given in evidence on the part of the prosecution, so he himself in his defence may in some cases prove other acts and declarations of his own as evidence of his innocence. Thus on a charge of murder, expressions of good-will, and acts of kindness, on the part of the prisoner towards the deceased, are always considered important evidence, as showing what was his general disposition towards the deceased, from which the court may be led to conclude, that his intention could not have been what the charge imputes.' The rule is clear and general, that no question can be put which is not relevant to the issue (unless for the purpose of impeaching the credit of a witness); but the applicability of the rule must obviously depend upon the particular circumstances of each individual case, and will not admit of a general demonstration. character. In all criminal prosecutions the prisoner is always Evidence of permitted to call witnesses to speak to his general character, who are usually examined in his behalf, as to how long they have known him, and what his general character for honesty, humanity, or peaceable conduct (according to the nature of the offence charged) has been during that time. The inquiry ought manifestly to bear some analogy and reference to the nature of the charge against the prisoner; on a charge of stealing, it would be irrelevant, and absurd to inquire into his loyalty, or humanity—on a charge of high treason it would be equally absurd to inquire into his honesty and punctuality in 1 1 Phill. Ev. 470. Incompetency of defendant. When codefendants admissible witnesses. private dealings. The inquiry must also be made with reference to the general character of the prisoner; for it is general character alone which can afford any test of general conduct, or raise a presumption that the person who had maintained a fair reputation down to a certain period, would not then begin to act an unworthy part; and therefore proof of particular transactions in which the prisoner may have been concerned is inadmissible.' : SECTION VII. OF THE COMPETENCY OF WITNESSES. The defendant, or any person jointly named and included with him in the charge, cannot be allowed to give evidence on the trial: but where two or more persons are included in the same charge, and one of them pleads guilty, he will be an admissible witness either for the Crown or the other defendants in like manner where there is no evidence materially affecting one or more of several defendants, it is customary to direct the acquittal of those who are not affected, so as to give an opportunity to the other defendant or defendants to avail themselves of their testimony. Thus, on the trial of the mutineers of the "Bounty " before a naval court-martial in 1792, Norman, one of the prisoners, was not materially affected by the evidence for the prosecution, and it was proposed on the part of the other prisoners to take his acquittal, and call him 1 1 Phill. Ev. 469. 3 2 6 & 7 Vict. c. 85, and 14 & 15 Vict. c. 99, s. 3. 3 Arch. Cr. L. 227. as a witness for the defence. The court-martial refused the application; but on the case being laid before the law officers of the Crown, the Board of Admiralty was advised that the application ought to have been acceded to.1 All other persons, with the exception of husband and wife for, or against, each other (save for the prosecution in cases of personal injury done by one to the other), are admissible witnesses, who have the use of their reason, and such religious belief as to feel the obligation of an oath.2 tency of Lunatics are incompetent, that is, persons usually Incompemad; but if they have intervals of reason, during lunatics. these lucid intervals they will be competent.3 With respect to children, the rule is, that their competency does not depend upon their age; but that a child of any age may be examined, if capable of distinguishing between good and evil; but whatever be its age it cannot be examined without being sworn. Whether the infant be competent or not, is a question for the discretion of the court. Before a child is examined, the court must be satisfied that the child feels the binding obligation of an oath from the general course of its religious education.1 Of infants. Atheists are incompetent from defect of religious of atheists. belief. The rule as now settled, appears to be, that as far as regards this kind of incompetency, infidels of this, and all other countries, who yet believe in a God, the avenger of falsehood, are admissible 12 McArthur, 377. 32 Taylor, Ev 1074. Method of administering the oath. Form of the oath. as witnesses; and the only persons incompetent, are those who do not believe in the existence of an omniscient Supreme Being, who is the rewarder of truth, and avenger of falsehood.1 "Such infidels," says Lord C. J. Willes, "who either do not believe in a God, or if they do, do not think that he will either reward or punish them in this world or the next, cannot be witnesses in any case, nor under any circumstances, for this plain reason, because an oath cannot possibly be any tie or obligation to them." The proper method, however, of administering the oath, must vary according to that which the proposed witness himself considers most obligatory; for as the purpose is to bind his conscience, every man of every religion should be bound by that form which he himself thinks will bind his own conscience most. Therefore, a Mahometan should be sworn on the Alcoran; a Jew on the Pentateuch, with his head covered; Brahmins, Budhists, &c., according to their own peculiar forms.3 The oath prescribed for witnesses before courtsmartial is as follows: "I, A. B., do most solemnly swear, that in the evidence I shall give before the court on the present trial, I will, whether it be favourable, or unfavourable to the prisoner, declare the truth, the whole truth, and nothing but the truth; so help me God." 4 12 Taylor, Ev. 1078. 2 Omichund v. Barker, 1 Smith's Lead. Ca. 204. 3 2 Russ. 971. A solemn affirmation may 4 Queen's Regs. C. M. art. 11. be taken instead of an oath by Quakers, Moravians, or Separatists, communica tions. But this form of oath, absolute as it seems, must Privileged be taken with an implied reservation, that the witness is not to disclose any facts within his knowledge, which by the law of the land, founded on considerations of justice and of public policy, he is forbidden to make known. Of such a nature are professional communications between a client and his attorney, solicitor, or counsel, and matters connected with the government of the country.' The privilege is strictly confined to communications made to counsel, solicitors, and attorneys. No other, however confidential, or whatever be the relation or employment of the party entrusted, are privileged. Therefore all other professional persons, whether physicians, surgeons, or clergymen, are bound to disclose the matters confided to them. Thus, where the prisoner being a papist, had made a confession before a Protestant clergyman of the crime for which he was indicted, that confession was permitted to be given in evidence on the trial, and the prisoner was convicted and executed. a confession to a papist priest has been held not to So or persons who have been Quakers or Moravians. 3 & 4 Wm. 4, c. 49, and 1 & 2 Vict. c. 77. The form of affirmation is as follows: "I, A. B., being one of the people called Quakers (or one 1 2 Russ. 902. 2 In Broad v. Pitt, 3 C. & P. 518. Best, C. J., after recognizing this decision said, "I for one will never compel a clergyman to disclose communications made to him by a prisoner, but if he chooses to disclose them, I shall receive them in evidence." |