dissented, and also delivered an opinion embracing his views.
Mr. Phillips, in his work on Evidence, (vol. 2, p. 560) after stating-the ai’guments pro and con., concludes,' that upon a reyiew of the arguments, the superior force of reasoning is decidedly, with Lord Denman. The rule has been since generally acted on, in accordance with his view, by the English courts.—See Dun v. Arlett, 2 Moody & Rob, 122; ib. 153; Phil. & Am. on Ev. *78904; Rex v. Oldroyd, Rus. & Ry. 88; Rice v. New Eng. Marine Ins. Co., 4 Pick. Rep. 439; Brown v. Bellows, ib. 179; 1 Haw. 437; 6 Watts & Serg. 285.
We are disposed to regard the doctrine as maintained by Lord C. J. Denman, and sanctioned by Professor Greenleaf and Mr. Phillips, as correct, at least to the extent of allowing the inquiry to be put to the witness. Whether we would go farther and hold that another witness might be called to prove his conflicting statement, is not a question now before us, and one which we do not decide.
Although we cannot well see how the inquiry could refresh the witness’ memory, yet as the question was proper in another aspect, and no injury was illegally done the prisoner, there was no error in admitting it.
15. The defendant introduced one Sampson Clayton as a witness, andón cross-examination he was asked by the counsel for the State as to his habits of drinking.
In order to ascertain the credit due to the testimony of a witness, the jury should be informed of his opportunity for observation, the accuracy with which that observation has been conducted, the fidelity of memory with which it is related, the witness’ habits, pursuits, his conduct, disposition, situation in life, his relation to the parties, &c. Indeed, it would be impossible to define the exact limits to which a cross-examination may extend, and beyond which it may not go; for much must be left to the sound discretion of the court, regulated by the general rules of evidence, as applied to the varying circumstances of each case. — 8 Phil. Ev. 588. The great object is, to elicit the truth from the witness; and a searching cross-examination is often a most efficacious test for its discovery. “By means of it,” says Professor Greenleaf, “ the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory and description, are all fully investigated and ascertained,” &c. — 1 Greenl. Ev. § 446. Tested by the rules governing cross-examinations, it is very clear that the question propounded to this witness might not only have been entirely proper, but indispensable in arriving at his inca*79parity to have observed with accuracy the facts and circumstances about which he was called to testify.
16. The State having proved the appearance of the prisoner the evening of the day of the murder, and on the following day, the prisoner offered to prove that on the third day thereafter, while at Lebanon, on being informed of the murder of Miss Garrett, he appeared surprised; but the court, on the objection of the counsel for the prosecution, rejected the proof. In this we think the court committed no error.
We have seen that the conduct of the prisoner may be given in evidence against him, on the ground that, as against himself, a man’s conduct and representations are presumed to correspond with the truth, (2 Russ, on Cr. 739); but, as presumptions from conduct operate in the nature of admissions, the prisoner could no more make his appearance or conduct evidence, than he could his declarations or admissions.
The mind and conscience may be so overpowered by a sense of guilt, and of the awful retribution which attends it, as involuntarily to compel the person thus affected to furnish external manifestations of its existence, and such indications are properly enough received against him. Whereas, on the other hand, a person never so guilty may, at times, so far succeed in stifling his conscience, and suppressing his real emotions, as to.subject his conduct as well as his appearance, in a great ■ measure, to his volition, and thus simulate a • demeanor apparently inconsistent with guilt; and to allow such demeanor to go in evidence, at his instance, would be to permit him to manufacture evidence for himself. This also disposes of the exception to the exclusion of Sampley’s proof, that when the prisoner was informed by . him that he was suspected of the murder, he seemed astonished.
17. The defence proved by William B. Watts, that he was acquainted with the general character of Edward Stiff, who had been examined by the State, and that he would not believe him on oath in a court of justice. It appears that the State, on cross-examination of this witness, “ proved that public rumor imputed to said Stiff a bad moral character as to drinking, fighting, shooting at men, the murder of a man by the name of Gilbert, and certain publications, which were reputed false, in his newspaper.”
