(after stating the facts). The first exception taken by the defendant, was to the admission by the Court of the testimony of Hunter, as to the genuineness of the handwriting of the defendant Gay.
We think the testimony of the witness Hunter, came up to the requirements of the law in such cases. He testified that he had frequently seen him writing, and that he knew his handwriting, and it was his opinion that the letter offered in evidence was in the handwriting of the defendant Gay.
The next exception, was to the refusal of the Court to compel the witness Strickland to answer the question propounded to him on cross-examination by the defendant, “if he had never had sexual intercourse with any woman, except his wife, since he was married.” The character of the witness had been proved to be excellent, and when this question was propounded, he refused to answer, on the ground that it tended to criminate and disgrace him. The question was put, as stated by defendant’s counsel, to discredit the witness. The Court refused to compel the witness to answer.
On this question, there has been a very great diversity of opinion, both in the Courts and among text writers. In this State, while it has been held that a question may be asked a witness which tends to degrade him or bring him into disgrace, it has not been directly decided that he shall be compelled to answer such questions. The case of State v. Patterson, 2 Ired., 346, and State v. Garrett, Busb., 357, were cited by the defendant’s counsel, as sustaining the doctrine. In the former case, the *819question was'referred to as doubtful, and was not directly presented, and the Court on that point only say, that “ questions to a witness, tending to disparage or disgrace him, may be asked, and cannot be objected to by the opposite party. Whether the witness is bound to answer them, is doubtful.” In the latter case, the Court, referring to the case of State v. Patterson, supra, says, “ it- is settled by that case, that such a question may be asked, and the Court in that case were inclined to the opinion, though they did not so expressly decide, that when the question tended only to the disparagement or disgrace of the witness, but not to expose him to a criminal prosecution, he was bound to answer,” and in Garrett's case, the Court goes no further than to -say : “We are inclined to think with the very eminent Judges who decided the case of State v. Patterson, that it follows as a necessary consequence, that the witness is hound to answer. But if that be not so, and it is admitted that the witness may refuse to answer, yet we hold that such refusal is the proper subject of comment to the jury.” Yet, notwithstanding these observations by the Court in that case, the witness was not compelled to answer in the Court below, and its ruling was sustained by this Court. So that, without any decision on the question, we have only the intimations of the Court, and with that exception, it is an open question in this State.
Mr. Wharton, in his work on Criminal Law, says: “ The weight of authority seems to tend to the opinion, that when the transaction to which the witness is interrogated, forms any part of the issue to be tried, the witness will be obliged to give evidence, however strongly it may reflect on his character.” On the other hand, it has been held, that “ when a witness is asked a question, the answer to which would disgrace him, but could have no bearing on the issue, except so far as it might impeach his credibility, he is priviledged from answering,” and he is supported in this view of the law by Mr. Greenleaf and Mr. Taylor, see 1 Greenleaf on Evidence, §1313, and in §1314, the author gives expression to his’own opinion-as follows: “ No doubt, eases *820may arise, when the Judge may, in the exercise of his discretion, very properly interpose to protect the witness from unnecessary and unbecoming annoyance. For instance, all inquiries into discredible transactions of a remote date, might, in general, be rightly suppressed, for the interests of justice can seldom require that the errors of a man’s life, long since repented of and forgiven by the community, should be recalled to remembrance at the pleasure of any future litigant. So, questions of alleged improprieties of conduct, which furnish no real ground for assuming that a witness who could be guilty of them, would not be a man of veracity, might very fairly be checked.”
This we think is a reasonable solution of the difficulty in coming to a correct conclusion from the conflicting opinions on this question, and the rule to be deduced is, that in all cases, questions tending only to disparage or disgrace a witness, may be propounded, provided they are limited to particular acts, but even, then, when it is apparent to the Court that they are put for the purpose merely of annoying or harrassing the witness, the Court may, in its discretion, refuse to compel him to answer them— though should the witness decline to answer, his refusal may be a legitimate subject of comment before the jury. But in no case do we think it is allowable to put such a question in the general form in which it was propounded in this case.
The third and fourth exceptions are not to be considered, as the Court ruled out all the evidence upon which they are founded.
The last exception of the defendant, was to that part of his Honor’s charge, in which he alluded to the testimony of Strickland, upon the ground as alleged, that it was in violation of the Act of 1796.- We do not think the charge is obnoxious to the objection.
The witness Mary Patterson, had sworn that Strickland had had connection with her, and was the father of her child. The witness Strickland swore that he was not the father of her child, and had never had sexual intercourse with her, and his general *821character was proved to be excellent, and after the witness Mary Patterson had sworn that Strickland was the father of her child, it was testified by the witness Hunter, that she had admitted to him that Gay was the father.
In charging the jury, his Honor, in substance, told them in the out-set, that he had no right to express an opinion upon the weight of the testimony. That when a witness had proved a good character, as Strickland had done, it was a matter for the jury to take into consideration, and so when a witness’ character was shown to be bad, that was a matter also to be taken into consideration, but, notwithstanding that, they were the sole judges of the facts, and could believe the whole or a part of the evidence of any witness, or reject it altogether, according to the conviction made upon their minds of the truth of the witnesses.
He refrained from expressing an opinion upon the weight of the testimony. But even if his charge could be held to mean, that the testimony of a witness who had proved a good character, was entitled to more consideration than that of a witness who is shown to be of bad character, it is a proposition in accordance with the experience of all men.
It cannot be error to state a proposition to the jury, which is universally admitted.
There is no error. Let this be certified to the Superior Court of Wake county, that further proceedings may be had according to law.
No error. Affirmed.