The opinion of the trial judge as to wheth er a witness is hostile is conclusive; 5 C. B. (N. S.) 786 ; 16 Q. B. D. 681; where Cole ridge, C. J., refused to look at an affidavit made by a witness to show that he was hos tile, being of opinion that there was nothing in his demeanor or the way he gave his evi dence to show that be was hostile, and this view was affirmed by full bench, on motion for new trial.
A report of an employe to his master may be called for to impeach the employer as wit ness; Freel v. Ry. Co., 97 Cal. 40, 31 Pac. 730.
The credit of an adversary's witness may be impeached by cross-examination, or by general evidence affecting his reputation for veracity (but not by evidence of particular facts which otherwise are irrelevant and im material), and by evidence of his having said or done something before which is inconsist ent with his evidence at the trial. Also, of course, he may be contradicted by other tes timony; 1 Greent Ey. § 401. But he cannot be contradicted as to collateral and irrele vant matter on which he was cross-examined; Kuhns v. Ry. Co., 76 Ia. 67, 40 N. W. 92; Atchison, T. & S. F. R. Co. v. Townsend, 39 Kan. 115, 17 Pac. 804; State v. Ballard, 97 N. C. 443, 1 S. E. 685; Jones v. Lumber Co., 58 Ark. 125, 23 W. 679. In some states evidence may be given of a witness' general reputation (q. v.); People v. Mather, 4 Wend. (N. Y.) 257, 21 Am. Dec. 122; State v. Bos well, .13 N. C. 209 ; State v. Raven, 115 Mo. 419, 22 S. W. 376. But the testimony of a witness cannot be impeached by evidence of particular crimes ; Lowery v. State, 98 Ala. 45, 13 South. 498 ; nor can a woman be im peached by evidence of her lack of chastity ; People v. Mills, 94 Mich. 630, 54 N. W. 488.
See IMPEACHMENT.
In order to test a witness' accuracy, ve racity, or credibility, be may be cross-exam ined as to "his relations to either of the par ties or the subject-matter in dispute; his interest, his motives, his way of life, his associations, his habits, his prejudices, his physical defects and infirmities, his mental idiosyncrasies, if they affect his capacity; his means of knowledge and powers of dis cernment, memory, and description—may all be revelant." May's Steph. Ev. art. 129. But it has been said that questions other wise irrelevant cannot be asked for the pur pose of testing his moral sense; Com. v. Shaw, 4 Cush. (Mass.) 593. He cannot be
discredited by asking him if he has not been impeached as a witness upon the trial of another action; Cockrill v. Hall, 76 Cal. 192, 18 Pac. 318.
The essence of the right to refresh the memory of a witness by reference to a writ ing is that the matter so used be contempo raneous with the occurrence testified to ; Put nam v. U. S., 162 U. S. 687, 16 Sup. Ct. 923, 40 L. Ed. 1118; Maxwell v. Wilkinson, 113 U. S. 656, 5 Sup. Ct. 691, 28 L. Ed. 1037, in both of which the cases are collected. In the case first cited, a report of testimony given four months after the occurrence was not so contemporaneous and could not be used. In this case the exception, held by some courts to exist in the case of surprise to the party calling the witness, is discussed at length and the authorities critically ex amined and the exception disapproved. See note on use of paper, to refresh memory ; Republic F. Ins. Co. v. Weide, 14 Wall. (U. S.) 375, 20 L. Ed. 894. See MEMORANDUM.
Generally, where proof is to be offered that a witness has said or done something incon sistent with his evidence, a foundation must first be laid.
See CROSS-EXAMINATION.
In England and Massachusetts, by statute, the same course may be taken with a witness on his examination in chief, if the judge is of opinion that he is hostile to the party by whom he was called, and permits the ques tion. Apart from statute such evidence has not generally been considered as admissible; May's Steph. Ev. art. 131; Coulter v. Ex press Co., 56 N. Y. 585 ; People v. Jacobs, 49 Cal. 384; if the sole effect is to discredit; but if the purpose be to show the witness he is in error, it is admissible; .15 Ad. & E. 378; Bullard v. Pearsall, 53 N. Y. 230.
Proof of declarations made by a witness out of court in corroboration of the testimony given by him at the trial is, as a general rule, inadmissible. See Fallin v. State, 83 Ala. 5, 3 South. 525; Thurmond v. State, 27 Tex. App. 347, 11 S. W. 451. But when a witness is charged with having been actuated by some motive prompting him to a false state ment, or with having fabricated his story, it may be shown that he made similar state ments before any such motive existed ; Con rad v. Griffey, 11 How. (U. S.) 480, 13 L. Ed. 779; Barkly v. Copeland, 74 Cal. 1, 15 Pac. 307, 5 Am. St. Rep. 413. See State v. Rowe, 98 N. C. 629, 4 S. E. 506.