Page images
PDF
EPUB

Inspection of

public books.

Never granted

in criminal

cases.

2. Of the proof cuments.

nor of felony, has he any right to a copy of the depositions of the witnesses, who are to appear against him.(m) "The practice on "indictments at common law, and on informations upon particu"lar statutes," said Mr. Justice Buller in Rex v. Holland, "shews "it to be clear that the defendant is not entitled to inspect the evi"dence on which the prosecution is founded, till the hour of "trial."(n) Where civil rights are depending, a party has a right to inspect, and take copies of such books, &c. as are of a public nature, wherein he has an interest: (0) but a rule for inspecting a public writing is never granted, where the party who has them in his custody would, by producing them for inspection, disclose any evidence of a criminal nature, or expose himself to a criminal prosecution: for it is a constant and invariable principle that in criminal cases, the party shall never be compelled to furnish evidence against himself. (p)

2dly. Of the proof of private documents. The execution of all written instruments which are attested, whether under seal or not, must be proved by the subscribing witness, if he can be produced, and is capable of being examined. Thus not only bonds and other deeds, but attested notices to quit, (i) attested warrants to distrain,(k) attested bills of exchange, or promissory notes, must be proved by the attesting witness. And so strictly is this rule observed, that the testimony of the attesting witness cannot be dispensed with, though an acknowledgment of the obligor himself be proved, admitting that he executed the bond, (1) or the defendant has admitted the execution in his answer to a bill in Chancery; (m) for though the party may acknowledge the bond, yet he may not know every circumstance attending the execution; "a "fact may be known to the subscribing witness, not within the knowledge or recollection of the obligor, and he is entitled to "avail himself of all the knowledge of the subscribing witness "relative to the transaction."(n) But where the attesting witness is dead, (o) or blind, (p) or insane, (7) or infamous, (r) or has become interested after the execution of the deed, (s) or absent in a foreign country, or not amenable to the process of the superior courts, (f) as where he is in Ireland, (u) or where he cannot be found after diligent inquiry, (v) evidence of the witness's handwriting is

66

(m) 1 Phil. Ev. 400. In some spe cies of treason, the prisoner is entitled to a copy of the indictment, Ibid.

(n) Rex v. Holland, 4 T. R. 691. In that case an information had been filed against an officer of the East India Company, on charges of delinquency founded upon a report of a board of enquiry in India: and the Court of King's Bench were of opinion, that he had no right to have an inspection of that report, and that the Court had no discretionary power to grant it.

(0) Tidd. 647.
(p) Tidd. 649.

(i) Doe v. Durnford, 2 M. & S. 62. And it makes no difference that the

party, upon whom the notice was served, read it and made no objection. Ibid.

(k) Higgs v. Dixon, 2 Stark. N. P. C.

210.

(1) Abbot v. Plumbe, 1 Dougl. 216.
(m) Call v. Dunning, 4 East. 53.
(n) By Le Blanc, J. 4 East. 53.
(0) Anon. 12 Mod. 607.

(p) Wood v. Drury, 1 Lord Raym.

734.

(q) Currie v. Child, 3 Campb. 283. (r) Jones v. Mason, 2 Stra. 833. (8) Godfrey v. Norris, 1 Stra. 34. (t) Prince v. Blackburn, 2 East. 250.

(u) Hodnet v. Foreman, 1 Stark. N. P. C. 90.

(v) Cunliffe v. Sefton, 2 East. 183.

Handwriting how proved.