The prisoner then asked the witness, upon a re-examination, *80the following questions: — 1st. What other moral delinquencies public rumor attributed to said Stiff? 2d. What does rumor say in regard to these publications 1 3d. Whether the witness did not know of his own knowledge that they were false ?
These questions, upon the objection of the State, were all excluded by the court.
A witness may be impeached by cross-examination, or by proof of general character by other witnesses. If the latter mode is resorted to, the witnesses cannot bo inquired of as to particular facts, for no man can be supposed to come prepared to defend against such proof, and to elucidate and explain every transaction of his life which might be arrayed before the jury, and which, unexplained, might cast a stain or unfavorable imputation upon his character.
In the present case, however, the State brought out, upon cross-examination of the impeaching witness, the evidence of particular acts tending to impeach the character of Stiff. Why this was done, the bill of exceptions does not inform us. It may be, that they constituted tho grounds of the impeaching witness’ opinion that Stiff was not entitled to credit on his oath j but this does not appear, and the rule is, to construe the bill of exceptions most strongly against the party excepting. As the evidence is here recorded, it would seem that, after the witness Watt had been examined by the defendant touching Stiffs general character, the State, upon cross-examination, super-added proof that public rumor gave him a bad character as to several particulars, namely, as to his drinking, fighting, shooting at men, the murder of a man by the name of Gilbert, and certain publications, which were reputed false, as published in his newspaper. As to all these particulars, being new matter brought out upon the cross-examination of the State, it may be conceded the prisoner had the right to re-examine tho witness. But it is very clear that the court had the right to confine the re-examination to matter strictly rebutting. He has no right to go farther, and to introduce matter new in itself, and not explanatory of that proven by his adversary’s examination. Such was the opinion of seven out of the eight judges taken in the House of Lords in the Queen’s case, as delivered by Lord Tenterden.— 2Brod. & Bing. 291; see 1 Green. Ev. § 468, §469.
It is hardly necessary to say that the questions here excluded *81called for new matter, opening up an investigation which might have consumed days on collateral matters, which, to say the least of them, had but a remote bearing upon the cause. If the court had no power or discretion to terminate such inquiries, they might become almost interminable; for, if on the re-examination new matter is elicited, the other side may with equal propriety insist upon re-examining as to that, and to bring out new matter in turn, and so on, ad infinitum.
We therefore think the court very properly rejected the questions, and terminated the examination where it did.
18. The same witness was asked by the counsel for the prisoner this question, “ What did rumor say as to Stiff’s general character before he came to Cedar Bluff?”
If we concede, what appears to be much controverted by the authorities, that the impeaching witnesses are not confined to proof of general character for truth and veracity, but to general ■character merely, still it is clear that this question was improper. It is an attempt to prove a man’s general character at one place by what rumor said of it at a different place and time.— We know of no precedent which authorizes such proof, and it is certainly opposed to principle and legal analogies.
19. The proof offered to be made by Chisholm, that there were in the Circuit Court of Cherokee six indictments for libel against the witness Stiff, with a view of impeaching the latter, was properly excluded. We have seen that you may impeach a witness by general evidence only, and not by proof of particular facts; for, as to these, it is not presumed the party can come prepared to defend. — 2 Russ. 7 Ed., p. 939 and note z,
20. We are wholly unable to perceive how the letter written for the prisoner by the witness Stiff to Mr. Hoge, or any part of it, can be allowed as evidence for the prisoner. If offered to impeach Stiff, it was improper under the principle last above asserted ; and if offered as original testimony of the contents, it was clearly improper as being the declarations of the prisoner, or rather of Stiff made at his request, while they were in the jail together.
21. The proof offered to be made by the State that the prisoner, on the Sunday of the murder, in connection with Wm. H. Stiff, won money in playing at cards of'one Vaughan, was proper. It was giving a history of the prisoner’s acts during that *82day, a matter which might throw light upon the transaction.— At all events, we cannot undertake to say, that it was so wholly foreign from the case as to be irrelevant. What we have said in the fourth paragraph of this opinion, in respect to Asa Allen’s testimony, is equally applicable to this.
22. The interrogatories propounded upon cross-examination by the State, to Mrs. Shackleford and Miss Anthony, who were examined in chief on the part of the prisoner, clearly fall within the principles of law which we have asserted in the fifteenth paragraph of this opinion.
