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tained what the prisoner had actually stated, and Chappel's case, was cited. Parke, B., was disposed to overrule the objection, thinking there was sufficient primâ facie evidence of the examination having been properly taken. The learned baron then conferred with Lord Denman who entertained doubts about the propriety of his decision in Chappel's case, and thought the question deserving the consideration of the judges. The examination not being essential in the case before him, Parke, B., rejected it, but intimated that in any case where such an examination was material he would admit it, and reserve the point for the opinion of the judges. Smith's case, 2 Lewin, C. C. 139.

The conclusion froin the above authorities is, that where the prisoner has signed the examination, neither the magistrate or his clerk need be produced, but that proof of the magistrate's handwriting will be sufficient; but that where the examination is not signed by the prisoner, or his mark only is attached, it is doubtful whether the magistrate or his clerk ought not to be called.

It would seem, however, that in order to dispense with the evidence of the magistrate or his clerk where the examination has not been signed by the prisoner, some witness must be called who was present at the inquiry before the magistrate, and heard the prisoner's statement read over to him (1).

[ *62 )



Slat. 7 Geo. 4, c. 64
When Depositions are admissible in evi-

Mode of taking Depositions

Should be fully taken
Parol evidence not admissible to vary

Depositions :
Depositions admissible on trial of other

62 offences, than that with which the
prisoner was charged

62 Depositions admissible to contradict wit-

66 65 Several Depositions

67 65 Of returning Depositions

67 Prisoners entitled to copies of Depositions 67 66 Depositions before the Coroner

68 Depositions in India, by consent, &c. 70

Statute 7 Geo. 4, c. 64.] The clauses of the statute 7 Geo. 4, c. 64, relating to taking the depositions of witnesses in criminal cases, by which the former statutes of 1 and 2 P. and M. c. 13, 14, and 2 and 3 P. and M. c. 10, are repealed, have already been stated. Ante, p. 53.

When admissible in evidence.] Although as in the former statutes, there is no express enactment in the 7 Geo. 4, that the depositions of the witnesses taken under that statute, shall be admissible in case of their death ; yet it is clear that should the witness be proved at the trial either to be dead ; 1 Hale, P. C. 305, B. N. P. 242; (and this though the deceased was an accomplice, Westbeer's case, i Leach, 12,) or to be insane ; Rex v. Eriswell, 3 T. R. 710; (or to be unable to travel ; 1 Hale,

(1) See People v. Robinson, 1 Wheeler's C. C. 240.

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 ; his 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 him, 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. Ann 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 inagistrate 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 o. The State, 2 Yerg. 58. Watson o. Lisbon Bridge, 14 Maine, 201. State o. De Witt, 2 Hill, 2c2. Rucher v. Hamilton, 3 Dana, 38. Kelly's Exr. 0. Connell's Adm., 3 Dana, 533. Robson o. Doe, 2 Blackf. 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 o. Well, 1 Nott & M'C. 409. Nor that he has become interested. Chess o. Chess, 17 Serg. & R. 409. Irwin v. 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 o. The Commonwealth, 3 J. J. Marsh. 185. But see contra, Magill o. Cauffinan, 4 S. & R. 319. Rogers r. Raborg, 3 Gill & J. 54. Pettibone, o. Derringer, 4 Wash. C. C. Rep. 215. Read o. Bertrand, Id. 538.

The very words of the witness must be sworn to. U. States o. Wood, 3 Wash. C. C. Rep. 440. Wilbur o. Selden, 6 Cow. 162. Ballenger v. 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. Cornell o. Green, 10 S. & R. 14. The whole examination must be given. Wolf o. Wyeth, 11 S. & R. 149. See the following cases as to notes of counsel : Lightner 0. 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 0. 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. o. Winchester, 4 Dall. 206. See Jessup o. Cook, 1 Halst. 434. (a) Eng. Com. L. Rep. xxv. 341. (6) Id. xxiv. 246. (c) Id xxv. 341. (d) Id. xxxiv. 338.

that if he is absent, proof that every endeavor has been made to find him, will not authorise the reading of his examination. Lord Morley's case, Kel. 55. This decision appears to have been thought by Serjeant Hawkins, to have proceeded on the ground that proper search had not been made; Hawk. P.C. b. 2, c. 46, s. 17, 18; and Gilbert, C. B. states that the examination may be read, because, as he supposes, it is to be presumed that the witness is dead, when he cannot be found after the strictest inquiry.