admissible.(w) In these cases it seems sufficient to prove the handwriting of the witness, without proving the handwriting of the party, unless with a view to establish the identity of the party; but slighter evidence of that fact would be sufficient. (a) And in a very late case Lord Tenterden held, that proof of the handwriting of the subscribing witness who was dead was sufficient, without any further proof of the identity of the parties than the identity of the name and description. (y) The handwriting of a party may be proved by a witness who has seen him write; and, if a witness states that he has only seen him write once, but thinks the signature is his handwriting, it is evidence to go to the jury, although he says that he can form no belief on the subject.(z) A written correspondence with the party, although the witness has never seen him write, will be sufficient to enable him to speak to the handwriting; for when letters are sent directed to a particular person, and on particular business, and an answer is received in due course, a fair inference arises, that the answer was sent by the person whose handwriting it purports to be. (a) So where a witness who had never seen the defendant, but had corresponded with a person of defendant's name living at Plymouth dock, where the defendant resided, and where, according to other evidence, there was no other person of the same name, stated that the handwriting in question was the handwriting of the person with whom he corresponded, the evidence was held sufficient. (b) It is an established rule, that handwriting cannot be proved by comparing the paper with any other papers acknowledged to be genuine. (c) A written instrument, which requires a stamp, in criminal as well Stamps. as civil cases, is inadmissible in evidence, unless it be duly stamped, and no parol evidence will be received of its contents. Thus where the prisoner, being a clerk, receiving money on his master's account, gave to the debtor a receipt on plain paper; the receipt was held, by Bayley, J., not to be evidence against the prisoner on an indictment for embezzling the money so received. (d) But in certain cases unstamped written instru- Unstamped inments have been received in evidence, when produced merely collateral purto prove something collateral, and not for the purpose of being poses. enforced between the parties, and when it is not material to consider whether the instruments are good or available in law. (e) Thus a paper, purporting to be a bill of exchange or promissory note, may be given in evidence to support an indictment for forgery, or for uttering with a knowledge of the forgery.(f) So on an indictment on 7 Geo. 4. c. 50. s. 2. for steal

(w) Rosc. Ev. 52. See also what will be considered a diligent enquiry so as to let in such evidence, ibid. (x) Ibid.

(y) Page v. Mann, Mood. & Malk. N. P. C. 79.

(z) Garrels v. Alexander, 4 Esp. 37. Rosc. Ev. 54. The signature of a person may be proved by a witness who has seen him write his surname only. Lewis v. Sapio, 1 Mood. & Malk. N. P. C. 39. by Abbott, C. J.,

[blocks in formation]

ing a letter, where it appeared that the check or draft which the prisoner had taken out of the letter was drawn on unstamped paper, it was objected on behalf of the prisoner, that it could not be received in evidence, even as a medium to shew that he had stolen the letter; but the Court overruled the objection, being of opinion that the draft, though unstamped, might be received in evidence for collateral purposes, though not for the purpose of recovering the money contained in it.(g) But in a modern case of an indictment for feloniously setting fire to a house with intent to defraud an insurance company, a policy of insurance was given in evidence on the part of the prosecution, by which the prisoner's goods, in a house described in the policy, were insured against fire, and upon which a memorandum was indorsed stating, that the goods insured had been removed from the house described in the policy to another house mentioned in the memorandum. In this house, so mentioned in the memorandum, the prisoner was charged with having committed the felony. The policy was properly stamped, but the memorandum had no stamp; and upon this circumstance, an objection was taken on behalf of the prisoner, that it was essentially necessary to shew, in support of the charge, that there subsisted a legal effective contract; and that, by the express provisions of the stamp acts, the memorandum in question, not being stamped, could not be given in evidence, or be good or available in any manner whatever. The point being reserved for the consideration of the twelve Judges, was argued before them; and the conviction was held to be wrong.(h)

As to other points respecting the proof and effect of public and private documents, since they are of rare occurrence in criminal proceedings, it is thought more advisable to refer the reader to the general Treatises on the Law of Evidence, than to encumber this work with any notice of them.

(g) Pooley's 2d case, 2 Leach 900. S. C. 1 East. P. C. Addenda xvii. Ante, 239. The prisoner had been previously tried on the first section of the act, which makes it a capital felony for any servant of the postoffice to secrete any letter containing a bank note, or any warrant or draft for the payment of money: and it was held that a draft which required a stamp, but was unstamped, was not a draft for the payment of money

within the act. Pooley's case, 2 Leach

887.

Ante, 231.

(h) Gilson's case, 2 Leach 1007. Russ. & Ry. C. C. R. 138. Ante, 496. Lord Ellenborough, Mansfield, C. J., Wood, B., Grose, J., and Heath, J., were of opinion the conviction was right. The Lord Chief Baron, Thompson, B., Lawrence, J., Le Blanc, J., Chambre, J., and Graham, B., were of the contrary opinion.

INDEX

TO BOTH VOLUMES.

A.

