Martin v. City of Rome

Kussell, C. J., and Wade, J.,

concurring specially. The right of cross-examination, thorough and sifting, is so substantial and valuable that we can not concur in the general proposition that any court can, ex mero motu, compel a party to adopt, as a part of the record in his case, the testimony in a previous case, be that testimony ever so little or unimportant. The faculty of successful cross-examination is a gift so varied and peculiar that it can not be said that the same results will be reached by cross-examination on the part of one attorney as might be attained in the case of another. There should be no abridgment of the right of every party to have in his own case the benefit of a thorough and sifting cross-examination. In the present case it would have been error which, in our judgment, would have required reversal, if the recorder had undertaken in Martin’s case to limit in advance the scope of the cross-examination. The cases cited, so far as known to us, refer solely to the discretion of the judge in limiting or controlling the cross-examination in the particular case then under review, and the rule .does not extend so far as to permit a trial judge to restrict the questions in a subsequent case by reason of the fact that the same questions have been asked in a preceding investigation, in which the parties were not the same as in the case then upon trial. If in the instant case the judge had made the ruling complained of after the investigation in Martin’s case had begun, it could not be said that it was not prejudicial, merely because the testimony of the prosecuting witness was credible to the court. 'It was credible to the court, because it was not successfully impeached. The purpose of the cross-examination was to break down this testimony, which, if not destroyed, would authorize conviction; and it can not be assumed in advance that the cross-examination would not have discredited the witness, any more than that it would have resulted in his successful impeachment. The result of all cross-examinations is necessarily problematical.

We concur in the affirmance of the judgment solely upon the ground that the defendant, by failing to insist upon his right to a thorough and sifting cross-examination, and by acquiescence in a ruling announced in another case, foreign to the one then under investigation, waived the right to which otherwise he would by law have been entitled.