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v. United States, 115 Fed. Rep. 3; Howard v. People, 96 Illinois, 492; Gifford v. People, 83 Illinois, 210; Buel v. State, 104 Wisconsin, 132; People v. Molineaux, 62 L. R. A. 345, 347, notes. Even if such questions which had been put to Adams on cross-examination were answered in the negative, it is still error to allow the questions to be propounded. Bates v. State, 60 Arkansas, 450; Gale v. People, 26 Michigan, 161; People v. Wells, 100 California, 459. It can hardly be controverted that any other witness would not be allowed to testify as to the matter concerning which Adams was cross-examined. Smith v. United States, 161 U. S. 85. See also Morrison v. Pettybone, 87 Fed. Rep. 320.

The words of the district attorney complained of were prejudicial to the defendants and the comments of the court only served to disparage counsel for defendant in the minds of the jury.

The Solicitor General for the United States:

The right of the prosecution to stand jurors aside temporarily has always been widely recognized. It originated with the Statute of 33d Edw. I, which took away the unlimited peremptory challenges by the Crown and required the prosecution to challenge for cause, although the cause need not be shown until the panel was gone through. If the panel is exhausted before the jury is complete, jurors set aside must be called and must serve unless challenged by either side. United States v. Marchant, 12 Wheat. 480; United States v. Wilson, 1 Baldw. 82; United States v. Douglass, 2 Blatchf. 207; State v. Benton, 19 N. Car. 196. The rule is not changed by the allowance of peremptory challenge to the prosecution. Warren v. Commonwealth, 1 Wright, 45; Haines v. Commonwealth, 100 Pa. St. 317; Smith v. Commonwealth, 100 Pa. St. 324; Rudy v. Commonwealth, 128 Pa. St. 500; Commonwealth v. O'Brien, 140 Pa. St. 555; State v. McNinch, 12 S. Car. 89; State v. Stephens, 13 S. Car. 285. The principle has been firmly established in North Carolina from an early day. State v. Craton, 6 Ired. 164; State v. Arthur, 13 N. Car. 217; State

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v. Benton, 19 N. Car. 196; State v. Bone, 52 N. Car. 121; State v. Jones, 88 N. Car. 1671; State v. Gooch, 94 N. Car. 982; State v. Hensley, 94 N. Car. 1021; State v. Sloan, 97 N. Car. 499. The Federal practice in this respect should conform to state law. United States v. Shackleford, 18 How. 588; Lewis v. United States, 146 U. S. 370, 379; Pointer v. United States, 151 U. S. 396, 407.

The rule is reasonable and is subject to the discretion of the court to prevent the right from being exercised unreasonably. It was not exercised unreasonably in this case; defendants were in no way prejudiced; neither the Government nor the defense had exhausted their peremptory challenges when the jury was impaneled; the prisoners obtained a trial by a fair and impartial jury from those who remained on the panel, which is all they were entitled to. Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, and cases cited; Hayes v. Missouri, 120 U. S. 68, 71; Brown v. New Jersey, 175 U. S. 172, 175. The challenge to the array came too late. Such objections must be made before the jury is impaneled. United States v. Butler, 1 Hughes, 457; Gropp v. People, 67 Illinois, 154; Mueller v. Rebhan, 94 Illinois, 147; Goodman v. Goetz, 36 N. Y. 731; Jackson v. State, 4 Tex. App. 292; State v. Douglass, 63 N. Car. 500. In cases where jurors have been summoned irregularly it has been held that challenge to the array is not tenable where there was a plea of not guilty, where defendants have not exhausted their peremptory challenges, and where no positive injury has resulted. United States v. Cornell, 2 Mason, 91; Commonwealth v. Seybert, 4 Pa. Co. Ct. Rep. 152; Goodland v. LeClair, 78 Wisconsin, 176; People v. Burgess, 153 N. Y. 561; Wilhelm v. People, 72 Illinois, 468; People v. Madison Co., 125 Illinois, 334; State v. McElmurray, 3 Strobh. L. (S. Car.) 337; Franklin v. State, 34 Tex. App. 89; State v. Clyburn, 16 S. Car. 375; State v. Price, 10 Rich. (S. Car.) 356; State v. McQuaige, 5 S. Car. 429.

The court performed its whole duty in the matter of the objectionable remarks of the district attorney by interposing

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and admonishing him. 1 Thompson on Trials, § 964; Graves v. United States, 150 U. S. 118; Hall v. United States, 150 U. S. 76. There are many cases showing the indulgence extended by courts to extravagant declamation and exaggeration by counsel in argument, and the rule is clear that to justify reversal the remarks must be plainly improper and of a material character. Cross v. State, 68 Alabama, 476; Pierson v. State, 18 Tex. App. 524; House v. State, 19 Tex. App. 227; Shuler v. State, 105 Indiana, 289; State v. Griffin, 87 Missouri, 608; Polin v. State, 14 Nebraska, 540; Combs v. State, 75 Indiana, 215; State v. Stark, 72 Missouri, 37. See also State v. Horner, 139 N. Car. 606.

