Sivut kuvina

case, 4 C. and P. 225 (a). See also Steptoe's case, 4 C. and P. 397 (6), S. P. In a recent celebrated trial for murder, the counsel for the prosecution said he would treat the statements of the prisoners before the magistrates as [ *53 ] their defence, and show *by evidence that they were not consistent with truth; Greenacre's case, 8 C. and P. 36 (c), and this course is frequently adopted in practice.

Confessions of matters void in point of law, or false in fact.] An admission on the part of a prisoner is not conclusive, and if it afterwards appear in evidence that the fact was otherwise, the admission will be of no weight (I). Thus, upon an indictment for bigamy, where the prisoner had admitted the first marriage, and it appeared at the trial that such marriage was void, for want of consent of the guardian of the woman, the prisoner was acquitted. 3 Stark. Ev. 1187, 1st ed.t So on an indictment for setting fire to a ship, with intent to injure two part owners, it was held that the prosecutor could not make use of an admission by the prisoner that these persons were owners, if it appeared that the requisites of the shipping acts had not been complied with. Philp's case, 4 Moody's C. C. 271 (d).


Statute 7 Geo. 4. c. 64 .
Mode of taking Examinations

Questioning the prisoner
Examinations must not be taken on oath
When reduced into writing and when not

Signature to Examinations
Examinations informal--used to refresh memory of witness
Mode of proof.

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Slatute 7 Geo. 1. c. 64.] The foregoing pages relate only to the confessions and admissions made, by persons charged with offences, to third persons, and not made to magistrates during the examinations directed to be taken by statute. Those examinations, formerly taken under the 1 and 2 P. and M. c. 13, and 2 and 3 P. and M. c. 10, are now governed by the 7 Geo. 4. c. 64.

By that statute, s. 2, it is enacted, “That the two justices of the peace, before they shall admit to bail, and the justice or justices before he or they

(1) Alton o. Gelmantor, 2 N. Hamp. 521.

† New ed. 2d vol. 654. (a) Eng. Com. L. Rep. xix. 357. (b) Id. xix. 440. (c) Id. xxxiv. 281. (d) 2 Eng. C. C. 271.

shall commit to prison any person arrested for felony, or on suspicion of felony, shall take the examination of such person and the information upon oath of those who shall know *the facts and circumstances of the [ *54] case, and shall put the same, or as much thereof as shall be material, into writing, and the two justices shall certify such bailment in writing; and every justice shall have authority to bind by recognizance all such persons as know or declare any thing material touching any such felony or suspicion of felony, to appear at the next court of oyer and terminer, or gaol delivery, or superior criminal court of a county palatine, or great sessions, 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 : and such justices and justice respectively shall subscribe all such examinations, bailments, and recognizances, and deliver, or cause the same to be delivered to the proper officer of the court in which the trial is to be, before or at the opening of the court."

Before the above statute, the justices had no power to take the examination of persons charged with misdemeanors; but now, by sec. 3, it is enacted -- "That every justice of the peace, before whom any person shall be taken, on a charge of misdemeanor or suspicion thereof, shall take the examination of the person charged, and the information, upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing, before he shall commit to prison or require bail from the person so charged, and in every case of bailment shall certify the bailment in writing ; and shall have authority to bind all persons by recognizance, to appear to prosecute or give evidence against the party accused, in like manner as in cases of felony, and shall subscribe all examinations, informations, bailments and recognizances, deliver or cause the same to be delivered, to the proper officer of the court in which the trial is to be, before or at the opening of the court, in like manner as in cases of felony."

By 7 Geo. 4, c. 38, s. 1. Commissioners for trying offences committed at sea, or a justice of the peace, may take examinations touching offences committed within the jurisdiction of the Adiniraliy, and may commit the parties charged.

Mode of taking examinations-questioning the prisoner.] Where an examination (taken under the statute of P. and M.) was offered in evidence, and the magistrate who took it stated that he had examined the prisoner to a considerable extent, in the same manner as he was accustomed to examine a witness, Richards, C. B. rejected the examination, saying that it was irregular in the magistrate to examine a prisoner in such a manner.

Wilson's case, Holt, 597 (a). But the contrary was held by Mr. Justice Holroyd. Stark. Ev. App. part iv. p. 52, 1st ed.f And it was ruled the same way at the Old Bailey, on an indictment for murder. Jones's case, 2 Russ. (a). In a late case also, Mr. Justice Littledale held the decision of Holroyd, J., to be correct, and adnitted an examination partly elicited by questions put by the magistrate. *Ellis's case, Ry. and Moo. N. P. C. 432 (6). See also Thorn- [*55 ]

New ed. 2 vol. p. 29.
(a), Eng. Com. L. Rep. iii. 192. (6) Id. xxi. 483.

ton's case, 1 Moody, C. C. 27 (a), ante, p. 39, and Rees's case, C. and P. 569 (6). Bartlett's case, Id. 832 (c).