ABATEMENT,

undue, of price of native commodities indictable, i. 175
ABDUCTION, i. 582. See tit. KIDNAPPING.

forcible, of women, i. 569, et seq.

offence at common law, i. 569

by statute, i. 570. See Add. vol. i. p. xiii. xiv. xxxviii.
when complete, i. 571, Add. vol. i. p. xiv. xxxvii.

punishment under 1 Geo. 4., i. 570-Repealed by stat. 9 Geo. 4. c.31.
Add. vol. i. p. xiv.

accessories, i. 570

construction of 3 Hen. 7., i. 571-Repealed by stat. 9 Geo. 4. c. 31. See
Add. vol. i. p. xiv.

county in which offence may be committed, i. 572, et seq. See Add. vol. i.
p. xiv.

indictment, i. 576. See Add. vol. i. p. xiv. xv.

evidence of woman carried away, i. 576, 577. See Add. vol. i. p. xv. ii. 605,

606

9 Geo. 4. c. 31.

s. 19. forcible abduction of a woman on account of her fortune with intent
to marry her, Add. vol. i. p. xiii. xxxvii.

s. 20. unlawful abduction of a girl under sixteen from her parents or guar-
dians, Add. vol. i. p. xv.

of a maid under sixteen from her father or guardian, i. 577, 578. Add. vol. i.

P. xv.

4 & 5 Ph. & M. c. 8. s. 2. ii. 57—Repealed by stat. 9 Geo. 4. c. 31.
vol. i. p. xv. xxxii.

Irish statutes concerning, i. 581

forcible abduction, and sending of persons into other countries, i. 582

Add:

masters of vessels forcing men on shore, and leaving them, i. 583-See Add. vol.
i. p. xv.

ABETTORS.-See AIDERS AND ABETTORS.

punishment of, in misdemeanors, ii. 190, 193, 195, 221

on summary convictions, ii. 190, 193. Add. vol. ii. Ixv.
in stealing, &c. letters, ii. 229

in false personations, ii. 482

ABORTION,

murder in attempting to procure, i. 434

43 Geo. 3. as to administering poison, &c. to cause miscarriage, &c. of women
quick with child, i. 553, 554. Add. vol. i. p. xii. xxxvi.

destroying infants in the mother's womb, i. 553. Add. vol. i. p. xiii. xxxvi.
ACCESSORY,

at the fact, i. 21

aider and abettor formerly considered, i. 21

before the fact, i. 29

who is to be so considered, i. 29

description of, in different statutes, i. 30

the same person may be such accessory, and also a principal, i. 29

qu. whether so chargeable in one indictment, i. 29 n. (1)

how he differs from a principal in the second degree, i. 29

if a man be indicted as, he cannot be convicted on evidence of his be-
ing present aiding and abetting, i. 30

after an acquittal on such objection, he may be indicted as prin-
cipal, i. 30, n. (m)

offence of, derivative from that of principal, i. 30

if a person be present, he is not an accessory but a principal, i. 31, and n.(x)
by the intervention of a third person, i. 31'

in what crime there may be, i. 31

felonies created by statute, i. 32

cannot be in a misdemeanor, i. 32

accessorius sequitur naturam principalis sui, i. 32

how far an accessory is implicated when the principal varies from the terms
of the instigation, i. 33

when he commits a different crime, i. 33, 34

when he repents and countermands the principal, i. 34, ii. 88

counselling a pregnant woman to murder her child, i. 33

in murder, i. 432.-See MURder.

cannot be in manslaughter, i. 485

how and where to be tried, Add. vol. i. p. ii, iii, xxiii, xxiv

may be prosecuted after conviction of principal, though he be rot attainted,

ib.

[blocks in formation]

who is to be so considered, i. 34, 43

by receiving, comforting, &c. the felon, i. 35

or the accessory before the fact, i. 35

by assisting a felon sentenced to be transported, i. 393

in offences created by statute, i. 35

must know of the felony committed, i. 35

and the felony must be complete, i. 35, 36

feme covert not, by receiving her husband, i. 19, 36
proceedings against, unfrequent, i. 36

punishment of, Add. vol. i. p. ii, xxiii

receivers of stolen goods, i. 36

to stealing of horses,-construction of stat. of Eliz., i. 36
in murder, i. 433

« PreviousContinue »