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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.
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 informalused 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 bis 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 o. Boyer, 2 Wheeler's C. C. 150.
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 thein 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 bave 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. Coin. L. Rep. xix. 522. (6) 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 can 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 M0o. & 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. () Id. xxxii. 633. (d) ld. xxxii. 671. 61
twined what the prisoner lead actually stateu am cued. Parke, B., wax disposed 10 overrun the electros. Las Wis sufficient primu Jacu rudener of the examined BE party kell. The beasped baron en contempt wito wa Ime wlwy euuled doubts about the proprie : DECISIONE E *use', and bought the quer011 dentroung team memimo ir The examinatus not being metal s tim cas pelor im ve jealed H. but imated that iu am cast where suci a camm mutenal he would adout lll. and retrie the pour: to: the GUIDE judges. Sansthan, 2L**, C. C. 139.
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P. C. 305, but see post); or to be bed-ridden, and there is no probability of the party again being able to leave the house ; Hogg's case, 6 C. and P. 176 (a), post; bis depositions taken before the magistrate, will be admissible in evidence. So also, if the witness is kept away by the practices of the prisoner. See post (1).
So it has been said, that if due diligence has been used, and it is made manifest that the witness has been sought for and cannot be found, or if it be proved that he was subpænaed and fell sick by the way, his depositions may be read, for that in such case he is in the same circumstances as to the party that is to use bim, as if he were dead. B. N. P. 239. Hawk. P. C. b. 2, c. 46, s. 18. It has however, been observed by Mr. Starkie, that it seems to be *very doubtful, whether the mere [*63 ) casual, and temporary inability of the witness to attend in a criminal case, be a sufficient ground for admitting his deposition, which affords evidence of a nature much less satisfactory than the testimony of a witness examined, vivâ voce, in court, and which might be procured at another time, if the trial were to be postponed. 2 Stark. Ev. 266, 2d ed. In accordance with these remarks, Patteson, J., held, that where a witness was so near her confinement as to be unable to attend the assizes, her. deposition was inadmissible. Ano Savage's case, 5 C. and P. 143 (b).
Where the prosecutrix was an old woman bed-ridden, and there was no probability she would be able to leave her house again, Gurney, B., allowed her deposition before the committing magistrate to be read, on the ground of there being no likelihood of her being able to attend at another assizes. Hogg's case, 6 C. and P. 176 (c).
Where a witness has gone to sea, his deposition cannot be read in evidence on the part of the prisoner, without the consent of the prosecutor, but with such consent it may be read. Per Coltman, J., Hagan's case, 8 C. and P. 167 (d).
It has been held, with regard to a witness examined before the coroner,
(1) So the evidence given by a witness since dead, on a former trial is competent. Wilbur o. Selden, 6 Cow. 162. Johnston r. The State, 2 Yerg. 58. Watson o. Lisbon Bridge, 14 Maine, 201. State o. De Witt, 2 Hill, 202. Rucher c. Hamilton, 3 Dana, 38. Kelly's Exr. 0. Connell's Adm., 3 Dana, 533. Robson o. Doe, 2 Blacks. 308. In Virginia, it has been held inadmissible in criminal cases. Finn o. The commonwealth, 4 Rand. 501.
So the evidence is admissible where the witness has become unable to speak from paralysis. Rogers o. Raborg, 2 Gill & J. 54. But it is not enough that he has forgotten. Drayton r. Well, 1 Nott á M'C. 409. Nor that he has become interested. Chess o. Chess, 17 Serg. & R. 409. Irwin o. Reed et al., 4 Yeates, 512. Nor that he has been convicted of an infamous crime. Le Baron o. Crombie, 14 Mass. 234. Nor it seems that he is not to be found. Wilbur o. Selden, 6 Cow. 162. Arderry v. The Commonwealth, 3 J. J. Marsh. 185. But see contra, Magill o. Cauffinan, 4 S. & R. 319. Rogers v. Raborg, 3 Gill & J. 54. Pettibone, 0. Derringer, 4 Wash. C. C. Rep. 215. Read v. Bertrand, Id. 5:38.
The very words of the witness must be sworn to. U. States r. Wood, 3 Wash. C. C. Rep. 440. Wilbur o. Selden, 6 Cow. 162. Ballenger d. Barnes, 3 Devereux, 460. Bowie o. O'Neal et al., 5 Har. & J. 266. But contra, Caton et al. o. Lennox et. al., 5 Rand. 31. Cor
Green, 10 S. & R. 14. The whole examination must be given. Wolf r. Wyeth, 11 S. & R. 149.' See the following cases as to notes of counsel: Lightner o. Wike, 4 . & R. 203. Watson o. Gilday, 11 Id. 337. Chess o. Chess, 17 Id. 409. Miles o. O'Hara, 4 Binn. 110. Foster o. Shaw, * Id. 156. The postea of the former trial must be produced. Beals o. Guernsey, 8 Johns. 446.
It is not enough that the former trial was upon the same general subject, the point in issue must be the same. Melvin v. Whiting, 7 Pick. 79. So evidence of what a deceased witness swore on a question of bail is inadmissible on the trial of the cause. Jackson & al. v. Winchester, 4 Dall. 206. See Jessup o. Cook, I Halst. 434. (a) Eng. Com. L. Rep. xxv. 341. (6) Id. xxiv. 246. (c) Id xxv. 341. (d) Id. xxxiv. 338.