I concur in the judgment and in the opinion of Mr. Justice Van Dyke, except that I do not agree that questions irrelevant to the issues in a case, asked for the purpose of discrediting the witness, can never, in the discretion of the trial judge, be asked of a witness. It is said that sections 3051 and 3053 of the Code of Civil Procedure prohibit such evidence. In express terms these sections certainly do not. It is stated that a witness may be impeached: 1. By contradictory evidence; 3. By evidence that his general reputation for honesty and integrity is bad; and 3. By proving inconsistent statements.
Other modes of impeachment are not expressly prohibited, and ever since the existence of the statute other modes have been freely resorted to. Witnesses are constantly cross-examined as to their bias, or their interest in the case, their relationship to the parties, and also as to their occupation and position in the community; also as to what persons they have conversed with about the case; whether they have been paid to attend court, et cetera. These are all matters of impeachment, and none of them fall within the modes specified in the statute. The statute has, in fact, never been treated as prohibiting other usual modes of impeachment, and if it was intended that a witness could not be impeached except in. the specified modes, there would have been no occasion for the one special negative “but not by evidence of particular wrongful acts.”
As a general rule, the cross-examination should be confined to the subject matter of the direct examination, but this rule *137necessarily cannot apply to matters of impeachment. We all agree that a witness cannot be asked questions merely for the purpose of degrading him, and while there has been much controversy as to admissibility of such evidence, no one contends that a party has an absolute right to indulge in such examination. It is not permissible to go into the former life of a witness and unnecessarily drag to light ancient scandals. The matter is almost entirely within the discretion of the trial court, and such examination should be permitted only when and so far as it seems to be required for the ends of justice.
It is said that the earlier rulings were against allowing a cross-examination for the purpose of testing the character of the witness, and yet I find in a work as early as Roscoe’s Criminal Evidence the following: “A witness may be questioned in cross-examination not only on the subject of inquiry, but upon any other subject, however remote, for the purpose of testing his character for credibility, his memory, or his accuracy.....The moment it appears that a question is being put which does not either bear upon the issue or enable the jury to judge of the value of the witness’ testimony, it is the duty of the court to interfere as well to protect the witness from what becomes an injustice or an insult as to prevent the time of the' court from being wasted,”
Greenleaf states the rule pretty much in the same way. (1 Greenleaf on Evidence, see. 459.) The question discussed by him, and which he says “has not yet been brought into direct solemn judgment,” is, whether the witness is privileged and may decline to answer. He expressly states that the question may be asked, and sees no good reason for allowing a privilege to the witness.
Rice in his work on Evidence considers the question quite elaborately. He states the rule to be that: “Such questions should be allowed when there is reason to believe it may tend to promote the ends of justice; but they may be properly excluded when a disparaging course of examination seems unjust to the witness or uncalled for by the circumstances of the particular case.” He cites the case of Great Western etc. Co. v. Loomis, 32 N. Y. 127, 88 Am. Dec. 311, where the discretion of the trial court is asserted, and in which are cited three cases tried by Lord Ellenborough, in one of which, when a witness was asked if he *138had not been tried for theft, the court ordered the witness to answer and told him he would be sent to jail if he did not. In another he told the witness he could answer or not, as he pleased, but said if he were asked such a question he would refuse to answer. In the third the judge stopped the examination and would not permit the question to be answered, although no objection was made by anyone.
The author makes it plain that there has been no such discrepancy in the English cases as has been supposed. They are nearly all cases at nisi prius, and whichever way the court held it was within the rule which lodges the discretion in the trial | judge. In the nature of the case no fixed rule for the exercise of the discretion can be laid down. In White v. McLean, 47 How. Pr. 193, is a full discussion of this subject, as also in Carroll v. State, 33 Tex. Crim. App. 431, 40 Am. St. Rep. 786, cited in the principal opinion.
In 1 Thompson on Trials, section 458, it is said that the better rule is that the trial court may allow, limit, or refuse such examination, and its ruling is not subject to review except in cases of manifest abuse (See, also, Taylor on Evidence, sec. 1314, et seq.)
In Stephens’ Digest of the Law of Evidence it is said: “Where a witness is cross-examined he may be asked any question which tends: 1. To test his accuracy, veracity or credibility; or 3. To shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant to the fact in issue, and however disgraceful to himself, except where the answer might expose him to a criminal charge”—and under our statute, it may be added, where it tends to prove particular wrongful acts. In fact, except in this state, the rule is quite uniform that in the discretion of the trial court such questions may be asked.
Nor do I admit that a different rule has been established here. Host of the cases cited have no bearing upon the general proposition. Of course, such examination is not allowable in every case. 'Where it is manifest, as in People v. Wells, 100 Cal. 463, and in People v. Un Dong, 106 Cal. 88, that the examination was not for the purpose of proving the immorality, but to prejudice *139by insulting questions, it should not he tolerated and it would he error to permit it.
In Pyle v. Piercy, 122 Cal. 383, an attempt was made to prove upon cross-examination of a married woman that she had been too intimate with her husband before their marriage. The purpose of this examination may well have been held to be to insult the witness. This court simply said: “A witness cannot be impeached in this way.” Upon the authorities, and upon principle I think, the trial judge may permit such examination when he deems that the ends of justice would he promoted by so doing; but, if he refuses, his discretion will rarely he interfered with.
Henshaw, J., and Beatty, C. J., concurred.