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dence on a trial for murder. Nor is it necessary that the offence should be complete at the time of the deposition ; thus where the examination of a party wounded is taken, if he afterwards die of his wounds, that deposition is admissible, on a trial for the murder. Id. Radbourne's case, 1 Leach, 458; 1 East, P. C. 356, S. C.
Depositions admissible to contradict the witness. One of the objects of the legislature in requiring that the magistrate should take the deposition of the witnesses is, that the court before which the prisoner is tried, may see whether those witnesses are consistent or contradictory in the evidence they give. Vide Lambe’s case, 2 Leach, 553. The deposition therefore may be used on the part of the prisoner to contradict the evidence of the witness given at the trial (1); Strafford's case, 3 St. Tr. 131, fo. ed. Hawk. P. C. b. 2, c. 46, s. 22; and where the name of the prisoner's mother was on the indictment, and the counsel for the prosecution declined to call her, upon which the judge ordered her to be examined, and finding her evidence differing from that she had given before the magistrate, directed the deposition to be read, the judges held this correct; and Lord Ellenborough and Mansfield, C. J., thought the prosecutor had a right to call for the depositions. Oldroyd's case, Russ. and Ry. 88 (a). With respect to calling witnesses whose names are on the indictment, see further, post, title Examination of Witnesses.
*Where an accomplice, who could not read, gave evidence at [ *67] the trial, falling far short of what he stated before the magistrate, Gurney, B., refused to allow his deposition, which had been put into his hand, to be read to him by the officer of the court, at the instance of the prosecutor, with a view of examining upon it. Beardmore's case, 8 C. and P. 260 (b).
Where there are several depositions. Where several depositions had been taken before the magistrate, but one only was produced at the trial, Hullock, B., refused to receive it, though it was the only one which was taken in writing. Those not produced, he said, might be in favor of the prisoner, and it would be unreasonable to allow the prosecutor to choose which he would produce. Pearson's case, i Lewin, C. C. 97.
The correctness of this decision has been doubted, as the only deposition taken agreeably to the statute had been returned. Phill. Ev. 567, 8th ed. See Simons' case, post.
Of returning depositions.] Nothing should be returned as a deposition against the prisoner, unless the prisoner had an opportunity of crossexamining the person making the deposition. Per Lord Denman, C. J. Arnold's case, 8 C. and P. 621 (c). But where a witness has undergone several examinations, it seems proper to return them all, although those only would be admissible in evidence against the prisoner which were taken in his presence. Thus where a witness for the prosecution had made three statements at three different examinations, all of which were taken down by the magistrate, but the only deposition returned was the last taken after the prisoner was apprehended, and on the day he was
(1) Contra, People o. Watte, 1 Wheeler's C. C. 52.
committed ; Alderson, B., said, that every one of the depositions ought to have been returned, as it is of the last importance that the judge should have every deposition that has been made, that he may see whether or not the witnesses have at different times varied their statements, and if they have to what extent they have done so. Magistrates ought to return to the judge all the depositions that have been made at all the examinations that have taken place respecting the offence which is to be the subject of a trial. Simon's case, 6 C. and P. 540 (a).
It is the duty of the magistrate to return all the depositions taken before him, whether for the prosecution, or on the part of the prisoner, and not merely the depositions of those whom he thinks proper to bind over as witnesses. Per Vaughan, J., Fuller's case, 7 C. and P. 269 (6).
Prisoners entitled to copies of the depositions.] By the Prisoners' Counsel Act, 6 and 7 Wm. 4, c. 114, s. 3, “all persons who, after the passing of this act, shall be held to bail or committed to prison, for any offence against the law, shall be entitled to require, and have on demand, from the person who shall have the lawful custody thereof, and who is ( *68 ] hereby required to deliver the same, copies of the examinations *of the witnesses respectively, upon whose depositions they have been so held to bail or committed to prison, on payment of a reasonable sum for the same, not exceeding three halfpence for each folio of ninety words: provided always, that if such demand shall not be made before the day appointed for the commencement of the assizes or sessions at which the trial of the person on whose behalf such demand shall be made is to take place, such person shall not be entitled to have any copy of such examination of witnesses, unless the judge or other person to preside at such trial shall be of opinion that such copy inay be made and delivered without delay or inconvenience to such trial; but it shall nevertheless be competent for such judge or other person so to preside at such trial, if he shall think fit to postpone such trial on account of such copy or examination of witnesses not having been previously had by the party charged.”
By s. 4, "all persons under trial shall be entitled, at the time of their trial, to inspect without fee or reward all depositions (or copies thereof) which have been taken against them, and returned into the court before which such trial shall be had."
It has been held by Littledale, J. and Parke, B., that a prisoner is not entitled, under the above statute, to a copy of his own staternent returned by the comınitting magistrate along with the depositions of the witnesses. Aylett's case, 8 C. and P. 667 (c). This decision is in conformity with the strict letter of the act, but it may be doubted whether it accords with the intention of the legislature. Where the case for the prosecution, as in the trial of Greenacre for murder, depends chiefly on contradictions of the prisoner's statement before the magistrate, it seems only reasonable that his counsel should be furnished with a copy of such statement.
