the instruction given by the court below as to resistance on the part of the prosecutrix. The court thus directed the jury:

"Resistance on the part of the woman must also be established by the evidence; but it is not necessary to show that she used all the resistance in her power. If her resistance was in good faith, and honestly made, and was the utmost according to her light, and the circumstances under which she was placed, it is sufficient."

The court refused to give the instructions on the point of resistance by the female asked by the defendant. These instructions are numbered 7, 8, and 9. No. 7 was refused on the ground that it is given in the instructions of the court. Nos. 8 and 9 were refused, because properly given in instructions of the court.

I do not think the portion of the instruction given which is quoted above properly given. It does not lay down a correct rule for the guidance of the jury. The jury was told that if the resistance was made in good faith and honestly, and was the utmost according to her light, and the circumstances under which she was placed, it was sufficient. The words "according to her light" furnished no rule to the jury. What their meaning is we are at a loss to perceive. What could the jury find as to the light of the woman? What could they know of the internal state of her mind at the time of the commission of the assault on her, which is obviously referred to in the words "according to her light ?" These words were calculated to mislead and confuse the jury, and, in my opinion, constitute error for which defendant is entitled to a reversal, especially where the instructions asked on his behalf were refused by the court.

In my opinion the correct rule as to resistance is laid down in People v. Dohring, 59 N. Y. 374. Further, in my opinion the court erred in not giving request No. 23 asked by defendant. Though awk

wardly expressed, it called the attention of the jury to the caution always given to it in prosecutions for rape, and which, in such cases, a court should never fail to give clearly and distinctly.

MCKINSTRY, J. I concur in the judgment. In my opinion the court erred in giving the instruction commented on by Mr. Justice THORNTON, and in permitting the prosecutrix, on her direct examination, to explain why she did not sooner make complaint of the alleged outrage. The declarations of the prosecuting witness, except so far as they simply constituted a complaint of her injury, were incompetent; but I think the record fails to show that exception was taken to the testimony.

(66 Cal. 602)

PEOPLE v. O'BRIEN.

(No. 20,041.)

Filed April 23, 1885.

CRIMINAL LAW-CROSS-EXAMINATION-DEFENDANT WITNESS IN HIS OWN BEHALF. In a criminal case, the right of cross-examination of a defendant called as a witness in his own behalf, and examined respecting a particular fact or matter in the case, is confined to the fact or matter testified to on the examination in chief; and where a more extensive cross-examination is allowed, the constitutional right of the defendant is violated, and he is entitled to a new trial. In bank. Appeal from the superior court of the city and county of San Francisco.

D. J. Murphy, for appellant.

E. C. Marshal and the Attorney General, for respondent.

MORRISON, C. J. The defendant was charged, in an information filed by the district attorney of San Francisco, with the embezzlement of a certain sum of money, to-wit, $1,000, the same being the property of the state, and on the trial he was called and examined as a witness on his own behalf. On the examination in chief his testimony was directed and confined to the alleged embezzlement of the particular sum of money mentioned in the information, but on the cross-examination he was examined generally as a witness in the case. This course of proceeding was objected to very frequently by his attorney, but the objections were as often overruled by the court, and the examination was allowed to be as general as could have been made of any other witness in the case; the district attorney, in fact, making the defendant his own witness on behalf of the prosecution. The question is, was this course of proceeding regular and proper under the law?

Section 13, art. 1, of the constitution declares that no person shall "be compelled in any criminal case to be a witness against himself." There is, therefore, no power in the court to compel a defendant in a criminal case to take the stand; and it has been held that the failure of the defendant to testify in the case is not a circumstance from which any unfavorable inference can be drawn against him; and the provision of the statute is to the same effect.

But by section 1323 of the Penal Code it is provided that "a defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offer himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. His neglect or refusal to be a witness cannot in any manner prejudice him, nor be used against him on the trial or proceeding." It is only under and by virtue of the foregoing provision of the Penal Code that a defendant in a criminal prosecution can be a witness at all, and when he is called on his own behalf and examined respecting a particular fact or matter in the case, the right of cross-examination is confined to the fact or matter testified to on the examination in chief. Such is the express language of the statute; and when the court, as it did in the case at bar, al

lowed the prosecution to make the defendant a general witness in its behalf, it invaded a right secured to the defendant not only by the statute but by the constitution.

For this error the judgment and order are reversed, and the cause remanded for a new trial.

We concur: MCKINSTRY, J.; MYRICK, J.; SHARPSTEIN, J.

MCKEE, J. I dissent. I dissent. No person accused of crime can be compelled to testify against himself, nor can any witness be compelled to give evidence which would tend to criminate himself. But these are rights which may be waived; and when a defendant in a criminal action testifies in his own behalf he waives his right, and becomes a witness in the case, subject to be examined and cross-examined as any other witness. This, as I understand it, is the established doctrine upon the subject in the courts of all the states where a defendant in a criminal action is permitted to avail himself of the privilege of testifying. Say the supreme court of New York:

"While it is at the option of one on trial upon an indictment for a criminal offense to become a witness, and while his refusal or neglect to testify will not create a presumption against him, yet when he has exercised his option, and has chosen to become a witness, he is competent for all purposes in the case; and if by his own testimony he can, if innocent, explain and rebut a fact tending to show his guilt, and he fails so to do, the same presumption arises from his failure as would from the failure of another witness if it was in his power." Stover v. State, 56 N. Y. 315.

