ing pursuant to the command of the summons or subpoena is guilty of a felony." 11 "Any person who gives or offers or promises to give to any witness or person about to be called as a witness in any matter whatever, including contests before United States land officers or townsite commissioners, any bribe upon any understanding or agreement that the testimony of such witness shall be influenced, or who attempts by any other means fraudulently to induce any witness to give false testimony is guilty of a felony; but if the offer, promise, or bribe is in any way to induce the witness to swear falsely, then it shall be held to be subornation of perjury." 12 DIVISION II-RECEPTION OF EVIDENCE § 899. Oral examination-Objections "An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness. Where any party desires to object to any question put to a witness, either before a court or tribunal or upon the taking of depositions upon notice, the ordinary objections of incompetency, irrelevancy or immateriality, shall be deemed to cover all matters ordinarily embraced within such objections and it shall not be necessary to specify further the grounds of such objections or to state the specific reasons whereby the question is so objectionable; but the court or opposing counsel may inquire of the objector wherein the question is so objectionable and the objector shall thereupon state specifically his reasons or grounds for such objections." 13 § 900. Exclusion of witnesses The fact that a witness has disobeyed an order of the court to remain outside the courtroom while the other witnesses are testifying is no ground for excluding the testimony of such witness, 11 Rev. Laws 1910, § 2230. though he may be punished for disobeying the order to remain outside.14 The court, by permitting the husband of plaintiff to remain with her in the courtroom during the trial, does not abuse its discretion, though he is a witness in her behalf.15 The principal officer of a railroad company who becomes a witness in an action against it may be excluded from the courtroom as other witnesses.16 $901. Offer of proof In order to enable a trial court to determine whether facts sought to be proven by a witness are admissible in evidence, it is proper to make an offer to prove the facts which the party assumes his question will elicit.17 Where the question asked of a witness, considered in connection with the other proceedings, fails to show that its answer would be relevant, its rejection can be assigned as error only when the court has been informed as to the nature of the testimony sought to be elicited.18 A litigant's offer of testimony is properly rejected where the materiality of the lost instrument about which he proposes to testify is not disclosed.19 Where counsel offering an instrument in evidence states the 14 State v. Falk, 26 P. 1023, 46 Kan. 498; Barber v. 167 P. 1044. Emery, 101 Kan. 314, 15 First Nat. Bank v. Knoll, 52 P. 619, 7 Kan. App. 352. 17 Eagon v. Eagon, 57 P. 942, 60 Kan. 697. Where an objection to evidence is sustained, and it is not apparent that such question is proper, the ruling will not be deemed erroneous unless it is made to appear by offer of proof or otherwise what facts are expected to be elicited by such question. Judy v. Buck, 82 P. 1104, 72 Kan. 106. 18 Marshall v. Marshall, 80 P. 629, 71 Kan. 313. A ruling sustaining an objection to a question which might have been held to be directed to an issue not made by the pleadings cannot be reversed because it was susceptible of an answer which would have been competent upon another matter, where no statement was made of the character of the evidence sought to be elicited. Hager v. Donovan, 88 P. 637, 75 Kan. 43. The exclusion of questions asked a witness upon objection will not be deemed erroneous where no testimony was given, no offer of proof made, and the question did not clearly indicate the nature of the testimony sought to be elicited. Harper v. Harper, 113 P. 300, 83 Kan. 761. 19 Work v. Work, 136 P. 236, 90 Kan, 683. purpose thereof, and it is inadmissible for that purpose, its rejection is not reversible error, though it might have been admissible for another purpose.20 § 902. Restricting to special purpose Evidence, admissible to establish one phase of a case, and not of another, may be received, and its application limited in the instructions to the purpose for which it is competent.21 Where evidence is incompetent as original testimony, but competent as impeaching testimony, it is not error to admit it as impeaching testimony, though it is objected to as incompetent.22 903. Withdrawal of evidence Where certain evidence is offered and objection thereto overruled, and after the jury have retired, and before a verdict is reached, the court, on reflection, concludes that the evidence was improper, and calls the jury into open court and by a written instruction withdraws the evidence, if such evidence was improper, the action of the court in withdrawing the same is not reversible er § 904. Limiting number of witnesses The court in its discretion, and with proper notice to the parties, may limit the number of witnesses to be introduced on each side to prove plaintiff's general reputation for honesty and integrity, and may likewise limit the number of expert or opinion wit 20 Spaulding v. Beidleman, 60 Okl. 183, 160 P. 1120. 21 State v. Cowan, 164 P. 183, 100 Kan. 180. 