A Digest of the Law of Evidence in Criminal Cases

prisoner had said so, the case might have been different. Tellicote's case, 2 Stark. 484 (a); and see Jones's case, 2 Russ 658, post, p. 59. It seems difficult to maintain the decision in Tellicote's case. Where the examination is offered in evidence as a document, to which authority is given by statute, there seems to be no objection to its reception on the ground of the party's subsequent dissent, which is evidence to go to the jury. Where a confession is made to another person than a magistrate, and afterwards retracted, the whole would, without doubt, be admissible, and it is difficult to distinguish the two cases. The prisoner having refused to sign his examination before the magistrate, or to admit its truth, Bayley, J., allowed parol evidence to be given of the prisoner's statement, and permitted the magistrate's clerk to read over the examination to refresh his memory. Dewhurst's case, 1 Lewin, C. C. 47. So where the prisoner made a statement, which was taken down in writing by the magistrate's clerk, but was not signed by the prisoner, Patteson, J., thought it the more safe course that the examination should not be read, but that the clerk should use it to refresh his memory. Pressley's case, 6 C. and P. 183 (b). In the above case it was of no practical importance which course was adopted, but there appears no reason for treating a prisoner's examination, which, although not signed by him, complies with all the requisites of the statute, as an informal document. See further as to signature by a prisoner, post, p. 60.

If the examination is taken down in writing by a constable only, and is not, therefore, under the statute, yet if the prisoner signs it, the paper itself may be read in evidence. Swatkin's case, 4 C. and P. 550 (c). This rests upon the general principle of law, with regard to admissions, under which, letters, &c. are read in evidence (1).

Examinations informal-used to refresh the memory of witness.] If the examination of a prisoner has been taken down in writing, but not in such a manner as that the writing itself is admissible under the statute, parol evidence of what the prisoner said is admissible, vide ante, p. 57; and in such case the writing may be referred to by the witness who took down the examination, in order to refresh his memory. Thus, where a person had been examined before the lords of the council, and a witness took minutes of his examination, which were neither read over to him after they were taken, nor signed by him; it was held that although they could not be admitted in evidence as a judicial examination, yet [*59 ] the witness might be allowed to refresh his memory with them, and having looked at them, to state what he believed was the substance of what the prisoner confessed in the course of his examination. Layer's case, 16 How. St. Tr. 215. So where an examination taken at several times, was reduced into writing by the magistrate, and on its being completed, was read over to the prisoner, but he declined to sign it, acknowledging at the same time that it contained what he had stated, although he afterwards said, that there were many inaccuracies in it; it was held that this might be admitted as a memorandum to refresh the memory of the magistrate, who gave parol evidence of the prisoner's statement. Jones's case, 2 Russ. 658, (n). So in Tellicote's case, ante, p. 57, supposing the written

(1) See Commonwealth v. (a) Eng. Com. L. Rep. iii. 442.

Boyer, 2 Wheeler's C. C. 150.

(b) Id. xxv. 345. (c) Id. xix. 522.

document was inadmissible, yet the clerk of the magistrate, who was called as a witness, might have proved what he heard the prisoner say on his examination, and have refreshed his memory by means of the examination, which he had written down at the time. 2 Russ. 658. See 4 C. and P. 550 (n.) (a). And see Dewhurst's case, ante, p. 58. So where, on a charge of felony, the examination of the prisoner was reduced into writing, by the magistrate's clerk, but nothing appeared on the face of the paper to show that it was an examination taken on a charge of any felony, or that the magistrates who signed it, were then acting as magistrates; Patleson, J., permitted the clerk to the magistrates to be called, and to refresh his memory from this paper. Tarrant's case, 6 C. and P. 182 (b), and see Pressley's case, Id. 183 (c), ante, p. 57.

The effect of the statutes is properly stated to be, that a written examination taken in conformity to them is evidence per se, and the only admissible evidence, of the prisoner having made a declaration of the things contained therein; whereas at common law (unless the prisoner had signed the paper, or on its being read to him, had allowed it to be true) the confession must have been proved by some one who heard it and could recollect it, and the writing could only have been made use of by the person who wrote it, to refresh his memory with it. 2 Russ. 659, (n).

