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In some particular cases it.is: necessary to prove the parish or place named in the indictment (!): Thus, as in an indictment against a parish for not repairing a highváy, the situation of the highway within the parish is a material averment, 'see 2 Stark. C. P. 693, (n.) it must be proved as laid. So if the statutė upon which the indictment is framed give the [ *103 ) penalty, to the poor of the parish in which *the offence was committed, the offence must be proved to have been committed in the parish stated in the indictment. Archb. C. P. 63; 2 Russ. 717. Where an injury, is partly local and partly transitory and a precise local description is giver, d. variance in proof of the place is fatal to the whole, for the whole being, one entire fact, the local description becomes descriptive of the transitory injury. 3 Stark. Ev. 1571, citing Cranage's case, Salk. 385 ; 2 Russ. 717. So where the name of a place is mentioned, not as matter of venue but of local description, it must be proved as laid, although it need not have been stated. Thus, where an indictment (under the repealed stat. 57 Geo. 3, c. 90) charged the defendant with being found armed with intent to destroy game in a certain wood called the Old Walk, in the occupation of J. J., and it appeared in evidence that the wood had always been called the Long Walk and never the Old Walk, the judges held the variance fatal. Owen's case, I Moo. C. C. 118 (a).
Where an information for a libel alleged that outrages had been committed in and in the neighborhood of N. it was held that the averment was divisible, and that it was sufficient to prove that outrages had been committed in either place. Sutton's case, 4 M. and S. 532.
Averments as to value. In general it is not necessary to prove the value of the property stolen or injured to be the same as that laid in the indictment, though formerly the distinction between grand and petty larceny depended upon the value of the property stolen; yet as that distinction is now abolished by the 7 and 8 Geo. 4, c. 28, the value has become immaterial, except in those cases where by statute the stealing property to a certain value enhances the punishment, as by the 7 and 8 Geo. 4, c. 29, s. 12, stealing in any dwelling-house, any chaitel, &c., to the value of five pounds. So the value is material in an indictment on the stat. 6 Geo. 4, c. 16, s. 112, against a bankrupt for removing, concealing, or embezzling any part of his estate to the value of £10 or upwards. On an indictment against a bankrupt under the former statute, it was held that the value being essential to constitute an offence, and being ascribed to many articles collectively, the offence must be made out as to every one of those articles, for the grand jury had only ascribed that value to all the articles collectively. Forsyth's case, Russ. and Ry. 274 (6).
(1) As in an indictment for keeping a disorderly house. McDonald's case, 3 Rogers' Rec. 128. So in burglary, Carny's case, Id. 44. Qu. In bigamy where the first marriage alleged to be in the State is in fact out of it. Ewen's case, 6 10. 65.
(a) 2 Eng. C. C. 118. (6) 1 Ibid. 274.
THE NUMBER REQUISITE, ATTENDANCE, REMUNERATION, AND PROTECTION
The number of witnesses requisite.) At common law one witness was sufficient in all cases (with the exception of perjury), both before the grand jury and at the trial ; 2 Hawk. c. 46, s. 2; Fost. 233.
But by the statutes relating to high treason (1 Ed. 6, c. 12, s. 22; 5 and 6 Ed. 6, c. 11, s. 12; 7 and 8 Wm. 3, c. 3, s. 2), two witnesses are required both before the grand jury and at the trial, to the same overt act, or one witness to one overt act, and another witness to another overt act of the same species of treason, unless the defendant shall willingly, without violence, confess the same. But a collateral fact may be proved by one witness, Fost. 242; as that the defendant is a natural born subject. Vaughan's case, 5 St. Tr. 29. Where the overt act alleged is the assassination of the king, or any direct attempt against his life or person, one witness is sufficient, 39 and 40 Geo. 3, c. 93. In misprision of treason there must also be two witnesses unless the defendant confesses the offence, 1 Ed. 6, c. 12, s. 22.
On an indictment for perjury two witnesses are requisite, see post, tit. Perjury. In all other cases one witness is sufficient, and a prisoner may be legally convicted on the uncorroborated testimony of an accomplice, although the practice is to require his evidence to be confirmed. See post, tit. Admissibility of Accomplices.
Mode of compelling the attendance of witnesses—recognizance.] There are two modes of compelling the attendance of witnesses; first by recognizance, secondly by subpæna.
