Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-04-29
THE o'BRIEN CASE.

The Supreme Court has remanded the
O'Brien case for new trial. OBrien was
tried for embezzling State money, while an
employe Of the Iiarbor Commission. On
the trial he was called as a witness in his
own behalf. On cross-eXamination he was
examined generally, under objection, as g
witness in tie case. His direct examine
ton had been confined to the embezzlement
of the particular sum Of money that he
was charged with appropriating. 10 his
general examination he excepted and
went up on appeal. Four of the justices
of the Court hold that his croSs-examina-
ton should have been confined to the mat
tiers about which he was examined in chief,
and that it was an error of the Court to
permit it to take wider range For I'M
der Section Is, Article | of the Constitu-
ton, no person shall be compelled, in any
criminal case, to be 4 witness against him
self. The Penal Code provides that if
defendant in a criminal action offers him
self as witness he may be cross-examined
by the " People rs to all matters about
which he was examined in chief. BY the
cross-examination exceeding these bounds,
a right secured to the defendant by the
statute, as well as the Constitution, was
invaded. Two of the Justices dissent,
holding that when Il defendant in a crimi-
nal action offers himself as Il witness he
may be examined and cross-examined as
any other witness. BY testifying in
his own behalf, the defendant volUn-
tarily assumed the character of a
witness, and he became subject to
every rule adopted by the Court for the
purposes Of cross-examination. The gen
eral rule is that a witness may be cross
examined as to any facts and circumstances
connected with matters testified to by him
on his direct examination.
Now, say these dissenting Justices
The cross-examinatlon of witness is matter
which the law trusts to the discretion of the
presiding Judge. Generally the rulings of the
nation are not regarded as the legitimate sub
jcct of exception Il Greenlf Ev. 4i5l. 1t is only
where there Is an apparent abuse of discretion
! that an appellate Court interferes. The object
of all examinations is to elicit the whole truth
| and not q part of it, and the conscience of the
witness is bound by an oath to that effect 1t is
| no answer to say that a witness cannot be COM
| PEELED to criminatc himself or to answer ques-
| tons as to his participation in any offense for
which he is not on trial The law allows him
| to object to answering, on the ground that his
| answer might tend to criminate him: but that
| Is q personal privilege of which he must avail
| himself If he does not, he valves it, and is
| bound TO answer. 1t is legitimate cross-exam-
! iliatlon to inquire as to the commission of
otfenSeS so connected with the offense for which
party Is on trial and as to which he has testi-
fed in his direct examination as to form part of
| the transaction il. which the crime or ohense
| for which he is on trial was committed.
As the defendant O'Brien did not object
to any of the questions asked by the Dis
trict Attorney on the ground that it would
tend 10 criminate him; and as the ques-
tons involved matters connected with the
| transaction 10 which he had testified IN his
direct examination, the questions were
legitimate croSs-eXamination. These JUS
tees conclude in these words when a
defendant volunteers to testify in his own
behalf, upon the issue whether the alleged
crime had been committed or not, he vol
unteerS to testify in full His oath in such
case requires il. If he valves the consti-
tutional privilege at all, he valves it all.
He cannot retire under shelter when dan
ger comes. The door opened by him is
shut against retreat" To lawymen it
would seem that the dissenting Justices
have the best of the argument.