The indict ment must set forth the let ter. And the intent of the writer should be alleged correctly. Place where offence may be tried. It was decided, upon reference to the Judges, that it was necessary to set forth the threatening letter in the indictment, in order that the Court might see whether it fell within the purview of the respective statutes. It was contended, in support of the indictment, upon which the point was raised, that it pursued the words of the statute 9 Geo. I. c. 22.; (now repealed) that the defendant was charged with sending the letter "feloniously and contrary to the form of the statute;" and that those words imported that the letter was of such a nature as the statute had in view. But the Judges were of opinion that the indictment was bad in not setting forth the letter itself; and that if the words " feloniously and contrary to the form of the statute," were allowed to supply the place of the letter, it would be leaving it to the prosecutor to put his own interpretation upon it, and to the jury the construction of the matter of law. (x) 66 It was also held to be necessary that the indictment should allege an intent of the writer in sending the letter consistent with and deducible from the letter itself. It appeared in a case already mentioned that where the indictment charged that the letter was sent to extort money, and it appeared upon the face of the letter that it was sent with the view of inducing the prosecutor to give up a bill of exchange, the Judges held the allegation not to be sustained. (y) The statute 9 Geo. 1. c. 22, provided that offences against that act might be tried in any county of England; but no such provision being made with respect to offences within the other repealed statutes, the trial of such offences was governed by the general rule. Upon this rule the trial might be in the county in which the prosecutor received the letter by the post, though delivered by the prisoner and put into the post in another county. (z) And it seems that the offender might be tried in the county in which he sent the letter, though the prosecutor received it in another county. The offence of sending a threatening letter, would seem to be complete, as far as depends on the offender, by his putting the letter into the post-office to go into another county; though the party to whom it is sent afterwards receives it in the latter county. (a) The post-office marks in town or country, proved to be such, are evidence that the letters on which they appear were in the office to which those marks belong at the dates (x) Lloyd's case, ante, note (s). And the law of this case was recognized by Grose, J., in delivering the opinion of the twelve Judges in Hunter's case, 2 Leach 631. (y) Major's case, ante, 584. (z) Girdwood's case, 1 Leach 142. 2 East. P. C. c. 23. s. 4. p. 1120, ante, 582. where the letter was received by the prosecutor in Middlesex, and the trial had in that county, though the letter was delivered by the prisoner to a woman in London, and by her put into the office which was also in London. Esser's case, 2 East. P. C. c. 23. s. 7. p. 1125. where the offence was laid in Middlesex, though the letter was dated from Maidstone, in Kent, and sent by the post from Maidstone; and Lord Mansfield held that as the letter was directed to the prosecutor in Middlesex, where it was delivered, that was a sending in Middlesex, and that the whole was to be considered as the act of the defendant to the time of the delivery in that county. (a) 2 East. P. C. c. 23. s. 7. p. 1125. 3 Burn. Just. Letter. And see now 7 Geo. 4. c. 64. s. 12. Addend, to Vol. I. which the marks specify: but a mark of double postage paid on any such letter is not of itself evidence that the letter contained an inclosure. (b) From a case which was cited in a former part of this Chapter, it appears that prior and subsequent letters, from the prisoner to the party threatened, may be given in evidence as explanatory of the meaning and intent of the particular letter on which the indictment is framed. (c) (b) Rex v. Plumer, Russ. & Ry. (c) Robinson's case, ante, 579. 264. Prior and subsequent let ters may be given in evidence. BOOK THE SIXTH. OF EVIDENCE. CHAPTER THE FIRST. HOW WIT OF WITNESSES.-WHAT WITNESSES ARE COMPETENT TO GIVE EVI- Rules of evidence the same in cri BEFORE entering upon the subject of the competency of witnesses, to which the following section will be appropriated, it may be proper to pay attention to a few points applicable to the law of evidence in criminal prosecutions generally. There is no difference as to the rules of evidence between criminal and civil cases. What may be received in the one case minal as civil may be received in the other: and what is rejected in the one ought to be rejected in the other. (a) A fact must be established by the same evidence, whether it is to be followed by a criminal or a civil consequence. (b) cases. Bill of exceptions to evidence. It is doubtful whether a bill of exceptions lies in any criminal case. (c) In the case of Rex v. The Inhabitants of Preston (d) Lord Hardwicke mentioned it as a point not settled; and in the same case he said that a bill of exceptions had never been determined to lie in mere criminal proceedings though he had known it allowed in informations in the court of Exchequer. If the (a) By Abbot, J., in Rex v. Watson, 2 Stark. 155. (b) Lord Melville's case, 29 How. St. Tr. 763. (c) Sir H. Vane's case, 1 Lev. 68. S. C. Kel. 15. 