It is conceived, however, that while a magistrate may fairly put questions to a prisoner to explain or elucidate some portion of his statement, he ought not by interrogating the prisoner in the first instance to extract a confession; neither ought he, on the other hand, to dissuade him from confessing. Green's case, 5 C. and P. 312(d). The proper course of proceeding was laid down by Lord Denman, C. J., in a very recent case. * A prisoner is not to be entrapped into making any statement, but when a prisoner is willing to make a staternent, it is the duty of magistrates to receive it; but magistrates before they do so ought entirely to get rid of any impression that may have before been on the prisoner's mind, that the statement may be used for bis own benefit; and the prisoner ought also to be told that what he thinks fit to say will be taken down, and may be used against him on his trial.” Arnold's case, 8 C. and P. 621. (e) (1).

Mode of taking examinations-must not be upon oath.] The examination of a prisoner must not be taken upon oath. Where the examination of a prisoner was produced, commencing—“The examination of A. B., taken on oath before," &c. Le Blanc, J., rejected it, and would not permit evidence to be given that no oath had, in fact, been administered, saying, that he could not allow that which had been sent in under the hand of a magistrate to be disputed. Sinith's case, 1 Stark. 242 (f). So Parke, J., rejected an examination of the prisoner, concluding “ taken and sworn before me," and signed by the magistrate, and would neither allow the magistrate's clerk to prove that, in fact, it was not sworn, nor would he receive parol evidence of what the prisoner said. Rivers's case, 7 C. and P. 177 (8). But where the prisoner, being mistaken for a witness, was sworn, but the mistake being discovered, the deposition, which had been commenced, was destroyed, and the prisoner, subsequently, after a caution from the magistrate, made a statement, Garrow, B., received that statement. Webb's case, 4 C. & P. 564 (h). And where a prisoner had been examined upon oath, on a charge against another person, Parke, J., received evidence of that examination, as a confession, observing, that upon that, as upon every other occasion, the prisoner might have refused to answer any questions having a tendency to expose him to a criminal charge, and not having done so, his examination was evidence against hiin. Howarth’s case, Greenwood's Col. Stat. 138 (n). But see ante, p. 46.

Mode of taking-when reduced into writing, and when not. The statute requires that the examination, or as much thereof as may be material, shall be reduced into writing, and therefore, when reduced into writ[ *56 ] ing, such writing is the best evidence, and *parol evidence of the examination cannot be received (2). In order to render parol evidence of the examination admissible, it must be clearly proved that, in fact, such examination was not reduced into writing. Jacob's case, 1 Leach, 310. If the examination be not returned, and it is uncertain whether it has been reduced into writing or not, parol evidence will be rejected. Hinxman's case, Id. (n.) Fisher's case, Id. p. 311, (n.)

(1) People o. Smith, 1 Wheeler's C. C.54. The prisoner is not bound to answer, but if he submits to answer, and answers falsely, the prosecutor may disprove it, and it will be taken strongly against the prisoner. Case of Goldsby and al., 1 Rogers' Rec. 61.

(2) M'Kenna's case, 5 Rogers' Rec. 4. (a) 2 Eng. C. C. 27. (b) Eng. Com. L. Rep. xxxii. 633. (©) Id. xxxii. 759. (d) Id. xxiv.

335. (e) Id. xxxiv. 556. (f) Id. ii. 374. (g) Id. xxxii. 486. (1) Id. xix, 528.

But where it clearly appears that no examination in writing has been taken, parol evidence of what the prisoner said before the magistrate is admissible (1). Thus, where the only evidence against a prisoner was his examination before the magistrate, which was not taken in writing, either by the magistrate or by any

