Opinion
December Term, 1823.
A witness on a trial cannot be asked if he has not, in conversation, stated the facts of the case otherwise than he now deposes.
THIS case came a second time before the court, it not appearing from the certificate sent from this Court that any order or decision had been made here on the motion for a new trial. S. v. Simpson, ante, 460, and now another point was stated on the record sent up. On the trial below defendant's counsel asked a witness on the part of the prosecution if she had not held conversations with others, in which she stated the facts otherwise than as she now did. The court below would not permit the witness to answer the question, and this formed the (581) ground of a motion for a new trial.
The Attorney-General for the State.
The tendency of the question put to the witness in this case was to invalidate her credibility and to cast a shade upon her moral character, but such evidence ought to be drawn from other sources than the witness himself. It is against first principles to compel a man to accuse himself of a crime, and to enforce an answer to such questions would tend to deprive the citizens of that protection which the law affords, and materially obstruct the administration of justice.
It is clearly established that a witness cannot be compelled to answer any question tending to render him the subject of a criminal accusation; nor to answer interrogations having a direct tendency to subject him to penalties, or having such a connection with them as to form a step towards it. 4 Esp., 117; 16 Vesey, 59.
It was for a long time doubted whether a witness was obliged to admit or answer to any matter which tended to lessen his moral estimation, although it did not involve an indictable offense, but it seems now to be settled that he cannot. 3 Campbell, 519. Thus, a woman prosecuting for a rape cannot be asked whether she is a woman of a dissolute character, nor can other witnesses be called to prove it. The principle of these cases applies to the question before us, which I think the witness was not bound to answer.
The other judges concurred.
PER CURIAM. No error.
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