La Beau agt. The People. out a description of this instrument, in order to understand how, and with what effect, it could be used. If it was proper to describe or name the instrument, it was equally proper to produce and identify it. It is said, that by admitting this evidence, another and distinct offense was proved against the prisoner. But that is admissible in many cases with a view to show vindictive feelings and malicious purposes. (3 Park. Crim. R. 681.) In my opinion, the production and identification of the slung shot, was plainly admissible on the trial. The prisoner's counsel proposed to show on the crossexamination of Mrs. Denny, and also by other witnesses, that she was in the habit of having sexual intercourse with various men, several of whom were named. The testimony of Mrs. Denny was important. Indeed, without it, there could not have been a conviction of the prisoner. It was of the utmost consequence to him, therefore, to impeach her credit. It already distinctly appeared that she was the confederate of the prisoner in the crime for which he was being tried, and that she had lived in adulterous intercourse with him for a long time prior to its commission. In addition to this, the prisoner's counsel proposed to prove that she was in the constant habit of having sexual intercourse with other men. The evidence was objected to as immaterial, and excluded. The evidence proposed to be given by the witness Seguin, was clearly improper for the purpose of general impeachment. This was a collateral issue, and on the trial of it, inquiries as to particular acts of immorality were inadmissible. The reasons are, that it would be impossible for the witness to be prepared for a defense of particular acts, and it would lead to an indefinite number of issues. Therefore, on an issue upon the character of a witness, it cannot be allowed to inquire into particular facts. Witnesses called to general character, may be interrogated as to the reputation and standing of the person whose character is assailed, but they are not allowed to speak of particular instances of vice or immorality. (19 Wend. 569, 580; 14 Wend. 105, 110; 18 Wend. 146; 6 N. La Beau agt. The People. Y. 97.) In the case cited (18 Wend. 146), it was held that a party could not inquire whether the witness had the general reputation of being a thief, prostitute, murderer, adulterer or the like, but that the inquiry must be general in its scope and tendency. (36 Barb. 44.) It seems, therefore, that the offer to prove by the witness Seguin, that Mrs. Denny had lived for several years prior to the poisoning, in adulterous intercourse with him, and with other men, was properly overruled. It is insisted, however, that Mrs. Denny could have been interrogated on cross-examination, in regard to specific acts of immorality, with a view to show her unworthy of credit. The two questions put to her on cross-examination, and excluded, were these: "Were you in the habit of having sexual connection with other men than your husband, before you had carnal connection with La Beau? Were you not in the constant habit of having sexual connection with Lawrence Marney, David La Venture, Charles Seguin and A. Seguin, for the last four years? Undoubtedly, the witness might have refused to answer, on the ground of privilege. This precise point was decided in Lohman agt. The People (1 N. Y. 379, 385.) But the objection to the question was taken by the counsel for the people, and not by the witness, and was placed on the ground of immateriality. Neither the court nor the district attorney had the right to object on the ground of privilege. That objection was personal to the witness. (6 Cow. 254; 1 Denio, 281, 314; 6 Hill, 144; 4 Park. Crim. R. 184.) Were the questions then irrelevant and immaterial? Certainly they were immaterial to the issue of guilt or innocence of the prisoner. The purity or impurity of the witness, had no direct bearing on the charge that the prisoner had administered poison, or caused and procured it to be administered to Denny. But the answer sought by the question, bore on the collateral issue as to the credibility of the witness. The questions were so far irrelevant to the main issue, that the party would have been compelled to accept the answers, had answers been given, without the right to contradict them. Still it is contended, La Beau agt. The People. that the right existed in the absence of any claim of privilege from the witness, Mrs. Denny, to show her unworthy of credit, by interrogating her on cross-examination, in regard to particular acts of immorality and vicious practices. There are cases where such inquiries may be made, as for instance, on the trial of a person for rape, or an assault and battery, with intent to commit a rape. In those cases, the prosecutrix may be asked whether she had had previous carnal intercourse with other men. (19 Wend. 192.) The question, however, is there material to the main issue, to wit: the willingness or reluctance of the prosecutrix. In England, disparaging questions like these excluded in this case, have been in general disallowed. In McBride agt. McBride, (4 Esp. R. 242), a witness for the plaintiff was asked on cross-examination, whether she slept with the plaintiff? The interrogatory was not allowed. In McBride agt. McBride (4 Esp. 243), a female witness was asked, whether she lived in a state of concubinage with the plaintiff? It was overruled. In Rex agt. Lewis (4 Esp. R. 225), the witness was asked, whether he had not been in the house