self may have never seen the deceased. See 1 Arch. Pl. & Ev. civ. act. p. 438. And lastly, the dying declarations of another, which, however, are evidence against a prisoner, only in cases where the cause of the death of the deceased is the subject of inquiry upon the trial, and the circumstances of the death the subject of the dying declaration, R. v. Mead, 2 B. & C. 605. R. v. Lloyd, Williams, & Roberts, 4 Car. & P. 233, and where it appears by other testimony that the deceased, at the time he made the declarations, was perfectly aware of his danger, and entertained no hope of recovery. See 2 Arch. P. A. 93. R. v. Crockett. 4 Car. & P. 544. R. v. Bonner, 6 Car. & P. 386. R. v. Pike, 3 Car. & P. 598. R. v. Woodcock, 1 Leach, 500. R. v. John, 1 East, P. C. 357.

The witness is allowed to refresh his memory, by a reference to any memorandum or entry, made by himself, at a time when the transaction was fresh in his recollection. And where an agent, who had given a receipt for money, afterwards became blind, the receipt, though unstamped, was allowed to be read to him in Court, for the purpose of refreshing his memory. Catt v. Howard, 3 Stark. R. 3. Also, where, upon the examination of a captain of a ship, the log-book was laid before him for the purpose of refreshing his recollection; and being asked if he had written it himself, he answered that he had not, but that from time to time he examined the entries in it while the occurrences therein mentioned were recent and fresh in his recollection, and that he always found the entries to be correct: Lord Ellenborough, C. J. held this to be the same, for the purpose of refreshing the witness's memory, as if the entries had been written by himself. Burrough v. Martin, 2 Camp. 112. This however must be understood as being allowed merely to aid the memory of the witness; for if he have no recollection of the fact stated in the memorandum or entry, except from his finding it entered there, he cannot be allowed to give evidence of it. See Doe v. Perkins, 3 T. R. 749. Tanner v. Taylor, Id. 754, cit. Where indeed an entry in a book stated a payment of a sum of 201., as being made to J. S., and was signed by J. S. with his initials; and upon J. S. appearing as a witness to prove the receipt of this 20., and the book being put into his hands for the purpose of refreshing his memory, he said "I have no recollection that I received the money; I know nothing but by the book; but seeing my initials, I have no doubt that I received the money: the Court held this to be sufficient; and Bayley, J. remarked, that where a witness, called to prove the execution of a deed, sees his signature to the attestation, and says that he is therefore sure that he saw the party execute the deed, that is a sufficient proof of the execution, though the witness add that he has no recollection of the fact. Mangham v. Hubbard et al. 8 B. & C. 14.

The counsel for the prosecution should in fairness call all the

witnesses whose names are on the back of the indictment, whether they be necessary for the proof of his case or not, in order that the prisoner or his counsel may have an opportunity of crossexamining them, if he thinks proper; or if he refuse to call any particular witness, the judge, upon the.application of the prisoner or his counsel, will have the witness called, and allow him to be cross-examined. See R. v. Simmonds, 1 Cur. & P. 84.

At the commencement of the trial, or at any time during its progress, the Court upon application will order the witnesses on either or both sides out of Court, in order that none of them may be examined in the presence or hearing of others who are to be cross-examined after them. The attornies of the respective parties, Pomeroy v. Baddeley, Ry. & M. N. P. C. 430, and the surgeon or other medical man, and any other witness who is to depose to mere matter of opinion and not to facts, are never included in this order. If the witness do not withdraw, when ordered, or afterwards come into Court and is present during the examination of some other witness, it is discretionary with the judge whether he will allow him to be examined or not. Parker v. M'William, 6 Bing. 683. R. v. Coley, 1 Moody & M. 329.