Mode of proof.] It is laid down by Lord Hale, that in proving examinations of prisoners, and informations of witnesses taken before justices of the peace, oath is to be made in court by the justice or his clerk, that the examinations or informations were truly taken. 2 Hale, P. C. 52, 284. In practice, however, it is said, in a book of authority, to be certainly not unusual to permit the examination to be read upon proof of the identity of the instrument, and of the handwriting of the magistrate if he has signed the examination which now, by statute 7 Geo. 4, c. 64, he is in all cases required to do. 2 Russ. 659, (n.) It is obviously desirable that some person, who was present at the examination, and who can state the mode in which it was taken, should be called to prove it. Where upon [ *60] an indictment for murder, it was proposed *to prove the prisoner's examination before the coroner, by evidence of the handwriting of the latter, and by calling a person who was present at the examination, it appearing that there were certain interlineations in the examination, Lord Lyndhurst said, that he thought the clerk who had taken down the examination, ought to be called, and the evidence was withdrawn. Brogan's case, Lanc. Sum. Ass. 1834, MS. But where the magistrate who had signed the examination was present to prove the signature, Holroyd, J., held that it was not necessary to call the clerk who had written it. Hobson's case, 1 Lewin, C. C. 66. And where the examination purported to be the examination of the prisoner, and was signed by him and the magistrate, proof of their handwriting was held sufficient, and that it was unnecessary to show that it was taken from the prisoner's mouth, or that he deposed to the facts contained in it. Priestley's case, coram Parke, J., 1 Lewin, C. C. 74.

In one case, Patteson, J., on the authority of 2 Hale, P. C. 284, though contrary to his own opinion, refused to admit the examination, (which a witness said he saw signed by the prisoner and the magistrate, and heard

(a) Eng. Com. L. Rep. xix. 522. (b) Id. xxv. 345. (c) Id. xxv. 345.

prisoner had said so, the case might have been different. Tellicote's case, 2 Stark. 484 (a); and sce Jones's case, 2 Russ 658, post, p. 59. It seems difficult to maintain the decision in Tellicote's case. Where the examination is offered in evidence as a document, to which authority is given by statute, there seems to be no objection to its reception on the ground of the party's subsequent dissent, which is evidence to go to the jury. Where a confession is made to another person than a magistrate, and afterwards retracted, the whole would, without doubt, be admissible, and it is difficult to distinguish the two cases. The prisoner having refused to sign his examination before the magistrate, or to admit its truth, Bayley, J., allowed parol evidence to be given of the prisoner's statement, and permitted the magistrate's clerk to read over the examination to refresh his memory. Dewhurst's case, 1 Lewin, C. C. 47. So where the prisoner made a statement, which was taken down in writing by the magistrate's clerk, but was not signed by the prisoner, Patteson, J., thought it the more safe course that the examination should not be read, but that the clerk should use it to refresh his memory. Pressley's case, 6 C. and P. 183 (b). In the above case it was of no practical importance which course was adopted, but there appears no reason for treating a prisoner's examination, which, although not signed by him, complies with all the requisites of the statute, as an informal document. See further as to signature by a prisoner, post, p. 60.

Examinations informal-used to refresh the memory of witness.] If the examination of a prisoner has been taken down in writing, but not in such a manner as that the writing itself is admissible under the statute, parol evidence of what the prisoner said is admissible, vide ante, p. 57; and in such case the writing may be referred to by the witness who took down the examination, in order to refresh his memory. Thus, where a person had been examined before the lords of the council, and a witness took minutes of his examination, which were neither read over to him after they were taken, nor signed by him; it was held that although they could not be admitted in evidence as a judicial examination, yet [ *59 ] the witness might be allowed to refresh his memory with them, and having looked at them, to state what he believed was the substance of what the prisoner confessed in the course of his examination. Layer's case, 16 How. St. Tr. 215. So where an examination taken at several times, was reduced into writing by the magistrate, and on its being completed, was read over to the prisoner, but he declined to sign it, acknowledging at the same time that it contained what he had stated, although he afterwards said, that there were many inaccuracies in it; it was held that this might be admitted as a memorandum to refresh the memory of the magistrate, who gave parol evidence of the prisoner's statement. Jones's case, 2 Russ. 658, (n). So in Tellicote's case, ante, p. 57, supposing the written

(1) See Commonwealth v. Boyer, 2 Wheeler's C. C. 150.

(a) Eng. Com. L. Rep. iii. 442. (b) Id. xxv. 345. (c) Id. xix. 522.

document was inadmissible, yet the clerk of the magistrate, who was called as a witness, might have proved what he heard the prisoner say on his examination, and have refreshed his memory by means of the examination, which he had written down at the time. 2 Russ. 658. See 4 C. and P. 550 (n.) (a). And see Dewhurst's case, ante, p. 58. So where, on a charge of felony, the examination of the prisoner was reduced into writing, by the magistrate's clerk, but nothing appeared on the face of the paper to show that it was an examination taken on a charge of any felony, or that the magistrates who signed it, were then acting as magistrates; Patteson, J., permitted the clerk to the magistrates to be called, and to refresh his memory from this paper. Tarrant's case, 6 C. and P. 182 (b), and see Pressley's case, Id. 183 (c), ante, p. 57.

