tion of a defendant to matters testified to on direct examination: Mo. Rev. Stats., sec. 1918; State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374; State v. Graves, 95 Mo. 510; State v. Brooks, 92 Mo. 542, 581; State v. Beaucleigh, 92 Mo. 490. The same rule prevails in Louisiana: State v. Underwood, 44 La. Ann. 852; State v. Baker, 43 La.

Ann. 1168.

The prosecution cannot make a defendant in a criminal case its own witness against his consent: State v. Cohn, 9 Nev. 179. Neither can he be recalled by the prosecution to be examined as its own witness, though he may be recalled for proper cross-examination: State v. Horne, 9 Kan. 119; State v. Lewis, 56 Kan. 374; Thomas v. State, 100 Ala. 53.

Personal Privilege. The privilege of a witness to refuse to answer a criminating question is one that is personal to himself, he alone being entitled to invoke its protection. But his right to refuse is a mere privilege which he may waive: Fries v. Brugler, 12 N. J. L. 79, 21 Am. Dec. 52; Ex parte Senior, 37 Fla. 1; Cloyes v. Thayer, 3 Hill, 564; McCreery v. Ghormley, 9 N. Y. App. Div. 221; State v. Ekanger, 8 N. Dak. 559. A party to the suit cannot claim the privilege for the witness, whether the party is the one who called him or not: Morgan v. Halberstadt, 60 Fed. Rep. 592; Commonwealth v. Shaw, 4 Cush. 594, 50 Am. Dec. 813; Commonwealth V. Gould, 158 Mass. 499; Newcomb v. State, 37 Miss. 383; Boyer v. Teague, 106 N. C. 576, 19 Am. St. Rep. 547; Duncan v. State (Tex.), 51 S. W. Rep. 372; State v. Kennedy (Mo.), 55 S. W. Rep. 293; Brown v. State (Tex.), 20 S. W. Rep. 924. Neither can a party assign error on the court's refusal to inform a witness that he need not answer the questions propounded to him if such answers would tend to criminate him: Bolen v. People, 184 Ill. 338; Commonwealth v. Shaw, 4 Cush. 594, 50 Am. Dec. 813. Where, however, a witness does not bring himself within the rule, and the court allows his privilege in a case where it should not, then the party who has been wrongfully deprived of his testimony and has been injured thereby may object and secure appropriate relief on appeal: Clark v. Reese, 35 Cal. 89; Cloyes v. Thayer, 3 Hill, 564. A party may likewise object to a witness answering, where the question is not pertinent to the issues in the case, and the objection should be sustained whether the witness objects to answering or not. The objection of the party in such a case is not based on the privilege of the witness: See Sharon v. Sharon, 79 Cal. 633; Sodusky v. McGee, 5 J. J. Marsh. 621. In Alston v. State, 109 Ala. 51, it was held that a question so framed that a responsive answer prima facie tends to criminate the witness is objectionable, and need not be answered. This rule would seem to be correct if the witness himself declines to answer, and in such a case he is not obliged to base his refusal on the ground that it would criminate him. But since the privilege of refusing to answer is nothing more than a privilege which the witness may waive, it would seem that the question itself, if relevant, was

not an improper one to ask, and that an objection to It could not be sustained if the witness was willing to answer it.