They sought to inform the jury as to the relation which existed between these witnesses and the prisoner, whether they were on terms of friendly intimacy — their means of knowing the facts to which they testified, and as to any bias or prejudice which might influence them. The same may be said of the cross-interrogatories to the witnesses Gaines, Cole and Counts ; they do not exceed the bounds properly assigned to a cross-examination.
28. The interrogatory propounded by the counsel for the State on the cross-examination of Jane Matheny, a witness examined by the prisoner, and who stated that she had never been married, namely: “Have you any children7” was entirely competent, as tending to establish the fact of her being a prostitute. It is unnecessary for us to decide whether she was bound to answer the question, on the ground that it might tend to criminate her. This question is not before us. The question might properly be asked, although the witness might have claimed her privilege, and have been justified in refusing to answer it. — 2 Russ, on Cr. (7 Ed.) 926-7, and notes.
The questions propounded to this witness, as to where her mother was the day Coggins swore she had shown him a shirt, and as to what she was doing the next day thereafter, and as to her declarations tending to show her intimacy with the prisoner, were proper, under the rules above laid down. The courts very properly allow much latitude in such cases, as it is not unfrequently the only means of exposing an unworthy, witness.
24. The prisoner offered Edmund Bell, the county surveyor, as a witness, who proved that he had surveyed the grounds and distances about Centre, and the routes supposed to be connected with the prisoner’s guilt, and exhibited a map of such *83survey, showing the different routes and localities mentioned in the testimony. This diagram was proved to be correct in every particular, and was introduced on the part of the prisoner, at first, without objection from the State’s counsel, who cross-examined the surveyor concerning it. The prisoner’s counsel insisted that the jury should take it with them in their retirement to consider of their verdict; but, on objection by the State, the court refusedjjto let the jury take it, upon the ground, as stated in- the bill of exceptions, that there was no evidence that the prosecutor or any one representing the State was present when the said survey was made.
The rule is, that ££a witness may use a plat, diagram or map, made in any way, to explain or make himself intelligible to a jury, though it cannot go to them as evidence.” — 4 Phil. Ev. (3 Ed.) 726, n. 376. It amounted to no more than if the witness had written down his testimony to aid his memory on the examination, and no one would contend that such memorandum, as a matter of right, could be taken by the jury. We will not say that the judge might hot, in the exercise of his discretion, have permitted the jury to take it in their retirement, but he was not bound to do so ; and although he may have predicated his refusal upon a wrong ground, we cannot say that he has exercised his discretion improperly. In other words, having a discretion, his act is not revisable on error.
25. The State offered Martin Hale to sustain the credit of Ed. Stiff.' The prisoner, on cross-examination, proved by the witness that he had taken an active .part in this prosecution, and that he cherished unfriendly feelings towards the prisoner. The State, upon re-examination of the witness as to the extent of his feelings of hostility to the prisoner, asked him ££ if his feelings towards Campbell were such as to desire to see an innocent man convicted 7” To this question the prisoner objected, but the objection being overruled, the witness answered that he had no such desire.
We are unable to perceive any error in this. It was explanatory of the witness’ state of feeling, which the cross-examination had brought out, and tended to show that, notwithstanding he was unfriendly to the prisoner, he did not desire to do him injustice by producing a conviction against the evidence.
26. The question propounded to Mr. Brindlee, on cross-*84examination by the prisoner, “whether from general rumor it was not his opinion that Stiff was a cold-blooded murderer,” and which the court rejected, requires no other response than that it called for the individual opinion of the witness, founded on rumor, respecting the guilt of Stiff as to the crime of murder. The bare statement of the proposition is.sufficient to stamp the inquiry as wholly improper.
We have thus given to the numerous exceptions, taken upon the trial in the court below, a patient investigation. Many of them seem to call in question what we regard very simple propositions of law ; but the importance of the case to the prisoner, and an earnest desire on the part of the court to see that no principle of law should be violated in his conviction, have induced us to consider every point which the record presents.
After the fullest consideration which it was possible for us to give the case, the court is unanimous in the opinion that there is no error in the record, and the sentence of conviction is consequently affirmed.