the authority of Woodcock's case, held that the deposition was inadmissible. (u) But where the greater part of the deposition of the deceased, in a case of murder, had been reduced into writing in the absence of the prisoner, but the deceased was afterwards resworn in the prisoner's presence; and the deposition read over and stated by the deceased to be correct, and the rest of the deposition taken in the ordinary way, in the presence of the prisoner who was asked whether he chose to put any questions; it was held by Richards, C. B., that the deposition was admissible, and a great majority of the Judges upon a case reserved were of opinion that the evidence had been properly received. (v) 661 tions before a coroner, In this respect there is a very striking difference between de- Different rule positions before a magistrate and before a coroner; for not only as to deposi has it been settled, that if any witnesses who have been examined before the coroner are dead or unable to travel, or kept out of the way by the means and contrivance of the prisoner, their depositions may be read on the trial of the prisoner, (w) but the prevailing opinion seems to be that they are equally admissible though the prisoner may have been absent at the time of taking the inquisition. (x) The reasons given for this distinction usually are, that the examination before the coroner is a transaction of notoriety to which every one has right of access; (y) and that the coroner is an officer appointed on behalf of the public to make enquiry about the matters within his jurisdiction; and therefore the law will presume the depositions before him to be duly and impartially taken. (s) But these reasons and the authorities for the doctrine are certainly not at all satisfactory, and (as it has been remarked by a very sensible writer, (a) who has collected and commented on the cases,) since the distinction is not warranted by the (z) In addition to these authorities, may be mentioned the case of Rex v. Paine, I Salk. 281. S.C. 5 Mod. 163, cited by Lord Kenyon in Rex v. Eriswell, 3 T. R. 722. where upon a conference between the judges of the K. B. and C. P. it was held, that the deposition of a deceased witness was inadmissible "the defendant not being present "when they were taken before the 66 66 Mayor and so had lost the benefit of cross-examination." It is remarkable, that in the above mentioned case of Rex v. Eriswell, Grose, J., and Buller, J.,were of opinion that depositions taken by a justice of a person who afterwards died, though taken in the absence of the prisoner, might be read, and the latter Judge said it had been so determined by all the Judges in Radbourne's case. But on refer ence to the report of that case in 1 Leach 457, it will be seen that the depositions were taken in the presence of the prisoner. (v) Rex v. Smith, Russ. & Ry. C. C. R. 339. S. C. 2 Stark. N. P. C. 208. Holt N. P. C. 614. In a pre vious case, Rex v. Forbes, Holt N. ley's case, Kel. 55. (x) 1 Phill. Ev. 354. Bull. N. P. (y) 3 T. R. 722. 1 Phill. Ev. 355. (z) Bull. N. P. 242. language of the legislature and is unfounded on principle, it may, when the question arises, be a matter of very grave and serious consideration whether it ought to be admitted. (b) If the depositions were duly taken in conformity to the statute they are receivable in evidence, after the death of the deponent, not only upon the trial of the prisoner for the offence with which he was charged at the time they were taken, but upon an indictment for any other offence. Thus a deposition was held admissible in a case of murder, although it was taken when the prisoner had been brought before two magistrates upon a charge of an assault upon the deceased, and also upon a charge of robbing a manufactory which the deceased had been employed to guard. (c) The statute does not require that the deposition should be signed by the person making it: nor is such signature necessary for its admissibility. In the case of Rex v. Fleming and Windham, (d) on an indictment for a rape, all the Judges were of opinion that the deposition of a girl, since deceased, upon whom the offence had been committed, taken on oath before the committing magistrate, might be read in evidence, although it was not signed by her. The magistrate himself, however, by the statute 7 Geo. 4. c. 64. s. 2. is required to subscribe the examinations and informations taken by him. Parol evidence to add to, or vary the deposition, is not admissible ; (e) and since, as in the case of examinations, it will be (b) The stat. 1 and 2 P. & M. c. 13. s. 5., enacted, "that every coroner, upon any inquisition before him found, whereby any person shall be indicted for murder or manslaughter or as accessory before the murder or manslaughter, shall put in writing the effect of the evidence given to the jury before him, being material: and shall certify the same evidence, together with the inquisition or indictment before him taken and found, at or before the time of the trial thereof to be had." And by stat. 7 Geo. 4. c. 64. s. 4. (repealing the above-mentioned statute) it is enacted, “That every coroner, upon any inquisition before him taken, whereby any person shall be indicted for manslaughter or murder, or as an accessory to murder before the fact, shall put in writing the evidence given to the jury before him, or as much thereof as shall be material; and shall have authority to bind by recognizance all such persons as know or declare any thing material touching the said manslaughter or murder, or the said offence of being accessory to murder, to appear at the next court of oyer and terminer, or gaol delivery, or superior criminal court of a county pala tine, or great sessions, at which the trial is to be, then and there to prosecute or give evidence against the party charged, and every such coroner shall certify and subscribe the same evidence, and all such recognizances, and also the inquisition before him taken and shall deliver the same to the proper officer of the court in which the trial is to be, before or at the opening of the court." It will be observed that the principal alterations enacted by the latter statute are, that the coroner is to put in writing the evidence instead of the effect of of the evidence, as directed by the former: and that he is required to subscribe the evidence when taken. (c) Rex v. Smith, Russ. & Ry. C.C.R. 339. S.C. 2 Stark, N. P. C. 208. Eleven of the Judges met. Abbot, J., thought the evidence ought not to have been received. Dallas, J., Graham, B., Richards, C. B., and Lord Ellenborough stated that they should have doubted of the admissibility of the evidence, but for the case of Rex v. Radbourne, 1 Leach 457.. see supra p. 