of correction? The question was disallowed. In Dodd agt. Novin (3 Camp. 519), the question was put to a female witness, whether before her acquaintance with the defendant, she had not been criminal with other men? It was disallowed. In Rex agt. Pitcher (1 Car. & Payn, 85), it was held on the trial of an indictment of a female for larceny in a certain house, that the prosecutor could not be asked, whether anything improper passed between him and the prisoner, at that house? These questions were all put on the cross-examination, and disallowed. It is probable that objection was made in some instances, on the ground of privilege, or at least, that the ruling was on that ground, although it does not so appear from the reports. Mr. Greenleaf also indicates an opinion that such questions, when collateral to the issue on trial, should not be allowed. (Greenl. Ev. § 458.) So there are two cases at least in this state, in which the same rule is intimated, if not in fact declared. In Ward agt. The People (6 Hill, 144), the question was put to La Beau agt. The People. a witness, on the trial of an indictment for larceny, whether he did not steal the butter. On objection by the public prosecutor, the court overruled it. In speaking of this ruling, the chancellor said: "The objection was properly sustained, upon the ground that the answer to the question was not relevant to the matter in issue." In Southard agt. Rexford (6 Cow. 254), the witness was asked, whether he ever knew of any person having criminal connection with the plaintiff? The question was disallowed, on the ground of privilege. On reviewing this case, SUTHERLAND, J., expressed an opinion that the question in the absence of objection from the witness, on the ground of privilege, should have been allowed. But in this case the question was considered by him as material to the matter in issue. On the other hand, Roscoe says, in his Treatise on Criminal Evidence, that questions with regard to particular facts tending to degrade the witness, and affect his character and credit, may be put to him on cross-examination, even though irrelevant to the matter in issue; but the party putting them must be satisfied with the answer given by the witness, and cannot call witnesses to prove those answers false. This seems in conflict with the rulings in several of the cases above cited, but is, as I think, in consonance with the general current of authority in this state, until changed or modified by the recent decision in the court of appeals, hereafter alluded to. In The People agt. Bodine (1 Denio, 281, 314), a witness was asked on cross-examination, whether she did not on a former trial swear to the reverse of what she then stated, in a certain specified particular? The court at the trial decided, that the question was improper and inadmissible; to which ruling there was an exception. On reviewing the case, BEARDSLEY, J., in giving the opinion of the court, says: "I am unable to see in what respect this question was improper." It was material, as the answer might show that the former and the present statement of the witness were contradictory, and thus affect her credit. In Newcomb agt. Griswold (24 N. Y. 298), a witness was asked on cross-examination, whether he had been convicted 1 La Beau agt. The People. of petit larceny? The question was objected to, and excluded, and the ruling was held correct, but on the ground that the party had a right to insist that the fact be proved, if at all, by the record. In discussing this case, Judge ALLEN takes occasion to say, "that in the latitude of cross-examination, and to enable the jury to understand the character of the witness they are called upon to believe, collateral evidence is allowed from the witness himself, tending to discredit and disgrace the witness under examination.' True, this is not a decision of the question under consideration, but it is entitled to the highest consideration, especially as it received, for aught that appears to the contrary, the approbation of the entire court. In The People agt. Blakely (4 Park. Crim. R. 176), the point was directly and expressly decided. It was there held that it was competent to ask a witness on his cross-examination, with a view to affect his credibility, whether he had not been guilty of adultery, and had a venereal disease since his marriage? It was here decided that the party was entitled to this question as a matter of right, subject to objection from the witness that he was privileged from answering; and the judgment was reversed and a new trial ordered, for the error in overruling the question. But I understand that the rule laid down in this case is qualified if not repudiated, by the recent decision in the court of appeals, in the case of The Great Western Turnpike Co. agt. Loomis, not yet reported. I understand i' to be there decided, that the right to put questions to a witness, tending to disgrace him, is in the discretion of the court, and, therefore, not reviewable on appeal or writ of error, except in case of manifest abuse of such discretion, and not a matter of right, as was held in The People agt. Blakely. I have only the head notes of the case before me, but it seems to be there decided that while it is often admissible on cross-examination of a witness, with a view to affect his credibility, to interrogate him as to specific acts of immorality, no objection being interposed on his part, yet the extent of the examination, and what particular questions may be asked, are matters of discretion |