The cross-examination of defendant Adams was proper on either of these grounds: it was clearly within the scope of the direct examination; it tended to impeach his veracity, and to show general bad character. A defendant in his witness character is on the same footing as any other witness. While in general the cross-examination of a defendant witness in a criminal case is restricted to the matter of the examinationin-chief and to matter affecting his credibility, there are authorities to the effect that a witness who is a party subjects himself to especial latitude in cross-examination, the course and extent of such cross-examination being committed to the control of the court in the exercise of a sound discretion, which is not reviewable on appeal. The rule appears to be applicable both in civil and criminal cases. Storm v. United States, 94 U. S. 76; Rea v. Missouri, 17 Wall. 532; Davis v. Coblens, 174 U. S. 719; Blitz v. United States, 153 U. S. 308; Allen v. United States, 115 Fed. Rep. 3, 11. The decisions are conflicting throughout the many jurisdictions in the United States, but the weight of authority commits the control and scope of cross-examination to the discretion of the court, and permits a witness to be impeached on cross-examination, always by questions going to his veracity, generally by questions directed at his reputation in allied respects, often by general character, and sometimes by specific instances of

misconduct. 2 Wigmore on Evidence, §§ 889-891, 922-924; see also §§ 983, 987; vol. 3, § 2277; State v. Pancoast, 35 L. R. A. 518, 527, 533. The law of North Carolina admits great latitude on cross-examination; bad character may be shown, and specific instances of misconduct. State v. Efler, 85 N. Car. 585, citing State v. Boswell, 2 Dev. 209; State v. O'Neale, 4 Ired. 88; State v. Dove, 10 Ired. 469; State v. Parks, 3 Ired. 296; State v. Thomas, 98 N. Car. 599; see also State v. Stallings, 2 Hayw. 300; and the law in that State is important and persuasive, if not controlling. Fitzpatrick v. United States, 178 U. S. 304.

But there are two reasons why the cross-examination here does not constitute reversible error: the answers to the particular questions were all in the negative, and were conclusive on the prosecution. State v. Pancoast, 35 L. R. A. 533, citing Rice on Ev. § 222. See also People v. Jackson, 3 Park. Cr. 391; Oxier v. United States, 38 S. W. Rep. 331; Newcomb v. Griswold, 24 N. Y. 298; 1 Starkie on Ev. 190. Counsel did not follow their objection to the questions by requesting the court to charge the jury, if the testimony were admitted, that it could only be considered by them on the question of veracity; defendants must be held to have waived further objection by not taking this course, and the court was not bound to give instructions upon that particular question since they were not requested. Commonwealth v. Kneeland, 20 Pick. 206, 222; Hodge v. State, 85 Indiana, 561; Powers v. State, 87 Indiana, 144, 153; Edwards v. State, 47 Mississippi, 581, 589; 2 Thompson on Trials, §§ 2339, 2341, 2343.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

The first question to be noticed in this case arises by reason of these facts: When the case was called for trial the clerk proceeded to call the names of the jurors, and the record shows that:

"While the jury was being impaneled several jurors were called, and as each juror appeared he was told by the district attorney to stand at the foot of the panel, without any challenge on the part of the Government and without an opportunity given to defendants to accept, challenge for favor or cause, or to peremptorily challenge any and all of said jurors so stood aside.

"To each and to every action in this respect on the part of the Government the defendants promptly and in due time objected, but the court overruled the objections, saying the state practice would be followed, and there was no United States statute on the subject; to which ruling of the court the defendants, by their counsel, then and there duly excepted, and the exceptions were allowed. It appeared that neither the Government nor the defense had exhausted all their peremptory challenges when the jury was impaneled."

The inquiry is, whether the court had the power to permit such conditional challenge by the Government?

The origin of this practice is stated by Mr. Justice Field in delivering the opinion of the court in Hayes v. Missouri, 120 U. S. 68, 71. It is there said:

"Originally, by the common law, the Crown could challenge peremptorily without limitation as to number. By act of Parliament passed in the time of Edward the First, the right to challenge was restricted to challenges for cause. But, by a rule of court, the Crown was not obliged to show cause until the whole panel was called. Those not accepted on the call were directed to stand aside. If, when the panel was gone through, a full jury was obtained, it was taken for the trial. If, however, a full jury was not obtained, the Crown was required to show cause against the jurors who had been directed to stand aside; and, if no sufficient cause was shown, the jury was completed from them."

The question here involved was not directly before the court in that case, but the accuracy of the statement is not questioned. It is not disputed that the practice has prevailed in