12 Vt. 491 | Vt. | 1840
The opinion of the court was delivered by
— It is well settled, that a witness is not bound to answer any question, the answer to which might tend to criminate him, i. e. expose him to a prosecution for crime, or penalty.
It is doubtless true, that this is not the most effectual mode
It is the privilege of the witness, and he may waive it. And if he submit to testify about the very matter tending to criminate himself, without claiming his privilege, he must submit to a full cross-examination. In 22 E. C. L. R. 244, n. (a.) Lord Tenterden, C. J. said, the objection belonged to the witness, and he would notallow the counsel to argue it. In the case of Dixon v. Vale, 11 E. C. L. 391, the witness, before testifying to the principal matter, was cautioned, and told that he was not obliged to testify, but he still chose to go forward, and the court would not suffer him afterwards to retract his waiver of the privilege. In all cases where the question, tending to elicit matters involving the witness in^a suspicion of crime, fir t arises on cross-examination, the witness is still allowed his privilege, unless he has understandingly waived it. Rex v. Pitcher, 11 E. C. L. 323. In this latter case the question seemed to be wholly collateral to the principal issue, and tending rather to disgrace the witness, than to show him guilty of crime. But the rule is well settled, that the privilege must be claimed by the witness. Ordinarily, I apprehend, when testimony is expected from a witness, so situated as to be interested in this privilege, he should be told, either by the counsel or by the court, at the suggestion of the counsel, that if the matter- will tend to criminate him he is not obliged to testify; but if he begins, he is then bound to make a full disclosure..
From the facts detailed in the bill of exceptions, in the present case, it is very certain the court did right in not compelling the witness to give testimony, and their judgment must be affirmed.