Cross-examination.] A witness called merely for the purpose of producing a deed or other paper writing, need not be sworn; Davis v. Dale, 1 Moody & M. 514; and if not sworn, the opposite party has no right to cross-examine him. On the other hand, if a witness be called and sworn, although the party who calls him do not examine him, yet the opposite party is entitled to cross-examine him, if he will. Phillips v. Eamer, 1 Esp. 357. R. v. Brooke, 2 Stark. 472.

Upon cross-examination, the witness may be asked leading questions. And the questions need not be confined to the subject of the examination; the party cross examining may question the witness, not only as to all matters relevant to the issue, but as to collateral matter also, for the purposes of trying his credit. But if a question be put to him thus upon a subject which has no relevancy to the matter in issue, you must be satisfied with the witness's answer; you cannot afterwards call any witness to contradict him. Spencely v. De Willott, 7 East, 109. Harris v. Tippett, 2 Camp. 637. and see R. v. Clark, 2 Stark. 243, 244. But if, in any matter relevant to the issue, he make a statement either in his examination or cross-examination, at variance with the account which at some previous time he gave of the same transaction to some other person, you may question him as to what he said to such other person, and if he deny it, you may call such other person to contradict him. 2 Brod. & B. 301. Queen's Case. De Sailly v. Morgan, 2 Esp. 691. And after asking the witness in cross-examination whether he did not say so and so to J. S., you may afterwards put the very words to J. S and

ask him if the witness did not say so; and this is a more correct way of putting it, than merely to ask J. S. generally what the witness said to him. See 2 Brod. & B. 313. You cannot ask a witness in cross-examination a question, the answer to which in the affirmative would amount to an admission that he had committed some offence for which he might be subject to punishment. 2 Hawk. c. 46, s. 20. Cundell v. Pratt, I Moody & M. 108. Cates v. Hardacre, 3 Taunt. 424. R. v. Pitcher, 1 Car. & P. 85. and see Stat. 46 G. 3, c. 37. As to questions, the answers to which merely go to degrade a witness, but not to subject him, they may not only be asked, but must be answered. Cundell v. Pratt, supra. and see R. v. Edwards, 4 T. R. 440. R. v. Clarke, 2 Stark. 241. Also, questions, the answers to which may subject the witness, not to punishment, but merely to an action for a debt or other civil suit, may be put, and must be answered. 46 G. 3. c. 37.

Afterwards the character of the witness may be impugned, by calling other witnesses acquainted with his general character, who may be asked generally whether, from what they know of his character, they would believe him upon his oath. Mawson v. Hartsink et al. 4 Esp. 102. Or upon an indictment for a rape, or an assault with intent to commit it, witnesses may be called to prove the general character of the prosecutrix for want of chastity, but they will not be allowed to speak to any particular acts. R. v. Clarke, 2 Stark. 243.

Examination, &c. of Witnesses for the Defence.] The defendant may call witnesses to prove any defence he may set up to the charge made against him; and they may be examined and crossexamined, in the manner above mentioned. But where witnesses give evidence merely as to the prisoner's character, it is not usual to cross-examine them, unless it appear that they are practising an imposition on the Court, or under other peculiar circumstances.

Evidence in reply.] If the defendant set up any defence, and give evidence in proof of it, the prosecutor may then give evidence in reply. This evidence must be strictly confined to the defence; the prosecutor will not be allowed to wander from that, and give further evidence upon the original charge. Where upon an indictment for larceny, the prosecutor rested his defence upon the prisoner's recent possession of the goods; the prisoner set up as a defence that he bought the goods of J. T., and he called a witness to prove it; the prosecutor then proposed to call J. T. to prove, not only that he did not sell the goods to the prisoner, but that he saw the prisoner steal them: it was holden, however, that he could not do this, but that he must confine his evidence to the defence merely. R. v. Stimpson, 2 Car. & P. 415. and see R. v. Hilditch et al. 5 Car. & P. 299.