*By the 7 Geo. 4, c. 64, s. 2, in cases of felony and suspicion of [ *105 ] felony, the justice or justices before whom the offender is brought to be examined, shall have power to bind by recognizance all such persons as know or declare any thing material concerning such offence, to appear at the next court of oyer and terminer, or gaol delivery, or superior criminal court of a county palatine, or of great session, or sessions of the peace, at which the trial thereof is intended to be, then and there to prosecute or give evidence against the party accused. By s. 3, the justice or justices have
similar powers to bind by recognizance where the offender is charged with a misdemeanor, or suspicion thereof. By s. 4, coroners have the like authority, in cases of murder or manslaughter, to bind by recognizance persons to prosecute or give evidence. See ante, p. 53. If a witness, examined before a justice of the peace, refuses to be
may be committed. 2 Hale, P. C. 284. But where the witness cannot find sureties, the magistrate ought to take his own recognizance, and it would be illegal to commit the witness. Per Graham, B., Bodmin Sum. Ass. 1827; 2 Stark. Ev. 82, 2d ed.
Where the witness was a married woman, and therefore incapable of entering into a recognizance, it was held that the magistrate was justified in committing her on her refusal to appear to give evidence, or to find sureties for her appearance to give evidence. Bennett v. Watson, 3 M. and S. 1.
Formerly, where a person had entered into a recognizance to prosecute or give evidence, and did not appear, such recognizance was, as a matter of course, estreated; but now, in such cases, by statute 7 Geo. 4, c. 64, s. 31, such recognizances are not to be estreated without the written order of the judge, &c., who shall have attended the court, who shall make an order touching the estreating or putting in process of such recognizance.
Subpæna. Where a witness has not been bound by recognizance to appear, he may be compelled to do so by subpænd (1). This process is issued by the clerk of the peace at sessions, or by the clerk of assize at the assizes, or it may be issued out of the Crown Office. The latter is the most prudent course, as it affords the most facilities for obtaining an attachment in case of a refusal to attend, and may be served out of the jurisdiction of an inferior court. 1 Chitty, °C. L. 608; 2 Russ. 638; Ring's case, 8 T. R. 585. By stat. 45 Geo. 3, c. 92, s. 3, the service of a subpænd on a witness in any part of the United Kingdom, for his appearance on a criminal prosecution in any other part, shall be as effectual as if it had been in that part where he is required to appear.
Where there are writings or documents in the possession of a witness, which it is desired that he should produce on the trial, a clause of duces tecum, directing the witness to bring with him into court the documents in question, is added to the writ of subpæna. If the documents are in the possession of the party or his attorney, a notice to produce must be given. Where documents are in the possession of the prosecutor, and ( *106 ) the prisoner is desirous of having *them produced upon the trial, the safest mode of proceeding appears to be to serve the prosecutor with a subpæna duces tecum, and not to rely on a notice to produce, since it may be a question whether a prosecutor is so far a party to the proceeding as to be affected by a notice to produce. The subpæna duces tecum is compulsory on the witness, and though it is a question for the decision of the presiding judge, whether the witness in court should produce the documents required, yet he ought to be prepared to produce them, if the judge be of that opinion (2). Amey. v. Long, 9 East, 473. It is no excuse for not producing a document, that it does not belong to the wit
(1) The defendant is entitled to subpæna before the Grand Jury have found the bill. 1 Burr's Trial, 178. U. States o. Moore, Wallace, 23.
(2) The subpæna duces tecum is not a process of right. 1 Burr's Trial, 137, 182. Gray o. Pentland, 2 s. & R. 31.
ness, provided it be in his possession. Corsen v. Dubois, Holt, N. P. C. 239 (a).
But the court will excuse the production if the disclosure would subject the party to a criminal charge or penalty. Whitaker v. Izod, 2 Taunt. 115. Or involve a breach of professional confidence if be be an attorney. Harris v. Hill, 3 Stark. 140 (b). So neither a party nor his attorney will be compelled to produce his title deeds. Pickering r. Noyes, 1 B. and C. 263 (C); see post.
Where the production is excused, secondary evidence may be given of the deed. Marston v. Downes, ante, p. 8.
A person subpænaed merely to produce a document, need not be sworn ; Perry v. Gibson, I A. and E. 48 (d); and if sworn by mistake, is not liable to be cross-examined by the opposite party. Rush v. Smyth, 4 Tyrwh. 675; 1 Cr. M. and R. 194. See further, post, Examination of Witnesses.
A defendant, who has suffered judgment to go by default, is a competent witness to produce a deed on behalf of another defendant. Colley 0. Smyth, 4 Bingh. New C. 285 (e).
The witness must be personally served, by leaving with him a copy of the subpæna, or a ticket which contains the substance of the writ. Phill. Ev. 782, 8th ed. ; 2 Russ. 639; I Stark. Ev. 77, 2d ed.; Maddeson v. Shore, 5 Mod. 355. Where a copy only is served, the original must be shown to the witness, whether he require it or not, otherwise he cannot be attached. Wadsworth v. Marshall, 3 Tyrwh. 228; 1 C. and M. 87. It must be served a reasonable time before the day of trial. Service upon a witness at two in the afternoon, in London, requiring him to attend the sittings at Westminster, in the course of the same evening, has been held to be too short. Hammond v. Stewart, I Str. 510; 2 Tidd, 856, 8th ed.