The rule is also well settled that, generally, the objection that an answer, if made, may tend to criminate the witness is not such an objection as counsel may take advantage of to exclude testimony. This necessarily follows from the previous rule that the privilege of refusing to testify is personal to the witness: Lothrop v. Roberts, 16 Colo. 250; Bradford v. People, 22 Colo. 157; Ward v. People, 6 Hill, 144; State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688; San Antonio St. Ry. Co. v. Muth, 7 Tex. Civ. App. 443; State v. Butler, 47 S. C. 25; Eggers v. Fox, 177 Ill. 185. The question of privilege is purely one between the witness and the court, and it might seem, there fore, that if the court understands that the witness claims his privilege, it would be immaterial whether this claim were made by the witness in person or through his counsel. This was held in Clifton v. Granger, 86 Iowa, 573, where the court said that the rule did not require that the witness should in person address the court and claim the privilege. People v. Brown, 72 N. Y. 571, 28 Am. Rep. 183, seems to sustain a similar doctrine. There is no doubt that counsel, in protecting their clients, may raise the point, and call the court's attention to the matter, and ask that the witness be apprised of his rights, and given the opportunity to claim his privilege if he so desires. But we believe the better rule is laid down in State v. Kent, 5 N. Dak. 516, where it was said that the witness must claim the privilege in person, and must state under oath that the answer will tend to criminate him. If he is not required to claim his privilege under oath, there is no way a defendant in a criminal case can have his credibility impeached by showing from him that he has committed other offenses, or by compelling him to claim his privilege which will equally tend to impeach his credibility. A jury will always draw an unfavorable conclusion by reason of a witness refusing to testify because the answer will criminate him. But this is the penalty he must pay for his protection. The privilege is not given to screen the credibility of the witness. But if the witness is not obliged to personally claim his priv ilege under oath, and can allow his counsel to claim it for him, there is no admission by the witness under oath which tends to discredit him, and the real benefit to be derived by the party examining the witness from such a discrediting admission by the witness is very largely lost. Even if counsel do attempt to claim the privilege for the witness, the witness may answer, and an objection by counsel to such answer is without effect: Taylor v. State, 83 Ga. 647. Who Determines Tendency of Answer.-It is undoubtedly the correct rule that it is for the court to determine whether or not any direct answer to a question will furnish evidence against a witness: Ward v. State, 2 Mo. 120, 22 Am. Dec. 449; Minters v. People, 139 Ill. 363: Wyckoff v. Wagner etc. Co., 99 Fed. Rep. 158; Ex parte Senior, 37 Fla. 1; Ex parte Park, 37 Tex. Cr. Rep. 590, 66 Am. St. Rep. 835; State v. Thaden, 43 Minn. 253. All that is required, however, is

that it may appear to the court that the fact upon which the witness is interrogated may form one link in the chain of evidence which would lead to his conviction: Stevens v. State, 50 Kan. 712; Ford v. State, 29 Ind. 541, 95 Am. Dec. 658. Chief Justice Marshall, In 1 Burr's Trial, 424, stated the rule thus: "It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it, so as to furnish matter for that conviction."

A witness cannot avoid answering any question by the mere statement that the answer would tend to incriminate him, without regard to whether the statement is reasonable or not: Ex parte Irvine, 74 Fed. Rep. 954. The court determines the matter from all the circumstances of the case, but without requiring him to explain how his answer will criminate him. But unless the court can see that the witness will not be criminated, the privilege will be recognized and protected: Janvrin v. Scammon, 29 N. H. 280; Coburn v. Odell, 30 N. H. 540. A witness will not, however, be permitted to make any fraudulent use of his privilege. And when the court can discover no reasonable theory upon which the answer could be incriminating, it may deny the privilege, or make further investigation: State v. Kent, 5 N. Dak. 516. We have already noticed that a distinction has been drawn between answers which are incriminating and those which merely tend to disgrace the witness. In the first case the court will allow the privilege if there is any possibility that the answer may tend to incriminate the witness. But where the answer will disgrace the witness, in those jurisdictions where such a privilege exists, the court must be able to see that whatever answer the witness gives it will directly show the infamy. But in both cases the question is one for the court to determine: People v. Mather, 4 Wend. 230, 21 Am. Dec. 122.

The courts have differed at times as to what will criminate a witness, and for this reason the rule is and should be liberally construed in favor of the witness, for a strict construction is likely to defeat its object. The cases of Minters v. People, 139 III. 363, and Ward v. State, 2 Mo. 120, 22 Am. Dec. 449, furnish good examples of how courts may differ as to whether an answer will tend to criminate a witness or not. In both cases the general rule is recognized that a witness need not answer even that which tends to criminate him by furnishing one link in the chain of evidence that might convict him. In the Illinois case, the witness stated before the grand jury that he knew of persons playing cards for money, and, when asked to name such persons, he refused on the ground that his answer would give evidence which would tend to convict him. The supreme court upheld his privilege, on the ground that a party to a game of cards, if obliged to give the names of

others playing in the same game, tends to furnish proof of his criminal participation. This is clearly correct, although if the wit ness had simply been in a place where he saw others play he could be compelled to disclose all he saw. The Missouri case held the contrary of the above proposition, and said that a witness who was a participant in the illegal betting could be compelled to give the names of the others who participated, though from the Illinois case it is clear that the evidence given furnished a link in the chain by means of which it would be comparatively easy to secure evidence against him sufficient to convict him.

