State v. Duncan

Anders, J.

(concurring). I think the cross examination of the defendant in this case was not carried beyond legitimate bounds. Whenever a defendant becomes a witness to disprove a criminal charge, he thereby subjects himself to the same liabilities in cross examination as does any other witness, and may be cross examined as to any pertinent matters, even although such testimony may tend to criminate him. The statute authorizing parties charged with offenses to. testify in their own behalf was never intended to enable them to testify as to facts tending to disprove guilt, and, at the same time, to suppress other facts tending to shake their credibility, or to throw additional light upon, or give color to, facts and circumstances detailed in the examination in chief. The object of all testimony is to elicit the truth; and experience has shown that it is only by cross examination that the whole-truth can be discovered. No one can be compelled to give evidence against himself, nor can any one accused of crime be compelled to testify in his own behalf, and, if he does not see fit to do so, it is the duty of the court to charge the jury that no presumption of guilt arises therefrom. But when a person charged with the commission of an offense voluntarily assumes the character of- a witness, he waives his constitutional protection to the extent, at least, of being cross examined according to the rules of evidence. And if he states facts tending to prove his innocence, it seems to me that it would be contrary to every considei'ation of justice to permit him to refuse to state other facts connected with the offense which might tend to show the falsity of his testimony in chief. No one would contend that he could not be compelled to answer whether he had not made declarations out of court contrary to his testimony on the witness stand, and I am unable to understand, upon principle or reason, why he should be permitted to refuse to state whether he had not acted contrary to his declarations as a witness.

The objection that the court’s modification of the instruction requested by the defendant was in contravention of § 16, art. 4 of the state constitution, is without foundation, for the reason that all that was added thereto was plainly implied in the instruction as originally presented to the court. I see no error in the record, and think the judgment ought to be affirmed.