'LEGE ; INCRIMINATION.
The court, it is said, decides as to the tendency of the answer, and will instruct the witness as to his privilege ; Com. v. Shaw, 4 Cush. (Mass.) 594, 50 Am. Dec. 813 ; Close v. Olney, 1 Denio (N. Y.) 319. It has been held that the question whether an an swer would have this tendency is to be de termined by the oath of the witness ; 17 Jur. 393. And in point of fact, from the neces sity of the case, it is a matter which the wit ness may be said practically to decide for himself. The witness may answer if he chooses ; and if be do answer after having been advised of his privileges, he must an swer in full; and his answer may he used in evidence against him for all purposes ; People v. Mather, 4 Wend. (N. Y.) 252, 21 Am. Dec. 122 ; Foster v. Pierce, 11 Cush. (Mass.) 437, 59 Am. Dec. 152 ; Chamberlain v. Willson, 12 Vt. 491, 36 Am. Dec. 356. It is held that a defendant who voluntarily offers himself as a witness on his own behalf waives this privilege of refusing to answer a question because it may tend to criminate him ; State v. Thomas; 98 N. C. 599, 4 S. E. 518, 2 Am. St. Rep. 351. The objection that the answer may tend to criminate can only be made by the witness himself ; Lothrop v. Roberts, 16 Colo. 250, 27 Pac. 698.
Whether a witness be compellable to an swer to his own degradation or infamy is a point as to which some distinctions are to be taken ; a witness cannot refuse to testify simply because his answer would tend to disgrace him ; it must be seen to have that effect certainly and directly ; 1 Greenl. Ev. § 456. He cannot, it would seem, refuse to give testimony which is material and rele vant to the issue, for the reason that it would disgrace him, or expose him to civil liability. A witness is not the sole judge whether a question put to him, if answered, may tend to criminate him. The court must see from the circumstances of the case that there is reasonable ground to apprehend danger to the witness from his being com pelled to answer, in order to excuse him. But if the fact once appear that the witness is in danger, great latitude will be allowed him in judging for himself the effect of any particular question; 26 Ch. Div. 294 ; 1 Mood. & M. 108; People v. Mather, 4 Wend. (N. Y.) 250, 21 Am. Dec. 122 ; State v. Pat terson, 24 N. C. 346, 38 Am. Dec. 699. See In re Taylor, 8 Misc. 159, 28 N. Y. Supp. 500. A witness may, however, be compelled to testify concerning his criminal acts, when prosecution therefor is barred ; Childs v. Merrill, 66 Vt. 302, 29 Atl. 532 ; but only after it is shown affirmatively that no prose cution is pending against him'; Lamson V. Boyden, 160 Ill. 613, 43 N. E. 781.
But it would appear that he may refuse where the question (being one put on cross examination) is not relevant and material, and does not in any way affect the credit of the witness ; 3 Camp. 519 ; Clement v.
Brooks, 13 N. H. 92; Smith v. Castles, 1 Gray (Mass.) 108. Whether a witness, when a question is put on the cross-examination which is not relevant and material to the is sue, yet goes to affect his credit, will be pro tected in refusing to answer, simply on the ground that his answer would have a direct and certain effect to disgrace him, is a mat ter not clearly agreed upon. There is good reason to hold that a witness should be com pelled to answer in such a case ; 1 C. & P. 85 ; 2 Swanst. 216 ; 2 Camp. 637; Respub lica v. Gibbs, 3 Yeates (Pa.) 429. But the whole matter is one that is largely subject to the discretion of the courts ; 1 Greenl. Ev. §§ 431, 449.
There seems no doubt that a witness is in no case competent to allege his own turpi tude, or to give evidence which involves his own infamy or impeaches his most solemn acts, if he be otherwise qualified to testify ; Stark. Ev. 1737.
As to the protection to witnesses against self-incrimination, see INCRIMINATION ; PRO DUCTION OF DOCUMENTS; SEARCH.
The course of examination is, first, a di rect examination by the party producing the witness ; then, if desired, a cross-examina tion by the adverse party, and a re-examina tion by the party producing ; 1 Starkie, Ev. 123, 129. As to the direct examination, the general rule is that leading questions, i. e. such as suggest the answer expected or de sired, cannot be put to a witness by the par ty producing him. But this rule has some reasonable exceptions ; 1 Greenl. Ev. § 434. See St. Paul F. & M. Ins. Co. v. Gotthelf, 35 Neb. 351, 53 N. W. 137 ; Huntsville B. L. & M. S. Ry. Co. v. Corpening, 97 Ala. 681, 12 South. 295 ; as, where a witness is hostile, leading questions are proper ; Meixsell v. Feezor, 43 111. App. 180; McBride v. Wal lace, 62 Mich. 451, 29 N. W. 75; also when the answers of a witness have taken by sur prise the party calling him; St. Clair v. U. S., 154 U. S. 134, 14 Sup. Ct. 1002, 38 L. Ed. 936. A court of error will not reverse be cause a leading question was allowed; Farmers' Mut. F. Ins. Co. v. Blair, 87 Pa. 124 ; Weber Wagon Co. v. Kehl, 139 Ill. 644, 29 N. E: 714 ; Van Doren v. Jelliffe, 1 Misc. 354, 20 N. Y. Supp. 636 ; contra, Coon v. People, 99 Ill. 368, 39 Am. Rep. 28. As the allowance of leading questions is largely in the discretion of the trial judge, the appel late court will reverse for such cause only where there has been an abuse of discretion ; Badder v. Keefer, 91 Mich. 611, 52 N. W. 60. See King v. R. Co., 75 Hun, 17, 26 N. Y. Supp. 973; Proper v. State, 85 Wis. 615, 55 N. W. 1035; St. Clair v. U. S., 154 U. S. 134, 14 Sup. Ct. 1002, 38 L. Ed. 936; State v. Pugsley, 75 Ia. 742, 38 N. W. 498. See LEAD ING QUESTION.