By the Court,
Bacon, J.
The first exception taken by the respondent on the trial, was to the ruling of the Judge, in not allowing him to interrogate the witness William IT. Pendleton, on his cross-[81]*81examination, as to matters pertaining to the defence, which had not been inquired after on the examination in chief.
The rule as to the cross-examination of witnesses is not uniform. In some States of the Union it is held that when a witness is called and examined in chief, the opposite party may not only cross-examine as to the matters touching which he has already testified, but that he may examine him upon any new matter which is relevant, and thus introduce at once his defence. This seems to be the rule in Massachusetts, and perhaps in New York.
In other States a different rule prevails. In 16th Serg. and Rawle, 76, Ellmaker vs. Buckley, it was decided that a party could not, on a cross-examination, travel out of or go beyond the matters touching which, the witness had already been examined. So, too, in 6th Serg. and Watts, 77, Eloyd vs. Bovard, it was said by Gibson, O. J.: “ It would be better that each party should call the witness to serve his turn, and make him his own for the time being, than to entangle the case in those distinctions with which the English Judges have surrounded it.”
The same rule is laid down in 11 Peters R., 6, 30, Phila. and Tren. Railroad Co. vs. Stimpson. The Court say : “ If every party had a right to introduce evidence at any time, at his own election, without reference to the stage of the trial in which it is offered, it is obvious that the proceedings of the Court would often be greatly embarrassed, the purposes of justice be obstructed, and the parties themselves be surprised by evidence destructive of their rights, which they could not have foreseen, or in any manner have guarded against.”
In 1 Greenl. on Ev. § 115, after citing cases from 7 Cow., 228, and 2 Wend., 166, he says: “ In the Supreme Court of the United States, the rule is well settled that a party has no right to cross-examine any witness, except as to facts and circumstances connected with the matters stated in his direct [82]*82examination ; and that if he wishes to examine him to other-matters, he must do so by making the witness his own, and calling him as such in the subsequent progress of the cause.”
In this State the same rule has, with very few exceptions, been adopted. Notwithstanding a different rule prevails in some of the States, still we are disposed to abide by the one which has so long been followed here, and which is well and accurately laid down in the cases which we have cited. It is certainly desirable not to mingle up, and thus confuse the testimony of the opposing parties. If the plaintiff first presents all his testimony, which he considers necessary to support his case, without allowing the defendant at the same time to offer a part or all of the testimony upon which he relies, and then the defendant presents the evidence which properly pertains to his defence, the line of separation is well kept up. No confusion is likely to follow; and the jury, if there be one, will be less likely to fall into mistakes, or to overlook material facts. Nor do we see any objection whatever to this rule. It tends certainly to promote method and order — two cardinal points in presenting evidence to a Judge. The rule merely regulates the manner of the examination. The party loses no rights. He only postpones the time of introducing his witnesses. We therefore think that the Judge properly refused to allow the respondent to propose to the witness, on his cross-examination, the questions which are set out in the bill of exceptions.
It is to be observed thát the Judge did not reject the evidence offered, if indeed any was offered. No opinion was intimated as to the materiality of the questions. The decision was, that on the cross-examinatiqn, the questions could not be asked. It is also worthy of observation, that at no subsequent stage of the trial was the witness recalled, and the same or like interrogatories proposed to him.
The second exception taken by the respondent, was to the decision of the Judge, in overruling as irrelevant two ques[83]*83iions -proposed to Beuben W* Pendleton, wbo was called as a witness on tbe part of tbe defence. The questions were, whether prior to the 29th of October, he had seen any improper intimacy between his wife and Wiley; and whether,' within a month previous to that time (29th October), he had seen his wife and Wiley in bed together? These two questions were objected to by the prosecution, and the objection was sustained by the Court.
Admitting for a moment, that all which is implied in these questions is true, and could have been proved by the witness, still we do not perceive what bearings they could have upon the issue to be tried. The murder was alleged to have been committed on the night of the 13th of November. Horton was the person on trial; not Pendleton, the husband of the woman towards whom the questions were aimed. That which possibly might have been a shield to the husband, had he been charged with the murder, would not avail anything to Horton, who, in judgment of law, .was a stranger, a mere volunteer in the commission of the murder; one who had no light to officiously substitute himself in the place of the jealous husband, and espouse his quarrel. There was no relation between acts which had taken place prior to the 29th of October, between Mrs. Pendleton and Wiley, both of them strangers and aliens to Horton, and the fatal acts of the 13th of November, between the respondent and the deceased. It is an utter fallacy to say, that if the respondent was the agent of Pendleton, to hunt out the adultery of the wife, and if he should find her in the very act, that therefore he could do all to the adulterer which an enraged husband might do, if he should fall upon the guilty parties by surprise.
It is true that cases can be found in which- it is said, that if the husband discover his wife in the act of adultery, and should, while in the first transport of passion, kill the adulterer on the spot, he is guilty of manslaughter merely, and not murder. (8 Oar. <& JP., 187.)