Gilb. Ev. 138. If the witness be kept away by the practices of the prisoner, upon proof of this, his depositions may be read. Harrison's case, 4 St. Tr. 492. Lord Morley's case, Kel. 55; 6 How. St. 2r. 776 (examination before the coroner).

The statute 7 Geo. 4, c. 64, relates only to depositions taken, where a party is charged with felony, suspicion of felony, or misdemeanor ; and in case of treason, therefore, where the common law rule remains, the depositions are inadmissible. Foster, 337; Russell, 663; I Hale, 306.

Before the depositions can be read they must be proved, which is usually done, either by calling the magistrate before whom they were taken, or his clerk who wrote them; 2 Hale, 52, 284, but see ante, p. 60; and it must appear that they are the same that were taken before the magistrate, without any alteration whatever. Hawk. P. C. b. 2, c. 40, s. 15.

Mode of taking depositions. It is a general principle of evidence, that to render a deposition of any kind evidence against a party, it must appear to have been taken on oath, in a judicial proceeding, and that the party should have an opportunity to cross-examine the witness. Per Hul[ *64 ] lock, B., Attorney General v. Davison, *M'Cl. and Y. 169. In order therefore to render a deposition admissible, it must appear, in the first place, that the requisitions of the statute have been complied with, otherwise the proceeding would be extra judicial. See 2 Stark. 211 (n) (a); 2 Russ. 660.

It must also be shown that the deposition was taken in the presence of the prisoner, and that he had an opportunity of cross-examination. Thus, where a woman had been mortally wounded, and a magistrate, at the request of the overseer of the parish, attended at the hospital where she lay, and in the absence of the prisoner, took her examination upon oath, which he committed to writing and signed, and which was signed by the woman also, who afterwards dicd; it was held that this examination was a voluntary and extra judicial act on the part of the magistrate, the prisoner not being before him, and having no opportunity of contradicting the facts it contained; but still that it was admissible as the declaration of the deceased, signed by herself, and was to be classed with the other confirmatory declarations which she made after she had received the mortal wounds, and before she died. Woodcock's case, 1 Leach, 500. In several other cases also, depositions taken in the absence of the prisoner, have been rejected (1). Dingler's case, 2 Leach, 561; Callaghan's case, 33 Geo. 3; M'Nally on Ev. 385. And the rule is the same under the 7 Geo. 4,

(1) The State o. Webb, 1 Hayw. 105.

(a) Eng. Com. L. Rep. iii. 318.

c. 64, s. 32, as it was under the 2 and 3 P. and M. c. 10. Errington's case, 2 Lewin, C. C. 142.

Where the prisoner was not present during the examination, until a certain part of the deposition marked with a cross, at which period he was introduced, and heard the remaining part of the examination, and when it was concluded, the whole was read over to him; Chambre, J., said that it was the intent of the statute, that the prisoner should be present whilst the witness actually delivers bis testimony, so that he may know the precise words he uses, and observe, throughout, the manner and demeanor with which he gives his testimony. He therefore refused to admit that part of the depositions previous to the mark, which had not been heard by the prisoner. Forbes's case, Holt, 599 (n) (a). But a different rule was acted upon in the following case. The prisoner was indicted for murder, and the deposition of the deceased was offered in evidence. It appeared that a charge of assault having been preferred against the prisoner, the deposition of the deceased had been taken on that charge. The prisoner was not present when the examination commenced, but was brought into the room before the three last lines were taken down. The oath was again administered to the deceased in the prisoner's presence, and the whole of what had been written down was read over to him. The deceased was then asked in the presence of the prisoner, whether what had been written was true, and he said it was perfectly correct. The magistrates then, in the presence of the prisoner, proceeded to examine the deceased further, and the three last lines were added to the deposition. The prisoner was asked whether he chose to put any questions to the deceased, but did not do so. It was objected, 1st that the prisoner had not been present, and 2ndly, that the *dep- { *65] osition was inadmissible, because the examination ought to be confined to the offence with which the prisoner is charged at the time, which was an assault, and could not apply to the present charge of murder. The deposition, however, was admitted, and by a majority of the judges held rightly admitted. Smith’s case, Russ. and Ry. 339(b); 2 Stark. 208 (c), S. C.

