Nesmith, J.
It appears to us, that the fact, that second hand coats „ like that taken from Warren’s house, were sometimes bought and sold at the Exeter depot, by workmen on the railroad, could have but a remote tendency to explain or answer the positive testimony of the State, that the coat in question was actually identified as Warren’s, and had been stolen, at a particular time, from his house, and very soon after-wards was seen on the back of the respondent himself. Such testimony could have but a slight bearing upon the controlling evidence of the case, and we think was properly rejected by the court. The first exception is therefore overruled.
The State offered Mrs. Mary A. Brown, admitted to be an accomplice of the respondent in the crime charged in the indictment. Her evidence is offered and received only under the implied condition of making a full confession of the whole truth. The respondent’s counsel, on cross-examination, proposed to ask the witness "if she had not, about the time of the commission of the offence charged in the indictment, committed other larcenies?” Also, "if she had not pleaded nol. con. to an indictment for other larcenies ?” "If she had not charged innocent persons with other larcenies, and confessed this fact?”
It will be readily seen, that those inquiries extended to collateral matters, and beyond the issue directly before the court. Now, where it reasonably also appears, that the answer of the witness will have a tendency to expose her to a penal liability, or to any kind of punishment, or to a criminal charge, the authorities are clear, that the witness is not bound to answer. Nor is the witness bound to testify to any particular fact, which would be but a single link in the chain of evidence which is to convict the witness. Against such inquiries the law gives the witness the full privilege of protection. State v. Foster, 23 N. H. 348 ; Janvrin v. Scammon, 9 N. H. 280; Coburn v. Odell, 10 N. H. 540 ; 1 Green. Evid. sec. 451.
But where the obvious intent of the questions was to discredit or disgrace the witness, a question is raised about which much difference of opinion has existed. On the one hand, it has been repeatedly held, that a witness cannot be forced to give an answer, which will render him infamous, or will involve him in shame and reproach. Wharton, in his Criminal Law, quotes some fifteen decisions in this country and in England in support of the preceding doctrine; vide note, sec. 809.
On the other hand it has been frequently decided that questions tending to elicit the truth, either as to the main facts of the case, or the character of the witness testifying in it, ought to be answered, though they may be calculated to wound the sensibility of an individual. Rex [118]*118v. Edwards, 4 Term 440, Roberts v. Allett, M. M. 192, People v. Mather, 4 Wendell 250, are the authorities relied on by Wharton in support of the last position.
It has been recently held in New York, in a case well considered, that where a witness is asked a question, the answer to which would disgrace him, but could have no bearing on the issue, except so far as it might impeach his credibility, he is privileged from answering it; vide People v. Lohman, 1 Comstock 379.
Prof. Greenleaf, after much discussion of this subject, thus states his result that the great question, whether a witness may not be bound in some cases to answer an interrogatory to his own moral degradation, where, though it is collateral to the main issue, it is relevant to his character for veracity, has not yet been brought into direct and solemn judgment, and must be regarded as an open question, and of course resting much upon the discretion of the judge who tries the case. 1 Greenleaf sec. 459. Phillips approves the doctrine, that accomplices are not to be questioned in their cross-examination as to other offences in which they have not been concerned with the prisoner. 2 Phillips on Evid. 422 ; Phillips & A. on Evid. 917, 918.
Upon the review of the law on this subject, the question recurs, whether by the decision of the judge who tried this case, the respondent was deprived of his just and legal rights, in consequence of the witness being told .she need not answer the aforesaid questions put to her by her counsel.
.The position of Mrs. Brown as a witness, was that of one tainted with admitted -crime. And it appears her general character for truth was successfully impeached. She was no doubt thoroughly cross-examined upon the issue before the court, by able counsel, who never omit the discharge of duty. We are unable to perceive how the jury, who tried the cause, could have been deceived or misled by her words or conduct. And we sustain the action of the court, who tried the case, in the .exercise of the discretion used by him in refusing the proposed cross-examination, and we overrule accordingly the exception of the respondent on this point. Janvrin v. Scammon, ante; Hersom v. Henderson, 33 N. H. 506.
The objection was also taken here, that the court cut off the privilege of the witness to answer the questions propounded, by a premature decision in her favor. Whether the answer may tend to criminate or expose the witness, is a point which the court will at once determine, under all the circumstances of the case, and without requiring the witness fully to explain how he may be criminated by the answer which the truth might oblige him to give. For if he were obliged to show how the effect would be produced, the protection, which the rule is designed to afford, would be nullified.
