
    Howel v. The Commonwealth.
    1. In indictments for statutory offences, the language of the statute defining the offence, should be strictly followed.
    2. In an indictment for arson under the 4th section of the statute, 1 Rev. Code, ch. 160, p. 587, it is not sufficient to use the words “set fire to” the house; but the word “hum/’ must be used: That being the word' employed in that section of the statute to define the offence.
    3. On a prosecution for felony, the counsel for the prisoner will not be allowed, on the cross-examination of a female witness for the Commonwealth, to ask her, “ whether she is not generally reputed in the country to be a woman of unchaste habits ? or whether she was not, or had not been unchaste ?”
    4. In such case, the counsel for the prisoner having, on cross-examination of a female witness, asked her if she was married, will not be allowed to ask her, “ How old her youngest child was ? or whether the said child was not a bastard ?”
    5. Upon such cross-examination, the counsel will not be permitted to ask the witness, “ If she had not been found with stolen goods in her possession ?”
    6. On such cross-examination, witness was asked, if whilst she lived with B, she was not accused of stealing or taking things not her own ? and whether, when she left there, she was not followed, and the things taken from her P It was proper for the Court to inform the witness she was not bound to answer the question unless she thought proper.
    
      7. Upon a question addressed to the Court, the Judge is not bound to hear an argument from the prisoner’s counsel, if his opinion is already formed.
    8. Whether a witness for the Commonwealth, who has been examined and cross-examined, and told to stand aside, shall he again examined as to another matter, by the attorney for the Commonwealth, must be referred to the sound discretion of the Court.
    The facts of the case are sufficiently stated in the opinion of the Court, delivered by Lomax, J.
    