660. n. (t) (d) 2 Leach 854. (e) Rex v. Thornton, by Holroyd, J., 1 Phil. Ev. 352. son. intended that the magistrate, according to his duty, took the de- ing to, or va position in writing, parol evidence of the information is inadmis- rying it. sible, till it is shewn that it was not reduced to writing. (e) Although the statute 7 Geo. 4. c. 64. s. 2. has extended the ad- Depositions in missibility of depositions, taken before a justice, so as to include cases of treathose taken on a charge of a misdemeanor, yet as regards high treason, and petty treason, the law remains the same as under the statutes of Philip and Mary, and therefore on an indictment for the former, they continue inadmissible: but the latter being substantially the same offence as murder, they seem admissible, though a conviction cannot be grounded on such an information, if the witness be living, though unable to travel, or kept out of the way by the contrivance of the prisoner, the statute 5 & 6 Edw. 6. c. 11. s. 12. requiring the witnesses, if living, to be examined in petty treason, no less than in high treason: but the prisoner may be convicted on such evidence, of the murder, on an indictment for petty treason. (ƒ) One of the objects of passing these statutes was to enable the Judge and jury before whom the prisoner is tried, to see whether the evidence of the witnesses at the trial is consistent with the account given by them before the committing magistrate; (g) and therefore an information, when judicially and regularly taken, may be used on the part of the prisoner, when the informant gives his evidence at the trial, to contradict his testimony. Thus it was admitted in Lord Stafford's case, (h) that the deposition of a witness, taken before a justice of the peace, might be read at the desire of the prisoner, in order to take off the credit of the witness, by shewing a variance between the deposition and the evidence given in Court, vivá voce. And not only on the part of the prisoner, but of the crown, depositions may be so used, even for the purpose of impeaching the credit of a witness called for the prosecution. Thus in Oldroyd's case, (i) where the counsel for the crown, by the direction of the Judge, unwillingly called the prisoner's mother, (her name being on the back of the indictment, as having been examined by the grand jury,) and her evidence was in favour of the prisoner, Graham, B., ordered her deposition before the coroner to be read, for the purpose of affecting the credit of her testimony by shewing it's variance from the deposition. And the twelve Judges held, that it was competent for the Judge to do so and Lord Ellenborough, and Mansfield, C. J., thought the prosecutor also had a right to call for the depositions. Before depositions can be read against the prisoner, it must be proved by the justice or coroner who took them, or the clerk that wrote them, that they were truly taken.(j) Depositions are also sometimes taken in criminal cases, by the consent of the prosecutor and defendant, when a material witness is about (e) Rex v. Fearshire, 1 Leach 202. (ƒ) 1 Phil. Ev. 353. ante, p. 665. n. (t). A bill is now pending in parliament by which it is proposed to be enacted, that petit treason shall be treated in all respecti as murder. (g) See the judgment delivered by Grose, J., in Lambe's case, 2 Leach 558. (h) 3 St. Tr. p. 131. 1 Phil. Ev. 352. Deposition may be used witness. to contradict Depositions before justice of peace, how proved. Depositions upon interrogatories by consent. Depositions in India. In cases of offences committed by public servants abroad. to leave the country, or resides abroad. (k) But if the trial comes on before his departure, or after his return, the depositions cannot be read. (1) Where an indictment or information is exhibited in the King's Bench, for an offence committed in India, the depositions of the witnesses may be obtained under the provisions of the statute 13 Geo. 3. c. 63. s. 40. and 44. This statute enacts, that the Court may award a writ of mandamus to the Judges of the courts in India, as the case may require, for the examination of witnesses, who are to be examined publicly in the Court, upon oath administered according to the form of their several religions; and these depositions duly taken and returned, in the form prescribed by the act, are to be allowed, and deemed as good and competent evidence, as if the witnesses had been sworn at the trial, and examined viva voce. In the case of a prosecution for an offence committed abroad by any person employed in the public service, the depositions of witnesses resident abroad may be obtained in the way pointed out by stat. 42 Geo. 3. c. 85. (k) Rex v. Morphew, 2 M. & S. 602. The Court of K. B. allowed them to be read, on an indictment for perjury, by the consent of the defendant. Anon. 2 Chitt. 199. (4) Tidd. 362. CHAPTER THE THIRD. OF WHAT NATURE EVIDENCE MUST BE. OF PRESUMPTIVE EVI- SECTION I. Of Presumptive Evidence. or circum stantial evi WHEN a fact itself cannot be proved, that which comes nearest to Presumptive the proof of the fact is, the proof of the circumstances that necessarily or usually attend such facts, and are called presump- dence. tions, not proofs, for they stand instead of the proofs till the con-trary be proved. (a) In criminal cases, from the secret manner in which guilty actions are generally done, it is seldom possible to give direct evidence of the commission of the offence charged, i. e. to produce a witness who saw the act committed; and therefore recourse must necessarily be had to presumptive (or as it is often called, circumstantial) evidence, i. e. the direct evidence of circumstances from which the commission of the act may be presumed by the jury. (b) There is no difference between civil and criminal cases, with reference to the modes of proof by direct or circumstantial evidence, except that in the former, where civil rights are ascertained, a less degree of probability may be safely (a) Gilb. Ev. 142. As if a man be found suddenly dead in a room, and another be found running out in haste with a bloody sword; this is a violent presumption that he is the murderer: for the blood, the weapon, and the hasty flight, are all the necessary concomitants to such horrid facts; and the next proof to the sight of the fact itself, is the proof of those circumstances that do neces 1 sarily attend such fact. Ibid. (b) Presumptions are often divided into three sorts,-violent, probable, and light. Co. Lit. 6 b. 3 Black. Comm. 372. But such a classification seems altogether useless, and the distinction to amount to nothing more, than that in one case the presumptive evidence may be very strong, in another less so, and in another very weak. |