The doctrine in Hersom v. Henderson, 23 N. H. 506, is, that it is the duty of the court to see that witnesses are rightly protected from disgrace, especially where the questions put ■ do not bear directly upon the issue on trial. 1 Green. Evid. 460.
The testimony of Brothers would seem to be competent, if the lan[119]*119guage of the respondent to the witness might by fair inference embrace this prosecution or case among the rest of the cases he then had in mind. It was for the jury to determine from the whole conversation employed, especially that about the coat that he got of Mrs. Brown, "who told him to take it and keep it out of the way,” whether this was one of the cases he had in his mind among the rest, about which he solicited the assistance of Brothers, and was willing to pay $50 to secure his aid.
It was settled in the indictment, Com. v. Sackett & als., 22 Pick. 394, that the defendant had the right to ask a witness whether any person in behalf of the Government had made to the witness any offer of reward, in relation to the testimony he should give in a certain class of cases, comprehending the case on trial. If the defendant could legally make so broad and comprehensive inquiry, we think for like reasons may the State. The testimony would evidently be irrelevant, unless this attempt at bribery or subornation of peijury is made to embrace the matter of this indictment among the rest of the cases of larceny to which the offer could be made to apply. In only this view the evidence could be regarded as relevant, and so far only, we understand it was actually used. We are, therefore, of the opinion, that this exception should be overruled.
Mrs.
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Nesmith, J.
It appears to us, that the fact, that second hand coats „ like that taken from Warren’s house, were sometimes bought and sold at the Exeter depot, by workmen on the railroad, could have but a remote tendency to explain or answer the positive testimony of the State, that the coat in question was actually identified as Warren’s, and had been stolen, at a particular time, from his house, and very soon after-wards was seen on the back of the respondent himself. Such testimony could have but a slight bearing upon the controlling evidence of the case, and we think was properly rejected by the court. The first exception is therefore overruled.
The State offered Mrs. Mary A. Brown, admitted to be an accomplice of the respondent in the crime charged in the indictment. Her evidence is offered and received only under the implied condition of making a full confession of the whole truth. The respondent’s counsel, on cross-examination, proposed to ask the witness "if she had not, about the time of the commission of the offence charged in the indictment, committed other larcenies?” Also, "if she had not pleaded nol. con. to an indictment for other larcenies ?” "If she had not charged innocent persons with other larcenies, and confessed this fact?”
It will be readily seen, that those inquiries extended to collateral matters, and beyond the issue directly before the court. Now, where it reasonably also appears, that the answer of the witness will have a tendency to expose her to a penal liability, or to any kind of punishment, or to a criminal charge, the authorities are clear, that the witness is not bound to answer. Nor is the witness bound to testify to any particular fact, which would be but a single link in the chain of evidence which is to convict the witness. Against such inquiries the law gives the witness the full privilege of protection. State v. Foster, 23 N. H. 348 ; Janvrin v. Scammon, 9 N. H. 280; Coburn v. Odell, 10 N. H. 540 ; 1 Green. Evid. sec. 451.
But where the obvious intent of the questions was to discredit or disgrace the witness, a question is raised about which much difference of opinion has existed. On the one hand, it has been repeatedly held, that a witness cannot be forced to give an answer, which will render him infamous, or will involve him in shame and reproach. Wharton, in his Criminal Law, quotes some fifteen decisions in this country and in England in support of the preceding doctrine; vide note, sec. 809.
On the other hand it has been frequently decided that questions tending to elicit the truth, either as to the main facts of the case, or the character of the witness testifying in it, ought to be answered, though they may be calculated to wound the sensibility of an individual. Rex [118]*118v. Edwards, 4 Term 440, Roberts v. Allett, M. M. 192, People v. Mather, 4 Wendell 250, are the authorities relied on by Wharton in support of the last position.
It has been recently held in New York, in a case well considered, that where a witness is asked a question, the answer to which would disgrace him, but could have no bearing on the issue, except so far as it might impeach his credibility, he is privileged from answering it; vide People v. Lohman, 1 Comstock 379.