In order to provide for the appearance of persons to answer in cases where warrants are not usually issued, and to give evidence in criminal prosecutions in every part of the United Kingdom, it is enacted by stat. 45 Geo. 3, c. 92, ss. 3 and 4, that the service of a writ of subpena in any one of the parts of the United Kingdom, shall be as effectual to compel the appearance of any person to answer or give evidence in any criminal prosccution in any other of the parts of the United Kingdom, as if the process had been served in that part where the person is required to appear. And if the person required to attend does not appear, the court out of which the process issued may transmit a certificate of the default, in the *manner specified in the act; (vide post, p. 90) and the [*107 court to which the certificate is transmitted may punish the person for his default, as if he had refused to appear to process issuing out of that court, provided it appear that a reasonable and sufficient sum of money to defray the expenses of coming and attending to give evidence, and of returning, was tendered to the person making default, at the time when the subpæna was served upon him.
In a criminal case a person who is present in court, when called as a witness, is bound to be sworn and to give his evidence, although he has not been subpænaed. An indictment for stopping up a way is a criminal case for this purpose. Sadler's case, 4 C. and P. 218 (f).
(a) Eng Com. L. Rep. iii. 86. (b) Id. xiv. 170. () Id. viii. 72. (d) Id. xxviii. 32. (e) Id.
xxxvi. 355. (f) Id. xix.
Mode of compelling the attendance of witnesses-subpæna for prisoner.] In cases of misdemeanor, the defendant at common law was entitled to a writ of subpæna, but it was otherwise in capital cases, in which the party was compelled to obtain a special order of the court. 4 Black. Com. 359. If the attendance of the witness was procured he was not allowed to be sworn. But by stat. 7 Wm. 3, c. 3, s. 7, all persons indicted for high treason, whereby corruption of blood may ensue, shall have the like process of the court where they shall be tried, to compel their witnesses to appear for them, as is usually granted to compel witnesses to appear against them. And by stat. 1 Anne, st. 1, c. 9. all witnesses on behalf of a prisoner, for treason or felony, shall be sworn in the same manner as witnesses for the crown, and be liable to all the penalties of perjury. A witness who refuses, after having been subpænaed to attend, to give evidence for a prisoner, is liable to an attachment in the same manner as if subpænaed for the prosecution. 1 Stark. Ev. 85, 2d ed.
Mode of compelling the attendance of witnesses—habeas corpus ad testificandum.] Where a person required as a witness is in custody, or under the duress of some third person, as a sailor on board of a ship of war, so as to prevent his attendance, the mode of compelling it is to issue a habeas corpus ad testificandum. For this purpose application must be made to the court before which the prisoner is to be tried, or to a judge, upon an affidavit, stating that the party is a material witness, and willing to attend. R. v. Roddam, Cowp. 672; Phill. Ev. 783, 8th ed. ; 1 Stark. Ev. SO, 2d ed. The Court will then, if they think fit, make a rule, or the judge will grant his fiat for a writ of habeas corpus. Burbage's case, 3 Burr. 1440 ; Phill. Ev. 784, 8th ed.
Formerly it was doubted whether persons in custody could be brought up as witnesses by writ of habeas corpus, to give evidence before any other courts than those at Westminster; but by statute 43 Geo.3, c. 140, a judge of the King's Bench or Common Pleas, or a baron of the Exchequer, may, at his discretion, award a writ of habeas corpus ad testificandum, for bringing any prisoner detained in any gaol in England before a court martial, or before commissioners of bankruptcy, commissioners for auditing the public accounts, or other commissioners, acting by virtue of [ *108 ) any royal commission or *warrant. By stat. 44 Geo. 3, c. 102, the judges of the King's Bench, or Common Pleas, or barons of the Exchequer in England or Ireland, or the justices of oyer and terminer, or gaol delivery, (being such judge or baron) have power to award writs of habeas corpus, for bringing prisoners, detained in gaol, before such courts, or any sitting at nisi prius, or before any court of record in the said parts of the said united kingdom, to be there examined as a witness, and to testify the truth before such courts, or before any grand, petit, or other jury, in any cause or matter, civil or criminal, which shall be depending, or to be inquired into, or determined, in any of the said courts. The application under this statute ought to be to a judge out of court. Gordon's case, 2 M. and S. 582.
The writ should be left with the sheriff or other officer, who will then be bound to bring up the body, on being paid his reasonable expenses. Phill. Ev. 784, Sth ed. ; 1 Stark. Ev. 81, 2d ed. If the witness be a