While it is true that a witness will not be allowed to make a fraudulent use of his privilege, yet the question of good faith frequently does not enter into the matter at all. "Where from the evidence and the nature of the question, the court can definitely determine that the question, if answered in a particular way, will form a link in the chain of evidence to establish the commission of a crime by the witness, the court cannot inquire whether the witness claimed his privilege in good faith or otherwise. It is only where the criminating effect of the question is doubtful that witness' motive may be considered, for in such case his bad faith would tend to show that his answer would not subject him to the danger of a criminal prosecution or help to prove him guilty of a crime": Ex parte Irvine, 74 Fed. Rep. 954.

Some of the courts have, at least seemingly, adopted a more liberal rule than we have stated above, and hold that it is for the witness and not for the court to judge whether his answer to a question will tend to criminate him; and that the duty of the court is to so instruct him with reference to his rights as to enable him to decide understandingly: State v. Edwards, 2 Nott & McC. 13, 10 Am. Dec. 557. Even in the jurisdictions which seem to hold this rule there is this limitation, viz., that if it is perfectly clear to the court that the witness is mistaken, or that he is acting in bad faith, the privilege will not be allowed. This must, however, be perfectly clear to the court: Chamberlain v. Willson, 12 Vt. 491, 36 Am. Dec. 356; Temple v. Commonwealth, 75 Va. 892; People v. Forbes, 143 N. Y. 219. This last case cited is undoubtedly a border line one. It related to an investigation before a grand jury. It seems that the students of one of the classes of Cornell University were holding a banquet, and during the banquet some persons, presumably students, injected a poisonous gas into the dining-hall and kitchen, causing the death of one person and seriously affecting others. The witness in question, Taylor, was subpoenaed before the grand jury. After he had testified that he had no connection whatever with the transaction, he refused to answer some other questions on the ground that they would tend to criminate him. The court of appeals sustained him in claiming his privilege, and said: "It was argued that the relator could not possibly be put in peril by his answer to the question, since he had already testified that he had

no connection with the transaction. But this conclusion was not warranted by the facts. The testimony of the witness might be ever so strong and clear in favor of his innocence, but it did not conclude the public prosecutor, in the absence of some constitutional or statutory provision securing the relator from prosecution. The general statements of a person charged with crime in regard to his innocence avail but little against incriminating facts and circumstances. . . . . The witness who knows what the court does not know, and what he cannot disclose without accusing himself, must in such cases judge for himself as to the effect of his answer, and if, to his mind, it may constitute a link in the chain of testimony, sufficient to convict him, when other facts are shown, or to put him in jeopardy, or subject him to the hazard of a criminal charge, indictment, or trial, he may remain silent."

....

What Deprives Witness of Privilege.-We have already found the general rule to be that an accused, by taking the stand to testify in his own behalf, waives his privilege so far as it relates to the crime with which he is charged and to all matters material and pertinent thereto. In addition to the cases already cited, see Pyland v. State (Tex.), 26 S. W. Rep. 621; State v. Allen, 107 N. C. 805; State v. Thaden, 43 Minn. 253; State v. Tall, 43 Minn. 273. A general denial that the witness has any connection whatever with a crime does not deprive him of his privilege: People v. Forbes, 143 N. Y. 219. There seems to be a difference of opinion as to whether testifying before a grand jury deprives a witness of his privilege so that he cannot claim it at the trial of the case. The better rule is that the witness can claim his privilege at the trial, notwithstanding he may have voluntarily testified before the grand jury: Temple v. Commonwealth, 75 Va. 892; People v. Lauder, 82 Mich. 109. The contrary is held in Iowa: State v. Van Winkle, 80 Iowa, 15. There would seem to be no substantial reason why a witness should not have the right to claim his privilege at every separate investigation or trial of the offense. The rule seems general that a waiver of one's privilege at one trial does not constitute a waiver at a subsequent trial of the same case: Emery v. State, 101 Wis. 627; Georgia R. R. etc. Co. v. Lybrend, 99 Ga. 421. The Iowa case just citedState v. Van Winkle, 80 Iowa. 15-bases its decision, that testifying before the grand jury constitutes a waiver of a witness' privilege at the trial, upon the doctrine that a witness who understandingly discloses part of a transaction exposing him to a criminal prosecution without claiming his privilege, is ordinarily obliged to go forward and make a full disclosure of the transaction. This doctrine, however, has no application unless the disclosure can be regarded as one continuous account, which manifestly occurs where it is made at a single trial of the case. But separate trials are not so connected as to make testimony at one a continuous statement with the testimony at another which requires the disclosure of other evidence at the subsequent trial. Similarly a grand jury investiga. tion and a subsequent trial are wholly disconnected. And the fact