other person, but was proved by the viva voce testimony of two witnesses who were present, all the judges (except Mr. Justice Gould) were of opinion that this evidence was well received. Huet's case, 2 Lcach, 821. A written examination before a magistrate will not exclude parol evidence of a previous confession made to a third person. Carty's case, M'Nally on Ev. 45. See also 16 How. St. Tr. 35. And it was said by Best, C. J., that his opinion was, that upon clear and satisfactory evidence, it was admissible to prove something said by the prisoner beyond what was taken down by the committing magistrate. Rowland v. Ashby, Ry. and Moo. 232 (a).' So it has been ruled by Parke, J., that an incidental observation made by a prisoner in the course of his examination before a magistrate, but which does not form a part of the judicial inquiry, so as to make it the duty of the magistrate to take it down in writing, and which was not so taken down, may be given in evidence against the prisoner. Moore's case, Matthew's Dig. Cr. Law, 157; Spilsbury's case, 7 C. & P. 187 (6), S. P. But where it ought to have been taken down in writing, and it was not, Littledule, J., ruled that it was inadmissible. Maloney's case, Matthew's Dig. Cr. Law, 157. However, where on the examination of a prisoner, on a charge of stealing sheep, what was said as to the stealing of certain sheep, the property of one person, was taken down in writing by the magistrate, but not what was said as to other sheep, the property of another person ; on a question reserved for the opinion of the judges, whether any confession, as to the latter offence, could be supplied by parol evidence; and whether, as the magistrate had taken down in writing every thing he heard, and intended to take down all that was said to him, and believed he did so, parol evidence could be given of any thing else that had been addressed to him ; the judges present were all of opinion that the evidence was admissible. Harris's case, 1 Moody, C. C. 343 (c). But in Lewis's case, 6 C. and P. 162 (d), where Harris's case was cited, Gurney, B., said it was very dangerous to admit such evidence, and thought it ought not to be done in the case before him. So where the magistrate's clerk in taking down the examinations of three prisoners, had left a blank whenever any one had mentioned the name of either of the other prisoners, Patteson, J., refused to *allow the blanks to be supplied by the parol evidence of the clerk, ( *57 ] observing that the rule ought not to be extended. Morse's case, 8 C. and P. 605(e); see ante, p. 49.

Where a written examination before a coroner was inadmissible, on account of some irregularity in taking it, the nature of which does not appear in the report, Tindal, C. J. permitted the coroner to give parol evi

(1) State o. Irwin, I Hayw. 112. Collins' case, 4 Rogers' Rec. 139. (a) Eng. Com. L. Rep. xxi. 425. (b) Id. xxxii. 487. (c) 2 Eng. C. C. 343. (d) Eng.

Com. L. Rep. xxv: 333. (©). Id. xxxiv. 547.

dence of what the prisoner had said at the time of his examination. Reed's case, Moo. and Mal. 403 (a). See post, p. 58. But where the prisoner's statement was erroneously entered by the magistrate's clerk in the information book, and beaded, “The information and complaint of R. B.," and the clerk was present at the trial, and could bave explained the mistake, Gurney, B., rejected the statement. Bentley's case, 6 C. and P. 148 (b). So where in the depositions returned by the magistrate, the prisoner was stated to have said, “I decline to say any thing,” Lord Abinger, C. B., refused to hear parol evidence of a confession before the magistrate. Walter's case, 7 C. and P. 267'(c). Where, however, on the first of two investigations before the magistrate, the prisoner made a statement which the clerk took down in writing, but it was not read over to the prisoner, neither was he asked to sign it; and the magistrate returned the depositions of the witnesses on the second occasion without the prisoner's previous statement, but on the contrary with a memorandum that “The prisoner being advised by his attorney, declines to say any thing," Littledale, J., and Parke, B., were both of opinion that the statement was admissible in evidence, although the magistrate might have neglected his duty in not returning what the prisoner said. Wilkinson's case, 8 C. and P. 662 (d).

Mode of taking examinations-signature. The examination of a prisoner, when reduced into writing, ought to be read over to him, and it is usually tendered to him for his signature, though such signature is not required by the statute, and is only for precaution, and for the facility of future proof. 2 Russ. 657. 1 Phill. Ev. 115, 7th ed. (1). Where the examination of a prisoner was taken in writing, and afterwards read over to him, upon which he observed, “ It is all true enough," but upon the clerk's requesting him to sign it, he said, “ No, I would rather decline that," nor was it signed, either by him or by the magistrate; a majority of the judges were of opinion, that the written examination was rightly received in evidence. Lambe's case, 2 Leach, 552. So where the solicitor for the prosecution made minutes, at the request of the magistrale, of what the prisoner said before the magistrate, and those minutes were read over to the prisoner, who said, “It is all true," but afterwards, on the minutes being again read, objected to some parts of them, and refused to sign them, it was held that they might be read in evidence against the prisoner. Thomas's case, 2 Leach, 637. But where the examivation of a prisoner, confessing his guilt, was put into writing, and he was desired to sign it, [ *58 ] which he refused to do, although he admitted bis guilt, *Wilson, J., refused to receive it, saying, that it was competent to a prisoner under such circunstances, to retract what he had said, and to say that it was false. Bennet's case, 2 Leach, 553 (n.) And where an examination was offered in evidence, and the clerk of the magistrate stated that he took it down froin the mouth of the prisoner, and that it was afterwards read over to him, and he was told he might sign it or not as he pleased, upon which he refused to sign it, Wood, B., was of opinion that the document could not be read. In Lambe's case, the prisoner, when the examination was read over to him, said that it was true, and here, if the

(1) Pennsylvania v. Stoops, Addis. 383. People o. Johnson, 1 Wheeler's C. C. 193. (a) Eng. Com. L. Rep. xxii. 341. (b) Id. xxv. 325. (c) Id. xxxii. 506. (d) Id. xxxiv. 574.

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