Mode of taking deposilionsshould be fully taken.] Magistrates are required by law to put down the evidence of witnesses, or so much thereof as shall be material. They have hitherto in many cases confined themselves to what they deemed material, but in future it will be desirable that they should be extremely careful in preparing depositions, and should make a full statement of all the witnesses say upon the matter in question, as the experience we have already had of the operation of the Prisoners' Counsel Bill has shown us how much time is occupied in endeavoring to establish contradictions between the testimony of the witnesses and their depositions, in the omission of minute circumstances in their statements made before the magistrates, as well as in other particulars.” Per Parke, B., Thoinas's case, 7 C. and P. 818 (d). Where there was an omission in the lepositions, of a conversation which was sworn to at the trial, and which the witness said he had told to the magistrate, Lord Denham, C.J., thought the complaint of the prisoner's counsel, that such omission was

(a) Eng. Com. L. Rep. iii. 193. (b) 1 Eng. C. C. 339. (c) Eng. Com. L. Rep. iii. 316.

(d) Id. xxxii. 750.

unfair to the prisoner, was well founded, and that the magistrate ought to have returned all that took place before him with respect to the charge, as the object of the legislature in granting prisoners the use of the depositions was, to enable them to know what they have to answer on their trial. Grady’s case, 7 C. and P. 650 (a). In Coveney's case, 7 C. and P. 663 (b), Alderson, B., stated, there is a difference between adding to a deposition and contradicting it, and he apprehended the object of the recent act was to see that witnesses did not swear a thing before the magistrate and contradict it at the trial.

Mode of taking depositionssignature. The statute does not require that the deposition should be signed by the party deposing, and upon the former statutes of Philip and Mary, it was held that such a signature was unnecessary. Flemming's case, 2 Leach, 834. But the magistrate is required by the stat. 7 Geo. 4, c. 64, to subscribe the examinations and informations taken by him. Vide, ante, p. 54.

Vide, ante, p. 54. Where the deposition of the prosecutor, who has since died, has been taken on the same sheet of paper with those of two other witnesses, and the ouly signature of the magistrate, with the words prefixed," sworn before me,” was at the end of the last deposition ; Coleridge, J., after consulting Lord Abinger, C. B., admitted the deposition in evidence, it being proved by the magistrate's clerk that the deposition was regularly taken, and read over in the prisoner's presence, and that he had an opportunity of cross-examining the prosecutor. Osborne's case, 8 C. and P. 113 (c).

1 *66 ) * Mode of taking depositions-parol evidence not admissible to vary deposition. The statute 7 Geo. 4, c. 64, requires that the depositions of the witnesses examined before a magistrate shall be taken in writing, and the presumption in all such cases is, that the magistrate has done his duty, and reduced it into writing. Fearshire's case, 1 Leach, 202. If taken in writing, parol evidence is inadmissible to vary it. Thornton's case, 1 Phill. Ev. 566, 8th ed. In the case of the examination of a prisoner, it has been decided, that where the magistrate did not hear, and consequently did not reduce into writing, a portion of the prisoner's confession, parol evidence of such portion is admissible. Harris's case, 1 Moo. C. C. 338 (d), ante, p. 56 ; but in the case of a deposition, parol evidence would, it is conceived, under similar circumstances be inadmissible. It is unlike the case of a prisoner's examination, which, if it loses its judicial character, is nevertheless the subject of oral testimony. A deposition on the other hand, if it be not admissible as a judicial proceeding, seems to possess no other character in which it can be received. Phil. Ev. 566, 8th ed. And see 2 Russ. 662.

Depositions admissible, on trial of other offence, than that with which the prisoner was charged.] The deposition of a witness since deceased, regularly taken under the statute, is admissible on the trial of an offence different from that with which the prisoner was charged at the time of the examination taken ; as in Smith's case, Russ. & Ry. 339(e), ante, p. 64, where the deposition was taken on a charge of assault, and given in evi

(a) Eng. Com. L. Rep. xxxii. 671. (b) Id. xxxii. 679. (c) Id. xxxiv. 318. (d) 1 Eng.

C. C. 338. (e) 1 Ibid. 339.

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