[84]*84As to the first of these propositions, the Legislature of this State (Sess. L. of 1855, p. 420), made a radical change of the common law, as to certain, rights of husband and wife. She may now hold property in her own name, or a deed may be made directly to her, without the intervention of a third person or trustee. She may also contract, buy and sell, independent of her husband. It is not necessary for us to decide, in the view which we have taken of this part of the charge, nor do we decide whether the husband may, by deed, surrender up and release the possession to his wife. We barely allude to the Act above referred to, for the purpose of showing how far the Legislature has gone in permitting the wife to take a conveyance of property, the same as if she were unmarried.
As to the second proposition in the charge above referred: to, it has been expressly held, in the case of Church vs. Sanders, 10 Wend., 79, that the wife was, in the absence of her husband, his agent for the purpose of exercising the usual and ordinary control over his property, unless it be expressly shown that he- had constituted some other person his agent for that purpose.
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By the Court,
Bacon, J.
The first exception taken by the respondent on the trial, was to the ruling of the Judge, in not allowing him to interrogate the witness William IT. Pendleton, on his cross-[81]*81examination, as to matters pertaining to the defence, which had not been inquired after on the examination in chief.
The rule as to the cross-examination of witnesses is not uniform. In some States of the Union it is held that when a witness is called and examined in chief, the opposite party may not only cross-examine as to the matters touching which he has already testified, but that he may examine him upon any new matter which is relevant, and thus introduce at once his defence. This seems to be the rule in Massachusetts, and perhaps in New York.
In other States a different rule prevails. In 16th Serg. and Rawle, 76, Ellmaker vs. Buckley, it was decided that a party could not, on a cross-examination, travel out of or go beyond the matters touching which, the witness had already been examined. So, too, in 6th Serg. and Watts, 77, Eloyd vs. Bovard, it was said by Gibson, O. J.: “ It would be better that each party should call the witness to serve his turn, and make him his own for the time being, than to entangle the case in those distinctions with which the English Judges have surrounded it.”
The same rule is laid down in 11 Peters R., 6, 30, Phila. and Tren. Railroad Co. vs. Stimpson. The Court say : “ If every party had a right to introduce evidence at any time, at his own election, without reference to the stage of the trial in which it is offered, it is obvious that the proceedings of the Court would often be greatly embarrassed, the purposes of justice be obstructed, and the parties themselves be surprised by evidence destructive of their rights, which they could not have foreseen, or in any manner have guarded against.”
In 1 Greenl. on Ev. § 115, after citing cases from 7 Cow., 228, and 2 Wend., 166, he says: “ In the Supreme Court of the United States, the rule is well settled that a party has no right to cross-examine any witness, except as to facts and circumstances connected with the matters stated in his direct [82]*82examination ; and that if he wishes to examine him to other-matters, he must do so by making the witness his own, and calling him as such in the subsequent progress of the cause.”
In this State the same rule has, with very few exceptions, been adopted. Notwithstanding a different rule prevails in some of the States, still we are disposed to abide by the one which has so long been followed here, and which is well and accurately laid down in the cases which we have cited. It is certainly desirable not to mingle up, and thus confuse the testimony of the opposing parties. If the plaintiff first presents all his testimony, which he considers necessary to support his case, without allowing the defendant at the same time to offer a part or all of the testimony upon which he relies, and then the defendant presents the evidence which properly pertains to his defence, the line of separation is well kept up. No confusion is likely to follow; and the jury, if there be one, will be less likely to fall into mistakes, or to overlook material facts. Nor do we see any objection whatever to this rule. It tends certainly to promote method and order — two cardinal points in presenting evidence to a Judge. The rule merely regulates the manner of the examination. The party loses no rights. He only postpones the time of introducing his witnesses. We therefore think that the Judge properly refused to allow the respondent to propose to the witness, on his cross-examination, the questions which are set out in the bill of exceptions.
It is to be observed thát the Judge did not reject the evidence offered, if indeed any was offered. No opinion was intimated as to the materiality of the questions. The decision was, that on the cross-examinatiqn, the questions could not be asked. It is also worthy of observation, that at no subsequent stage of the trial was the witness recalled, and the same or like interrogatories proposed to him.
The second exception taken by the respondent, was to the decision of the Judge, in overruling as irrelevant two ques[83]*83iions -proposed to Beuben W* Pendleton, wbo was called as a witness on tbe part of tbe defence. The questions were, whether prior to the 29th of October, he had seen any improper intimacy between his wife and Wiley; and whether,' within a month previous to that time (29th October), he had seen his wife and Wiley in bed together? These two questions were objected to by the prosecution, and the objection was sustained by the Court.