Witnesses, how compelled to attend.] The witnesses for the prosecution, who attend before the magistrate at the time the prisoner is committed, are usually bound over by recognizance to attend and give evidence; and, for non-attendance, they may be punished, by their recognizance being estreated. All other witnesses, on the one side or the other, may be compelled to attend by subpoena, issued either from the Crown Office in London, or by the Clerk of the Peace at Sessions: if it issue from the Crown Office, the remedy for non-attendance is by application to the Court of King's Bench for an attachment; R. v. Ring, 8 T. R. 585; if issued by the Clerk of the Peace, the remedy or punishment for non attendance is, not by attachment, R.V. Brownall, 1 Ad. & E. 598, but by indictment. By stat. 45 G. 3, c. 92, s. 3, the service of a subpoena or other process upon any person in one part of the United Kingdom, requiring his appearance to give evidence in any criminal prosecution in any other part of the same, shall be as good and effectual as if it were served in that part of the United Kingdom in which he is required to appear; and in case he do not attend, then upon a certificate thereof being sent by the Court in which his attendance was required, to the Court of King's Bench in England, if the service were in England, or the Court of Justiciary in Scotland, if the service were in Scotland, or to the Court of King's Bench in Ireland, if the service were in Ireland; and these Courts respectively shall thereupon proceed against the person so making default, in such manner as if the subpœna, &c. had been issued from such Courts respectively. This statute applies only where the party is served in Scotland or Ireland with a subpœna to give evidence in England, or in England to give evidence in Scotland or Ireland, or the like.

If the witness be in custody on civil process, he must be brought up by writ of Habeas Corpus.

Witnesses' Expenses.] In what cases and how the expenses of witnesses are allowed and paid out of the County Rate in cases of felony, see 7 G. 4, c. 64, s. 22, 24-30. 1 Arch. P. A. 212, 213, 215-220; in certain cases of misdemeanor, see 7 G. 4, c. 64, s. 23. 1 Arch. P. A. 214. The witness cannot refuse to give his testimony in a criminal case, until his expenses have been paid to him, even although subpoenaed on the part of a defendant; R. v. James et al. 1 Car. & P. 322; and the indictment having been removed by certiorari, and the trial being of course in the Nisi Prius Court at the assizes, makes no difference. Id.

SECTION 6.

Indictments and Evidence in particular Cases.

UNDER this head, I mean to give the indictments and evidence in those cases only which usually occur at Sessions. The reader will find, in the list of offences punishable upon indictment, already given ante, p. 84, et seq., references to books, where precedents of indictments for other offences, and the evidence necessary to support them, will be found.

1. Indictment for simple Larceny.

Berkshire to wit: The jurors for our Lord the King upon their oath present, that A. B., late of the parish of, in the county aforesaid, labourer, on the third day of November, in the seventh year of the reign of our Sovereign Lord William the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland King, defender of the faith, with force and arms, at the parish aforesaid, in the county aforesaid, [ten pieces of the current gold coin of the realm called sovereigns, of the value of ten pounds, one woollen cloth coat of the value of ten shillings, and one linen shirt of the value of five shillings], of the monies, goods and chattels of one C. D., then and there being found, feloniously did steal, take, and carry away, against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. 1 Arch. P. A. 269, 270.

Transportation for seven years; or imprisonment not exceeding two years, and once, twice, or thrice public whipping, if the Court shall think fit; 7 & 8 G. 4, c. 29, s. 3; such imprisonment may be with or without hard labour, and all or any portion of it may be in solitary confinement. Id. s. 4.

Evidence.

This is proved, either by direct evidence of the taking, &c., or by proof of facts and circumstances from which the jury may fairly presume it.

Larceny is a felonious taking and carrying away of the personal goods of another. Where goods are stolen, and are very shortly afterwards found in the possession of a person, who is unable satisfactorily to shew by evidence in what manner he came by them, the presumption is that he is the person who stole them. It is therefore a very usual way of proving a larceny, first to call the prosecutor or other person, in whose possession the goods were at the time they were stolen, to prove when he last saw them in his possession, and when he missed them; then to call some person who can prove that they were