Mode of proof.] It is laid down by Lord Hale, that in proving examinations of prisoners, and informations of witnesses taken before justices of the peace, oath is to be made in court by the justice or his clerk, that the examinations or informations were truly taken. 2 Hale, P. C. 52, 284. In practice, however, it is said, in a book of authority, to be certainly not unusual to permit the examination to be read upon proof of the identity of the instrument, and of the handwriting of the magistrate if he has signed the examination which now, by statute 7 Geo. 4, c. 64, he is in all cases required to do. 2 Russ. 659, (n.) It is obviously desirable that some person, who was present at the examination, and who can state the mode in which it was taken, should be called to prove it. Where upon [*60 ] an indictment for murder, it was proposed to prove the prisoner's examination before the coroner, by evidence of the handwriting of the latter, and by calling a person who was present at the examination, it appearing that there were certain interlineations in the examination, Lord Lyndhurst said, that he thought the clerk who had taken down the examination, ought to be called, and the evidence was withdrawn. Brogan's case, Lanc. Sum. Ass. 1834, MS. But where the magistrate who had signed the examination was present to prove the signature, Holroyd, J., held that it was not necessary to call the clerk who had written it. Hobson's case, 1 Lewin, C. C. 66. And where the examination purported to be the examination of the prisoner, and was signed by him and the magistrate, proof of their handwriting was held sufficient, and that it was unnecessary to show that it was taken from the prisoner's mouth, or that he deposed to the facts contained in it. Priestley's case, coram Parke, J., 1 Lewin, C. C. 74.

(a) Eng. Com. L. Rep. xix. 522. (b) Id. xxv. 345. (c) Id. xxv. 345.

the former cautioned), because neither the magistrate nor his clerk was called to prove it. Richard's case, 1 Moody and Rob. 396 (n). In a subsequent case, where the examination had the signature of an attesting witness, who, on being called, proved that after the prisoner made her statement, it was taken down and read over to her, and she put her mark to it, after which the witness set his name as attesting the mark, and the examination was then signed by the magistrate; Vaughan, J., and Patteson, J., at the Central Criminal Court, admitted it; Patteson, J., observing, that he was by no means satisfied, that it was in any case necessary to call either the magistrate or his clerk. Hope's case, 1 Moo. and Rob. 386 (n.), 7 C. & P. 136 (a), S. C. But in a case before Denman, C. J., where it was proposed to prove an examination, signed with the prisoner's mark, by calling a person who was present when it was taken, his lordship refused to receive this evidence, unless it were proved by the magistrate or his clerk; he observed, that the necessity of proving the deposition in this manner had been doubted, but the distinction appeared to him to be, that where the examination of a prisoner before a magistrate is taken down in writing, and signed with the prisoner's name, it need not be proved by the magistrate or his clerk; but if not signed by him, or if his mark only be attached to it, it is necessary to be proved by the magistrate or the clerk. For if the prisoner signs his name, this implies that he can read, and has read the examination, and adopted it. But if he has not signed it, or has only put his mark, there are no grounds to infer that he cau read, or that he knows the contents, and no person can swear that the examination has been correctly read over to him, except the person who read it. Chappel's case, 1 Moo. & Rob. 395.

In another case, Bosanquet, J., and Alderson, B., expressed an opinion that proof of the magistrate's signature was sufficient to show that the examination had been duly taken. The examination, however, was [ *61 not read, the prisoner being convicted on other evidence. Mary Foster's case, 7 C. and P. 148 (b). In Rees's case, 7 C. and P. 568 (c), Denman, C. J., admitted an examination on proof of the signatures of the magistrate and prisoner, without calling either the magistrate or his clerk. So where a witness swore that he was before the magistrate, and heard the prisoner's statement read over to him by the clerk, and also proved the magistrate's handwriting to the depositions returned to the court; Parke, B., received the statement in evidence against the prisoner. Reading's case, 7 C. and P. 649 (d). It does not appear from the reports, whether the statements in this case, and in Mary Foster's case, were signed by the prisoner.

The magistrate's signature to an examination which bore the prisoner's mark, was proved by a bystander, who stated that the magistrate's clerk was writing when the prisoner was examined, and appeared to be taking down what he said. That when the examination was finished, the clerk repeated to the prisoner (apparently from the paper on which he had been writing) what the prisoner had said, and the prisoner then put his mark to the paper. But whether the prisoner's statement was taken down correctly, or indeed at all, he had no other means of judging. It was objected, that the clerk should have been called to prove that the examination produced was the same he had taken down, and that it con

(a) Eng. Com. L. Rep. xxxii. 468. (b) Id. xxxii. 473. (c) Id. xxxii. 633. (d) ld. xxxii. 671.

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