The question is presented whether a prisoner who is sworn as a witness at his own request can be compelled to answer questions upon his cross-examination, as to facts affecting his credibility, in relation to which he was not questioned on his direct examination.
The question objected to was, "How many times have you been arrested?" It was within the discretion of the court to allow such a question to a witness. It was not claimed to be privileged, but it was objected that the witness was protected from answering it by the constitutional provision "that no person shall be compelled in any criminal case to be a witness against himself." We think the decision of this court in Brandon v.The People (42 N.Y., 265), should be controlling upon this point.
The question was substantially the same, and although the objection was put upon a different ground, yet the decision was placed upon a principle which disposes of this case. That principle was, that by consenting to be a witness in his own behalf under the statute of 1869 the accused subjected himself to the same rules and was called upon to submit to the same tests which could by law be applied to the other witnesses; in other words, if he availed himself of the privilege of the act, he assumed the burdens necessarily incident to the position. The prohibition in the Constitution is against compelling an accused person to become a witness against himself. If he consents to become a witness in the case voluntarily, and without any compulsion, it would seem to follow that he occupies for the time being the position of a witness with all its rights and privileges, and subject to all its duties and obligations. If he gives evidence, which bears against himself, it results from his voluntary act of becoming a witness, and not from compulsion. His own act is the primary cause, and if that was voluntary, he has no reason to complain.
The point was not made that the whole act of 1869 was unconstitutional, and we are not therefore called upon to decide it, and we disclaim an intention to intimate an opinion in relation to it. *Page 243
The act is not regarded with much favor by the bench, bar or the people, and whether by its terms it evades the constitutional provision, or in substance and practical effect violates it, is a question which will be considered when it is presented. (Ruloff's Case, 45 N.Y., 213.) We think the rule against being a witness is one which may be waived by an accused person and that it does not come within the principle upon which theCancemi Case (18 N.Y., 128) was determined. In order to present the constitutional question, a distinct ruling and exception are requisite.
The judgment must be affirmed.
All concur.
Judgment affirmed.