, because it implies that the person to whom it relates dealt with the purse in some way or other.(") 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.

(u) Fitz. St. 280.

(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.(x)

(b.) When a witness is called to contradict another, who has sworn to a certain fact, he may be asked in direct terms whether that 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.(y)

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.

A third general rule is, that the evidence of the witness. must relate to what is immediately within his knowledge and recollection. But there is one exception to this rule. In matters of science, skill, travel, etc., the evidence of experts is allowed that is, persons who have a special knowledge of the branch in question may be called to give their opinion as to the consequences, etc., of facts already proved. For example, if the wounds of a murdered person are described, a surgeon may be asked his opinion as to whether they caused the death; but, of course, it will be for the jury to determine how far they will adopt this opinion.(2) In accordance with the general rule, a witness is not allowed to read his evidence. But he is allowed to refresh his memory by referring to any writing made by himself, or examined by him, soon after the event to which it refers, provided that after he has thus refreshed his memory he can swear to the fact from his own recollection.

A fourth general rule is, that the contents of a writ: n document can not be proved orally if the document is capable

(x) R. v. Watson, 2 Starkie, N. P. C. 128. (y) Best, Ev. 804.

(z) R. v. Wright. R. & R. 456.

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