Prof. Greenleaf, after much discussion of this subject, thus states his result that the great question, whether a witness may not be bound in some cases to answer an interrogatory to his own moral degradation, where, though it is collateral to the main issue, it is relevant to his character for veracity, has not yet been brought into direct and solemn judgment, and must be regarded as an open question, and of course resting much upon the discretion of the judge who tries the case. 1 Greenleaf sec. 459. Phillips approves the doctrine, that accomplices are not to be questioned in their cross-examination as to other offences in which they have not been concerned with the prisoner. 2 Phillips on Evid. 422 ; Phillips & A. on Evid. 917, 918.
Upon the review of the law on this subject, the question recurs, whether by the decision of the judge who tried this case, the respondent was deprived of his just and legal rights, in consequence of the witness being told .she need not answer the aforesaid questions put to her by her counsel.
.The position of Mrs. Brown as a witness, was that of one tainted with admitted -crime. And it appears her general character for truth was successfully impeached. She was no doubt thoroughly cross-examined upon the issue before the court, by able counsel, who never omit the discharge of duty. We are unable to perceive how the jury, who tried the cause, could have been deceived or misled by her words or conduct. And we sustain the action of the court, who tried the case, in the .exercise of the discretion used by him in refusing the proposed cross-examination, and we overrule accordingly the exception of the respondent on this point. Janvrin v. Scammon, ante; Hersom v. Henderson, 33 N. H. 506.
The objection was also taken here, that the court cut off the privilege of the witness to answer the questions propounded, by a premature decision in her favor. Whether the answer may tend to criminate or expose the witness, is a point which the court will at once determine, under all the circumstances of the case, and without requiring the witness fully to explain how he may be criminated by the answer which the truth might oblige him to give. For if he were obliged to show how the effect would be produced, the protection, which the rule is designed to afford, would be nullified.
The doctrine in Hersom v. Henderson, 23 N. H. 506, is, that it is the duty of the court to see that witnesses are rightly protected from disgrace, especially where the questions put ■ do not bear directly upon the issue on trial. 1 Green. Evid. 460.
The testimony of Brothers would seem to be competent, if the lan[119]*119guage of the respondent to the witness might by fair inference embrace this prosecution or case among the rest of the cases he then had in mind. It was for the jury to determine from the whole conversation employed, especially that about the coat that he got of Mrs. Brown, "who told him to take it and keep it out of the way,” whether this was one of the cases he had in his mind among the rest, about which he solicited the assistance of Brothers, and was willing to pay $50 to secure his aid.
It was settled in the indictment, Com. v. Sackett & als., 22 Pick. 394, that the defendant had the right to ask a witness whether any person in behalf of the Government had made to the witness any offer of reward, in relation to the testimony he should give in a certain class of cases, comprehending the case on trial. If the defendant could legally make so broad and comprehensive inquiry, we think for like reasons may the State. The testimony would evidently be irrelevant, unless this attempt at bribery or subornation of peijury is made to embrace the matter of this indictment among the rest of the cases of larceny to which the offer could be made to apply. In only this view the evidence could be regarded as relevant, and so far only, we understand it was actually used. We are, therefore, of the opinion, that this exception should be overruled.
Mrs. Warren, wife of the prosecutor, testified on the former trial, in behalf of the State, but being sick at the time of the last trial, the respondent offered to prove what she had testified to on the former trial. The court rejected the evidence, and defendant excepted. We have not known a practice in this State, where the witness is alive and within the jurisdiction of the court, and in criminal proceedings, to allow the former statements of the witness to be used. Such testimony is admitted at any time only upon urgent necessity, and in violation of the familiar-rule that the best -testimony is to be used, and it would be an anomaly in our practice to introduce the produced former statements of a living witness, through a copyist or a bystander. The evidence of a witness in the same cause, and at a former trial, is not admissible, until it has been first proved that he is dead. 4 Term Reports, 290; 17 Johnson’s Rep. 176 ; 6 Cowan 162 ; 14 Mass. 234; Butler’s Nisi Prius, 242. In criminal proceedings especially this rule will be strictly enforced. In many jurisdictions the proof of the death of the witness will not justify the use of his former testimony. People v. Newman, 5 Hill, 295 ; 3 Wendell 257 ; 5 Randolph Rep. 708 ; 1 Overton 229 ; 2 Hawkins’ Pleas of the Crown, sec. 12, 606; 1 Phil. Evid. 199. It seems to be questioned by high authorities if such testimony be admissible at all. 2 Johnson’s Rep.
Judgment on verdict.