By availing himself of the privilege of testifying in his own behalf the defendant, therefore, voluntarily assumed the character of a witness, and he became subject to every rule adopted by the court for the purposes of cross-examination. People v. Reinhart, 39 Cal. 449; People v. Russell, 46 Cal. 121; People v. Benson, 52 Cal. 380; People v. Beck, 58 Cal. 212. Upon his cross-examination he could not interpose his privilege, and object to answer any question asked of him in legitimate cross-examination. Com. v. Price, 10 Gray, 472; Com. v. Nichols, 114 Mass. 286; Norfolk v. Gaylord, 28 Conn. 309.

Now the general rule applicable to the cross-examination of a witness is that he may be cross-examined as to any facts and circumstances connected with matters testified to by him on his direct examination. This rule is applicable to the examination of a witness. testifying in a criminal or civil action. Section 1323, Penal Code, and section 2048, C. C. P. Under this rule we have invariably held that a defendant testifying in his own behalf may be, in cross-examination, questioned as to any matters connected with the facts to which he testified in his direct examination, (People v. Russell, supra,) or any matter tending to show bias against the party conducting the examination, (People v. Benson, supra,) or as to whether he has been previously convicted of certain criminal offenses, (People v. Chin Mook Sow, 51 Cal. 597;) and the record of his convictions may be given in

evidence against him; and if he has given testimony at his preliminary examination, the same may be given in evidence against him on his trial for the same offense. People v. Kelley, 47 Cal. 125.

The cross-examination of a witness is a matter which the law trusts to the discretion of the presiding judge. Generally, the rulings of the judge upon questions connected with the examination are not regarded as the legitimate subject of exception. 1 Greenl. Ev. 445. It is only where there is an apparent abuse of discretion that an appellate court inteferes. The object of all examinations is to elicit the whole truth, and not a part of it, and the conscience of the witness is bound by an oath to that effect.

It is no answer to say that a witness cannot be compelled to criminate himself, or to answer questions 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 a personal privilege of which he must avail himself. If he does not, he waives it, and is bound to answer.

It is legitimate cross-examination to inquire as to the commission of offenses so connected with the offense for which a party is on trial, and as to which he has testified in his direct examination, as to form part of the transaction in which the crime or offense for which he is on trial was committed. This question has been considered and decided in the case of People v. Gray, 5 PAC. REP. 240. I think the doctrine of that case is sound in law, and it is applicable to the crossexamination of a defendant in a criminal action who has waived his privilege and testified in his own behalf. In State v. Witham, 72 Me. 535, it was objected that a defendant in a criminal prosecution was subjected to cross-examination as to acts happening both before and after the principal act complained of. "Formerly," says the supreme court of that state, "the objection might have been regarded favorably in many courts. Latterly, however, courts and text writers are rapidly falling in with the view that acts prior and also subsequent to the act charged in the indictment, when indicating a continuousness of illicit intercourse, are admissible in evidence as showing the relation and mutual disposition of the parties; the reception of such evidence to be largely controlled by the judge who tries the cause, and the evidence to be submitted to the jury with proper explanation of its purpose and effect. We think this doctrine is most in accordance with the logic of the law and with the authorities. The same rule applies where intent, or system, or scienter may be involved as illustrated in successive cheats or forgeries, or passing counterfeit money to different persons, and the like; the doctrine concerning which classes of crime may be found elaborately illustrated and supported in the text and cases cited in Whart. Crim. Ev. § 31, and sections following; and in 1 Greenl. Ev. §§ 53, 451, 454, and notes."

The defendant did not object to answer any of the questions asked by the district attorney on the ground that it would tend to criminate.

him; and as the questions involved matters connected with the transaction to which he had testified in his direct examination, the questions were legitimate cross-examination. "When a defendant volunteers to testify in his own behalf, upon the issue whether the alleged crime had been committed or not, he volunteers to testify in full. His oath in such case requires it. If he waives the constitutional privilege at all, he waives it all. He cannot retire under shelter when danger comes. The door opened by him is shut against retreat.' State v. Witham, supra.

THORNTON, J. I concur in the foregoing opinion, except that portion of it in relation to People v. Gray.

(66 Cal. 594)

PEOPLE ex rel. HAMILTON v. BARNES. (No. 20,035.)

Filed April 23, 1885.

CRIMINAL LAW-MANDAMUS TO COMPEL PRELIMINARY EXAMINATION.

It is the duty of a justice of the peace to institute a preliminary examination in the case of a person regularly charged with having committed a public offense, and arrested and brought before him; and on refusal he may be compelled to do so by writ of mandate. A refusal to make an examination is not justitied by the mere statement of defendant's counsel that such an examination for the same offense had been had before another magistrate, and the defendant held to answer thereon.

In bank. Application for mandamus.
Thomas Rutlege, for petitioner.

J. A. Cooper, for respondent.

THORNTON, J. On the eighteenth of September, 1884, Charles W. Finney and Thomas C. B. Finney were arrested upon a warrant duly issued by the defendant, Barnes, then, and for some time prior thereto, a justice of the peace for the county of Mendocino. The warrant was issued on a sworn complaint, duly verified before the justice above named by William Wallach, on the seventeenth of the month last named, charging the parties whose arrest is mentioned above, in apt language, with the crime of murder, committed in the county above named on one Frank Wallach. The parties arrested were regularly brought before the respondent, as a magistrate, on the eighteenth day of September, 1884, by the proper officer that the examination, required by law might be had. The justice informed them of the charge against them, and gave them all the information required by the statute on such proceeding. Penal Code, § 858. All proceedings had before the justice as regards these parties were regular up to the twenty-second day of the month named above, to the hour of 10 o'clock. A. M. of which day the examination had, by consent of all parties, been postponed.

At this time the parties arrested appeared before the justice with their counsel, when the complaint was read to them. At this stage of the proceeding the prisoners, by their counsel, objected in writing