Foster v. Pierce, 65 Mass. 437

Foster v. Pierce

65 Mass. 437 | Mass. | 1853

Dewey, J.

The general principle of law, that a witness is not bound to criminate himself, is not controverted. But the question is, at what stage of the case is he to claim his privilege ? Can the witness proceed to state material facts bearing upon the case, and favorable to one party, and when cross-examined by the opposite party in reference to the same subject, decline answering by reason of his privilege not to criminate himself?

*439In the case of Dixon v. Vale, 1 Car. & P. 278, it was ruled by Best, C. J. that if a witness, being cautioned that he is not obliged to answer a question which may criminate him, still does answer such question, he cannot afterwards take the objection to any further question relative to the whole transaction. In East v. Chapman, 2 Car. & P. 570, Abbott, C. J. says upon a similar objection taken to answering further questions, “ you might have objected to giving any evidence, but having given a long history of what passed, you must go on, otherwise the jury will only know half of the matter.” It is said in 1 Greenl. Ev. § 451, where the witness after being advertised of his privilege, chooses to answer, he is bound to answer every thing relating to the transaction.

The latter proposition would fully embrace the present case, as the presiding judge in the bill of exceptions states that from the beginning of his evidence the witness had fully understood his privilege, as was apparent to the court. This being so, it was unnecessary for the court further to state the same to him. With this knowledge of his rights, having chosen to answer in part, he must answer fully. In the case of Brown v. Brown, 5 Mass. 320, a libel for divorce, the counsel proposed that a witness should be allowed to testify that he knew the party to have committed the crime of adultery, but without naming the person with whom the adultery was committed, but the court said they should inquire of the witness with whom it was committed.

It would seem quite reasonable to go somewhat further than the present case requires, and adopt the broad principle that the witness must claim his privilege in the outset, when the testimony he is about to give, will, if he answers fully all that appertains to it, expose him to a criminal charge, and if he does not, he waives it altogether. In Chamberlain v. Willson, 12 Verm. 491, the principle is directly held that if a witness submit himself to testify about the very matter tending to criminate himself, without claiming his privilege, he must submit to a full cross-examination. If he states a particular fact in favor of the party calling him, he will be bound on his cross-examination to state all the circun stances relating to *440that fact, although in so doing he may expose himself to a criminal charge. State v. K-, 4 N. Hamp. 562.

We are satisfied that the ruling of the presiding judge was correct, and the

Exceptions are overruled.