    The prisoner was indicted in the Circuit Court of Wood, for arson. The first count charged, that she did “feloniously, unlawfully, willingly and maliciously set fire to and burn a certain mill-house of one Fidelias Ott," &c. The second count charged that she did “ feloniously, maliciously, unlawfully, and willingly set fire to a certain other house of the said Fidelias Ott," &c. These are the only counts in the indictment, and both conclude against the form of the statute, &c. The prisoner, upon her arraignment, demurred generally to the indictment, and to each count thereof; and there being a joinder in demurrer, the indictment, and each count thereof, was adjudged to be good and sufficient — whereupon the prisoner pleaded not guilty, and she was put upon her trial.
    Three bills of exception, in the progress of the trial, were taken by the prisoner to matters of testimony. The Court, upon the cross-examination of a female witness that had been examined on the part of the prosecution, refused to allow the following questions to be propounded to her: “ Whether she is not generally reputed in the country to be a woman of unchaste habits; and whether she was not, or had not been, unchaste ?” The Court stated, upon the bill of exceptions, as the ground for its judgment in this refusal, “ that the questions tended immediately and directly to degrade and disgrace the witness. And the Court was further of opinion, that the morals of the country require that parties should not be permitted to ask such questions of female witnesses ; and that, if virtuous females could be thus tortured by questions in relation to their chastity, it would be impossible to procure their testimony, unless by compulsory process, and would lead to conflicts and violence between counsel and suitors, and the husbands, brothers and fathers of such witnesses.” The Court also refused to allow the prisoner’s counsel, on cross-examination, to ask another female witness, who had been examined for the Commonwealth, (she having previously answered in the negative, a question, “ if she was married ?” that was put to her by the prisoner’s counsel,) “How old her youngest child was ?” and “ whether the said child was not a bastard ?” The Court moreover refused to allow the prisoner’s counsel to ask this last witness, upon her cross-examination, “ if she had not been found with stolen goods in her possession ?”
    The foregoing matters of exception bring up for consideration, the extent of the privilege, upon cross-examination, of interrogating witnesses as to matters having a tendency only to degrade their own character. Upon this subject there has been great confusion in the cases; and no little difficulty in arriving at any rule, as established by the authorities. This doctrine will be found treated of in 2 Russ. Cri. 625, &c.; Archb. Cr. PI. and Ev. 143; Roscoe’s Cr. Ev. 162, &c.; 1 Stark. Ev. 167-170; and has been ably reviewed by a writer of our own country, in an excellent work upon the law of evidence. 1 Greenl. L. Ev., part 3, ch. 3. After stating with much discrimination, a variety of authorities relating to questions propounded upon cross-examination tending to the crimination or disparagement of the witness who has been examined, he says, in <§> 458, “ There is another class of questions, which do not seem to come within the reasons already stated, in favour of permitting this extent of cross-examination, namely, questions, the answers to which, though they may disgrace the witness in other respects, yet will not affect the credit due to his testimony. For it is to be remembered, that the object of indulging parties in this latitude of enquiry is, that the jury may understand the character of the witness whom they are asked to believe, in order that his evidence may not pass for more than it is worth. Enquiries, therefore, having no tendency to this end, are clearly impertinent. Such are the questions frequently attempted to be put to the principal female witness, in trials for seduction, per quod servitiam amisit, and on indictments for rape, &c., whether she had not previously been criminal with other men, or with some particular person ; which are generally suppressed. Dodd v. Norris, 3 Camp. R. 519 ; Rex v. Hodgson, Russ. & Ry. R. 211; Vaughn v. Perrine, Penningt. R. 534. So on an indictment of a female prisoner, for stealing from the person in a house, the prosecutor cannot be asked, whether, at that house any thing improper passed between him and the prisoner. Rex v. Pitcher, 1 Car. & Payne 85; Rex v. Lewis, 4 Esp. Cas. 225; Arundall v. Pratt, Moo. & Man. 108. This Court approves of the doctrine as there stated by Greenleaf. It has a pointed application to the questions particularly, which were put to the female witnesses in regard to chastity, and tending to their disgrace by the seeming imputation of a want of that virtue. It may not necessarily follow, under all circumstances, that because a female may have violated her chastity, she is therefore to be denied credit. And the spirit of the same doctrine also applies to the suppressing the question, so vaguely put to one of the witnesses, whether she had not been found with stolen goods in her possession. One of these female witnesses was also asked by the prisoner’s counsel, “ If she knew a man by the name of Bonnet 1 and if she had not lived at his house ?” To which she answered, that she had heard of him, but did not know him, and that she had not lived at his house. She was then further asked, 
      “ if, whilst she lived with said Bonnet, she was not accnsed of stealing or taking things not her own ? And whether, when she left there, she was not followed and the things taken from her?” The Court, without arresting this question, informed the witness, that she was not bound to answer the question, unless she thought proper. This interference of the Court below in the cross-examination, was, in the opinion of this Court, entirely correct, whether the question propounded is regarded as tending to extort from her circumstances that might expose her to erimiual prosecution, or to degrade her character.
    It is made a ground of exception by the prisoner’s counsel, that the Court refused to allow him to argue the propriety of the questions which he had asked of one of the female witnesses, as noticed above, in relation to her chastity. Any argument that the counsel could propose to make, could only be addressed to the Court, for the purpose, exclusively, of influencing its judgment. But if that judgment was already definitively made up, there can be no legal privilege belonging to the prisoner’s counsel to exhaust the patience and time of the Court, and to interrupt the progress of the trial, by an argument which could have no effect upon the opinions of the Judge, already fixed by the previous consideration which he may have given to the subject. The Judge presiding in a Court of Justice may surely be permitted to say when his mind is fully satisfied upon any question that is raised before him, and be allowed to preclude all further discussion, when his fixed convictions render any further discussion utterly unavailing. If his opinion upon the point itself be correct in the judgment of an Appellate Court, there can surely be no error in his refusing to listen to an argument to persuade him to do wrong.
    Another ground of exception taken, is, that a witness who had, on one day of the trial, been examined on behalf of the Commonwealth, and cross-examined, and told by the Commonwealth to stand aside, was the next day recalled by the Commonwealth, before any other . . ..... . witness was examined, and certain other interrogatories propounded to him, and a further examination of him was had. The point on which the witness was this second time recalled for examination, was, as the Commonwealth’s attorney stated, a matter on which the witness was not examined the day before. It related to what the prisoner herself had said upon a particular occasion. During the former day’s examination of the witness, the Commonwealth’s attorney, as he stated, did not know of this matter, and discovered it after the witness had, the day before, been discharged; and he deemed the testimony as to this new matter important in the case. It appears by inspection of the record, that the witness was recalled upon the second day of the trial, whilst the examination of the witnesses was yet unfinished, and before the argument of the case had commenced. The record does not shew that the Commonwealth had gotten through the examination of the witnesses on her behalf, before the witness in question was called up for this further examination. The objection to the re-examination seems to consist merely in this, that after the witness had been examined and cross-examined, he was recalled, not merely for the purpose of explaining facts stated by him on cross-examination, but to testify to new facts, unconnected with his former examination and cross-examination. The re-examination by a party of his own witness, after a cross-examination by the adversary, in order to obtain evidence as to new matter, seems not to be allowable in the practice of the English Courts. Roscoe’s Or. Ev. 151. Nevertheless, it is stated, even there, if any material question has been omitted in the examination in chief, the practice is to suggest it to the Court, who will put it to the witness, or decline to do so, at its discretion. 2 Russ. Cr. 621; see also, 2 Gabb. Cr. L. 508. It would seem a most unreasonable rigour in the rule alluded to, if it shall be enforced so as to defeat justice, because of the accidental . . - , , , . omission of counsel at the regular stage to examine the witness as to this other matter, or if it were so inflexible as to preclude examination of the same witness, as to matter newly discovered, and which, therefore, could not have been searched out by enquiries when the witness was first upon the stand. This Court considers it as a matter resting in the sound discretion of the Court to allow a relaxation of the rule whenever the purposes of justice are thereby to be promoted; and we are of opinion, that upon the present occasion the Court below very properly permitted the re-examination of the witness.
   The foregoing exceptions, as for errors occurring at the trial, this Court overrules. But this Court is of opinion that there was error in the Court below, in overruling the prisoner’s demurrer to the second count of the indictment. The charge in that count is, for setting fire to a certain other house, and the offence, in the language of the statute, is to burn any house, &c.