Admitting for a moment, that all which is implied in these questions is true, and could have been proved by the witness, still we do not perceive what bearings they could have upon the issue to be tried. The murder was alleged to have been committed on the night of the 13th of November. Horton was the person on trial; not Pendleton, the husband of the woman towards whom the questions were aimed. That which possibly might have been a shield to the husband, had he been charged with the murder, would not avail anything to Horton, who, in judgment of law, .was a stranger, a mere volunteer in the commission of the murder; one who had no light to officiously substitute himself in the place of the jealous husband, and espouse his quarrel. There was no relation between acts which had taken place prior to the 29th of October, between Mrs. Pendleton and Wiley, both of them strangers and aliens to Horton, and the fatal acts of the 13th of November, between the respondent and the deceased. It is an utter fallacy to say, that if the respondent was the agent of Pendleton, to hunt out the adultery of the wife, and if he should find her in the very act, that therefore he could do all to the adulterer which an enraged husband might do, if he should fall upon the guilty parties by surprise.
It is true that cases can be found in which- it is said, that if the husband discover his wife in the act of adultery, and should, while in the first transport of passion, kill the adulterer on the spot, he is guilty of manslaughter merely, and not murder. (8 Oar. <& JP., 187.)
[84]*84As to the first of these propositions, the Legislature of this State (Sess. L. of 1855, p. 420), made a radical change of the common law, as to certain, rights of husband and wife. She may now hold property in her own name, or a deed may be made directly to her, without the intervention of a third person or trustee. She may also contract, buy and sell, independent of her husband. It is not necessary for us to decide, in the view which we have taken of this part of the charge, nor do we decide whether the husband may, by deed, surrender up and release the possession to his wife. We barely allude to the Act above referred to, for the purpose of showing how far the Legislature has gone in permitting the wife to take a conveyance of property, the same as if she were unmarried.
As to the second proposition in the charge above referred: to, it has been expressly held, in the case of Church vs. Sanders, 10 Wend., 79, that the wife was, in the absence of her husband, his agent for the purpose of exercising the usual and ordinary control over his property, unless it be expressly shown that he- had constituted some other person his agent for that purpose. She has a right to enter and remain in her husband’s house, if she does so without a breach of the peace. (Rex vs. Smith, 26 E. C. L. R., 279.)
We do not, however, deem it necessary to make a decision even on this. Both these points are abstract propositions, which do not relate to the issue. The question to be tried was, whether Horton willfully and feloniously, with malice aforethought, took the life of Wiley. If there is any connection between the issue, and the points which are made by the respondent, it is too remote and too subtle to be perceived. Questions had been raised upon the trial by the respondent, touching the possession of the house in which the murder was alleged to have been committed ; whether the husband or the wife was in possession, and also whether the wife was, in the absence of the husband, his agent to transact his [85]*85business. Both questions were foreign to the issue. Whether the deceased was or was not a trespasser, in entering the house, or whether he entered it with or without the permission of Mrs. Pendleton, could in no way or manner justify the respondent in shooting Wiley.
Both these parts of the charge, then, being upon immaterial and abstract propositions, an error, if indeed there be any, Would not affect the verdict.
In Shorter vs. the People, 2 Comst., 202, the Court say : “An error of the Court concerning an abstract proposition, having nothing to do with the matters in hand, is not a sufficient ground for reversing a judgment. (See Hayden vs. Palmer, 2 Hill, 205; Cow. & Hill Notes to 1 Phil. Ev., 787, 788.)
The fifth and last exception taken by the respondent, is thus stated;
The counsel for the respondent requested the Court to charge the jury, “that the possession of the wife of real estate of which the husband is the owner, is, under all circumstances, the possession of the hushand.”
The Judge refused to charge differently than what he had already charged. We think the refusal was right. He had already instructed the jury that, if Pendleton built the house, took possession and continued in the occupation of it, this was sufficient prima facie evidence of ownership and possession in fact, and that, while in possession, his wife, a,t common lom, could not have, hold or legally claim amp possession but his, and that her onlp right of possession would be his.
The only difference between the instruction which was given, and that which was asked by the respondent, consists in the qualifying clause, “ under all circumstancesThe jury had been already instructed that the possession of the wife of the house, owned by Pendleton, was the possession of the husband, accompanied with the further statement that the husband could, by deed, surrender up the possession [86]*86to the wife. The respondent then asks the Court to instruct the jury, “ that the possession of the wife of real estate of which the husband is the owner, is, under all evroumstcmoes, the possession of the husband.”
The jury had, on this point, been already correctly instructed. Had the instruction which was asked for been given, it would have been saying, that to the general rule which had been already laid down, there were no exceptions* And we are of opinion, that if there was no exception to the rule prior to the Act of 1855, thex-e is novi one created by that statute.
On a cax’eful review of the whole charge, and of the x-ulings of the Court, we think the respondent has no reason to complain. All the evidence was faii-ly submitted to the jury, with the injunction to examine it, and see whethex-, in their opinion, it tended to prove or disprove the malice. We quote the concluding words of the charge :
“ Just so fax-, therefore, as any of the facts and circumstances, on either side, and to which the Court has particulax-ly called your attention, or any other legally ixx evidence before you, tends to prove, or to disprove the malice, just so far they are indeed material, and should not be lost sight of by you, in your consideration of the case.”
We think there was no error in the proceedings of the Circuit Court for which a new trial should be granted.
Present, Bacon, Wing, Green, Copeland, Martin, and Douglass, J. J.
Douglass and Johnson, J. J., dissented.