1 Sid. 85. Hawk. P. C. Judge who presides at the trial shall be of opinion that there is doubt whether he may not have admitted some evidence or witness improperly, he may, in his discretion, forbear to pass sentence, or he may respite the judgment, until the opinion of the twelve judges be obtained upon a case reserved. If the case were clearly Case reserved. made out by proper evidence in such a way as to leave no doubt of the guilt of the prisoner in the mind of any reasonable man, such a conviction ought not to be set aside because some other evidence was given which ought not to have been received: but if the case without such improper evidence were not so clearly made out, and the improper evidence might be supposed to have had an effect on the minds of the jury, it would be otherwise. (e) Where the defendant has been convicted on an indictment New trial. for felony, there can be no new trial; but after a conviction for a misdemeanor, a new trial may he granted, at the instance of the defendant, where the justice of the case requires it: (ƒ) though inferior jurisdictions cannot grant a new trial upon the merits, but only for an irregularity. (g) Where several defendants are tried at the same time for a misdemeanor, and some are acquitted, and others convicted, the court may grant a new trial as to those convicted, if they think the conviction improper. (h) And it is a rule that all the defendants convicted upon an indictment for a misdemeanor, must be present in court when a motion is made for a new trial on behalf of any of them, unless a special ground be laid for dispensing with their attendance. (i) No new trial can be had, when the defendant is acquitted, although the acquittal was founded on the misdirection of the Judge. (j) SECTION I. What Witnesses are Competent. By the competency of a witness is meant his admissibility to Of the comgive evidence; if he is incompetent, (of which the court is to petency of (e) Rex v. Ball, Russ, and Ry. C. C. R. 133. Rex v. Oldroyd, ibid.89. but see Rex v. Harling, Ry. & M. C. C. R. 39. (f) Rex v. Mawbey, 6 T. R. 638. Tidd 942, 943. As to the grounds on which the application may be made, see 1 Chit. Čr. L. 654. (g) See the cases collected on this point in note (b) to Rex v. Inhabitants of Oxford, 13 East 416. The Court of King's Bench in that case refused a certiorari to remove an indictment for a misdemeanor and proceedings thereon at the assizes, after conviction and before judgment, which (h) Rex v. Mawbey, 6 T. R. 619. (j) Rex v. Cohen and Jacob, 1 witnesses. Want of understanding. Idiots. Deaf and dumb. Lunatics. Children. Defect of religious belief. judge,) (k) he is to be totally excluded from giving his testimony; if he is competent, it will then be for the Jury to decide whether his evidence, when given, is entitled to credit. All persons are admissible witnesses who have the use of their reason, and such religious belief as to feel the obligation of an oath; who have not been convicted of any infamous crime; and who are not influenced by interest. (a) The causes of incompetency therefore to be considered are, 1. Defect of understanding. 2. Defect of religious belief. 3. Infamy; and therewith of the evidence of accomplices. 4. Interest; and therewith of the incompetency of husband and wife. 1. Persons incompetent from want of understanding. Idiots (b) are not admissible to give evidence. By the word 'Idiot' is meant a fool or madman from his nativity, who never has any lucid intervals. (c) A person deaf and dumb from his nativity (though in presumption of law an idiot), (d) if he is capable of conversing by signs, and has a proper sense of the obligation of an oath, may be admitted as a witness and examined with the assistance of an interpreter. (e) So lunatics are incompetent; that is, persons usually mad, but having intervals of reason; (f) during which times they are competent.(g) With respect to children, the rule now seems to be, that their competency does not depend on their age; but that a child of any age may be examined, if capable of distinguishing between good and evil :(h) but whatever be its age, it cannot be examined without being sworn.() Whether the infant be competent or not is a question for the discre tion of the Court. (k) There is no difference in respect of the competency of children between capital cases and misdemeanors. Where the child has appeared not sufficiently to understand the nature and obligation of an oath, Judges have often thought it necessary for the purposes of justice to put off the trial of a prisoner, directing that the child in the meantime should be properly instructed. (m) When the child is incompetent to be sworn, the account which it has given of the transaction to others is inadmissible.(n) 2. Of incompetency from defect of religious 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 as witnesses; and the only persons incompetent are those who do not believe in a God, the dispenser of future rewards and punish rewards and punishments; from which the Court may be satisfied that the witness entertains a proper sense of the danger and impiety of falsehood. Ibid. (i) See further on this subject, ante, Vol. I. 565, 566. (k) 2 Stark. Ev. 393. (1) Rex v. Travers, 2 Stra. 700. (m) Ante, Vol. I. 566. Phill. Ev. 19. But this must not be done in order that an adult may become capable, Ibid. post. p. 592. (n) 1 Phill. Ev. 19. |