We are not satisfied that setting fire to and burning, have been established by any legal authority to be synonymes, so as to justify, in an indictment upon the statute, the substitution of the former words in the place of the other. East, (2 Cr. L. 1020, § 2,) remarking upon the statute 9 Geo. i. ch. 22, says, that that statute does, indeed, in enacting the felony, make use of the words “set fire to,” but he was not aware of any decision which had put a larger construction on those words than prevails by the rule of the common law; and the contrary opinion may be collected (he says) from what is said in Spalding's Case (1 Leach 218), and Breeme's Case, (1 Leach 220,) and in the case of Sarah Taylor, (1 Leach 49.) With all the respect which is justly due to this writer, upon an attentive inspection of the authorities which he has referred to, it will be discovered that there is nothing in these cases which decides that these expressions are identical in their meaning. The same author, in a subsequent section, 11,) says, that at common law, it was necessary to state an actual burning, but that the statute 9 Geo. i. ch. 22, using the term “ set fire to” the house, it is now become common to state both, though (as he says) in effect meaning the same thing. (2 East 1033.) But yet in Salmon's Case, Russ. & Ry. C. C. 26, (which was a prosecution under this statute, for setting fire to a hay stack,) it was moved to arrest the judgment, on the ground that it was not averred in the indictment, that by reason of setting on fire, the stack of hay was burnt and consumed; and the point being reserved, the Judges were of opinion that the conviction was right — that it was not necessary the stack should be burned, the words of the act being set fire to.” (2 Gabb. Cr. L. 79.) This authority seems clearly to decide that setting fire to and burning are not legal synonymes. If they were, there would be no reason for that redundancy of language which is usual in the indictments under the stat. 9 Geo. i., according to the forms, laying burning as well as setting fire to. (See 3 Chit. Cr. L. 1109-1115.) In the statutory offences of arson, enacted in the 2d and 3d sections of our statute, 1 Rev. Code, ch. 160, the offences are described <l burn or set fire to but in the 4th section, under which it is that the present indictment is laid, the expression is “ burn” alone. The change in the phraseology would seem to intimate on the part of the Legislature that there was a difference in the meaning. It is not, therefore, without reason, that Mr. Davis, in his work on Criminal Law, regarded the difference in the language as distinguishing between burning and setting fire to. (Davis’ Cr. L. 117, see note q.)

It will be observed that the question of variance between the statute and the second count in the indictment being raised by a demurrer, the rules of criminal pleading must be applied to the case in all the strictness of the common law, unmitigated by the statute of jeofails, which applies to exceptions taken after verdict. In framing indictments upon statutes, as in the present case, it is in general necessary, not only to set forth on the record all the circumstances which make up the statutable definition of the offence, but also to pursue the precise and technical language in which they are expressed ; and upon this ground an indictment for rape must contain the word “ravished:” nor will any expressions of force and carnal knowledge excuse its omission. 1 Chit. Cr. L. 286; Hawk. b. 2, ch. 25, § 110; Archb. Cr. Pl. 47, &c. In one case, an exception was allowed to this rule of verbal conformity of the indictment to the language of the statute, where an indictment, in charging an accessory before the fact in murder, employed the words “ excite, procure and move,” instead of the words of the statute, “command, hire or counsel.” And the reason assigned for the departure in that case from the general principle was, that the statutes respecting accessories, make use of a great variety of terms to designate them, and therefore they may all be expressed by their legal import. Grevil’s Case, 1 Anderson’s R. 195; Fost. 130; 1 Hale 521, 2. Although in that case the departure from the words of the statute extended only to the substitution of other words which legislative usage had made synonymous, yet that case seems not to have been much favoured in the remarks which have been made upon it. Foster {130) speaks of it as the only precedent he had met with where the words of the statute have been wholly dropped; and Ckitty (1 Cr. L. 288,) says that the opinion given in that case does not seem to have ever been expressly recognized in any later decision. And he says that it is in every case advisable to attend, with the greatest nicety, to the words contained in the act; for no others can be so proper to describe the crime; the exceptions, if any, are doubtful; and the broad principie which renders a strict adherence essential, is supported by too strong a number of decisions to be shaken. The words of every statute creating an offence present a ready and convenient form in framing an indictment upon it. The substitution of other words in the place of those used in the statute cannot be too strongly discountenanced.

Upon the foregoing considerations, this Court reverses the judgment, and all the proceedings subsequent to the demurrer aforesaid ; and the cause is remanded to the Circuit Court of Wood county, with instructions to enter judgment upon the demurrer to the second count, in favour of the prisoner; and to be thence further proceeded in, and a new trial had upon the first count.-  