25 On the trial of a suit to enjoin county commissioners from purchasing a poor farm, where the principal issue was as to whether an election, at which it was decided to purchase a poor farm, was valid, the court limited the number of witnesses who might testify as to the value of the land purchased by the county board for a poor farm to six on each side. Such limitation is not erroneous. State v. Board of Com'rs of Pratt County, 42 Kan. 641, 22 P. 722. (809) § 905. Order of proof The order in which evidence shall be received is largely within trial court's discretion.26 Thus evidence admissible in chief may be introduced out of its regular order, where the court believes such course proper in facilitating the dispatch of business,27 or the court may reopen the case after both sides have closed.28 A defendant, having the burden of proof, is entitled to first produce his testimony; 29 but this right may be waived by delay in claiming same.30 Where, in an action to recover a balance due on a written contract, defendant confessed the contract and original liability, but pleaded defenses other than payment, and at the commencement of the trial the court ruled that the burden was on defendant, it was not error, on defendant's failure to establish his defenses, but on its proof that the amount due was less than the amount claimed by plaintiff, to permit plaintiff to testify as to the amount due.31 § 906. Preliminary proof 31 When it is necessary to prove that the husband of plaintiff was her agent in order to render him competent, he may testify to a preliminary question that he acted as her agent, and after such tes 26 McKee v. Jolly (Okl.) 178 P. 656; Wilson v. Moran (Okl.) 197 P. 1051; Barricklow v. Boice, 50 Okl. 260, 150 P. 1094; McBride v. Steinweden, 83 P. 822, 72 Kan. 508; Standifer v. Sullivan, 30 Okl. 365, 120 P. 624; Ackerman v. C. C. Chapell Hardware Co., 137 P. 349, 41 Okl. 275; Rains v. Weiler, 101 Kan. 294, 166 P. 235, L. R. A. 1917F, 571; Lamont Mercantile Co. v. Piburn, 51 Okl. 618, 152 P. 112. 27 Stetler v. Boling, 52 Okl. 214, 152 P. 452. 28 Winfield v. State (Okl. Cr. App.) 191 P. 609; Felice v. State (Okl. Cr. App.) 194 P. 251. 29 Wilson v. Moran (Okl.) 197 P. 1051. 30 Congdon v. McAlester Carriage & Wagon Factory, 56 Okl. 201, 155 P. 597. Where defendant failed, until after opening statements were made and introduction of some evidence, to claim his right to submit his evidence first, the question of granting or refusing his request rested in the court's discretion. Id. Where defendant, in the course of his testimony, offers a tax deed, and the court then permits plaintiff to introduce evidence that the tax deed is void, the court has not so abused its discretion, in regard to the order of trial as to require a reversal. Board of Regents of State Agricultural College v. Linscott, 1 P. 81, 30 Kan. 240. 31 Higgins v. Street, 92 P. 155, 19 Okl. 42, timony it is not improper to permit him to give testimony as to the object of his agency.32 Where the authority of the owner's agent was not shown, the trial court, in the owner's action of ejectment, properly rejected evidence of an agreement made by the alleged agent with regard to a boundary line.33 § 907. Rebuttal and surrebuttal 34 It is within discretion of trial court to admit in rebuttal facts which should have been offered in chief, and the exclusion of such evidence is not error. 35 After defendant has rested his case, and plaintiff has given impeaching evidence in rebuttal, defendant is not entitled, as a matter of right, to open up his defense, and give further evidence in support thereof, 36 § 908. Reopening case A request to reopen a case for the introduction of evidence is addressed largely to the sound discretion of the court,37 even after a demurrer to the evidence has been interposed.38 32 Chicago, R. I. & P. Ry. Co. v. Cotton, 62 Okl. 168, 162 P. 763. 33 Peyton v. Waters, 104 Kan. 81, 177 P. 525. 34 State v. Stout, 101 Kan. 600, 168 P. 853. In an action against driver of automobile for killing a boy, charging driver's negligence in going too fast, plaintiff's expert testimony that under circumstances testified to by defendant the first brake would have stopped car within two feet, if going only six or eight miles an hour, and that twenty feet traveled before stopping indicated an initial speed of thirty to forty miles an hour, is proper in rebuttal. Eames v. Clark, 104 Kan. 65, 177 P. 540. Where plaintiff testified that steam was escaping from the top and bottom of defendant's engine and defendant's witness testified that steam could not escape from below on account of the mechanical construction of the engine, it was error to exclude testimony in rebuttal that steam could escape from below. Talliaferro v. Atchison, T. & S. F. Ry. Co., 61 Okl. 27, 160 P. 69. 35 Prosser v. Pretzel, 55 P. 854, 8 Kan. App. 856. 36 Meixell v. Kirkpatrick, 6 P. 241, 33 Kan. 282, 37 Federal Life Ins. Co. v. Whitehead (Okl.) 174 P. 784; St. Louis & S. F. R. Co. v. Long, 137 P. 1156, 41 Okl. 177, Ann. Cas. 1915C, 432. It is within discretion of trial court to reopen case any time before final submission and permit either side to offer evidence. State v. Stout, 101 Kan. 600, 168 P. 853. Where court, after parties had rested, reopened case and allowed further testimony over plaintiff's objection that its witnesses on that subject had left 38 See note 38 on following page. |