In the reporter's note to the above case it is suggested that at all events, according to the principles laid down by Littledale and Coleridge, JJ., in Greenacre's case, 8 C. and P. 32 (d), and post, p. 70, the judges being in possession of the depositions may direct their officer, if they think it will conduce to the ends of justice, to furnish a copy of the statement on application by the prisoner or his counsel. (a) Eng. Com. L. Rep. xxv. 532. (b) Id. xxxii. 506. (c) Id. xxxiv. 577. (d) Id. xxxiv. 280. For the rules of practice laid down with respect to cross-examining witnesses as to their depositions ; see post, tit. Practice. And see ante, p. 66.
Depositions before the coroner.] It is enacted by the stat. 7 Geo. 4, c. 64, s. 4, which repeals (as before stated) the stat. 1 and 2 Ph. and M. c. 13, that every coroner, upon any inquisition before him taken, whereby any person shall be indicted for manslaughter or murder, or as an accessory to murder before the fact, shall put in writing the evidence given to the jury before him, or as much thereof as shall be material, and shall have authority to bind by recognizance all such persons as know or declare any thing material touching the said manslaughter or murder, or the said offence of being accessory to murder, to appear at the next court of oyer and terminer, or gaol delivery, or superior criminal court of a county palatine, or great *sessions, at which the trial is to be, then and [ *69 ) there to prosecute or give evidence against the party charged ; and every such coroner shall certify and subscribe the same evidence, and all such recognizances, and also the inquisition before him taken, and shall deliver the same to the proper officer of the court in which the trial is to be, before or at the opening of the court.
Depositions taken before the coroner are admissible in the same manner as depositions taken before a magistrate, where the witness is dead, kept out of the way by the means or contrivance of the prisoner, or, as it is said, where he is unable to travel, or cannot be found. Gilb. Ev. 138. Hawk. P. C. b. 2, c. 46, s. 15. 2 Russ. 661.
2 Russ. 661. But see ante, p. 62. In one respect, however, an important distinction has been taken between depositions before a magistrate and those taken before the coroner ; the latter, as it is alleged, being admissible, although the prisoner was not present when they were taken. This is stated in a book of reputation, B. N. P. 242, on the authority of two cases, Bromwich's case, i Lev. 180; Thatcher v. Waller, T. Jones, 53 ; see also 6 How. St. Tr. 776 ; 12 Id. 851; 13 Id. 591 ; but it is observed by Mr. Starkie, 2 Evid. 278, 2d ed., that in neither of these cases was the question considered upon plain
and broad principles. It was also said by Mr. Justice Buller, in R. v. Eriswell, 3 T. R. 707, that depositions taken before the coroner, in the absence of the prisoner, are admissible. It has been observed, however, that his lordship did not, as it seems, intend to make a distinction between these depositions and those taken before a magistrate, but referred to Radbourne's case, 1 Leach, 512, as an authority, in which case the depositions were in fact taken in the presence of the prisoner. Lord Kenyon also in the same case, although he coincided in opinion with Buller, J., appears to have considered that depositions before a magistrate and before a coroner were on the same footing. 2 Stark. Ev. 278, 2d ed. The reasons given in support of the distinction are, that the coroner's inquest is a transaction of notoriety, to which everyone has access, 2 T. R. 722, and that as the coroner is an officer appointed on behalf of the public, to make inquiry into matters within his jurisdiction, the law will presume the depositions before him to have been duly and impartially taken. B. N. P. 242. Hotham, B., is stated to have received depositions taken before the coroner, though it was objected that the defendant had not been present. Purefoy's case, Peake, Év. 68, 4th ed. And the general practice is said to be, to admit them without inquiry. Archb. Cr. Law, 125, 7th ed. Mr. Phillipps observes, that the authorities appear to be in favor of such evidence being admitted, but that they are not very satisfactory. Phill. 570, 8th ed. And a writer of high reputation has stated, that the distinction between these depositions, and those taken before a magistrate, is not warranted by the legislature, and that as it is unfounded in principle, it may, when the question arises, be a matter of very grave and serious consideration, whether it ought to be supported. 2 Stark. Ev. 278, 2d ed. This opinion has been adopted by another text ( *70 ) writer of eminence. 2 Russ. 661. Mr. Phillipps *also remarks, that as far as the judicial nature of the inquiry is important, it appears to be as regular for the coroner to take the depositions in the absence of the prisoner, as it is for a justice to take the evidence in his presence. But although an inquiry by the coroner in the absence of the prisoner be a judicial proceeding, and required by the duty of bis office, yet there seems no satisfactory reason why it should not be confined to its proper objects, or why the depositions should be received under circumstances which render every other kind of depositions taken judicially inadmissible, except by express statutory provision. Phill. Ev. 570, sih ed.
The judges have power, by their general authority as a court of justice, to order a copy of depositions taken before a coroner to be given to a prisoner indicted for the murder of the party concerning whose death the inquiry took place before the coroner, although the case is not one in which the coroner would have been compelled to return them under the 7 Geo. 4, c. 64, s. 4. Greenacre's case, 8 C. and P. 32 (a).
Depositions in India, by consent, &c.] By the 13 Geo. 3, c. 63, for establishing certain regulations for the better management of the affairs of the East India Company, in all cases of indictments or informations in the King's Bench, for misdemeanors or offences committed in India, that court may award a mandamus to the judges of the supreme court, &c., who are to hold a court for the examination of witnesses, and receiving other proofs concerning the matters in such indictment or information ; and the examination publicly taken in court shall be reduced to writing, and shall be returned to the court of King's Bench in the manner directed by the act, and shall be there allowed, and read, and deemed as good evidence, as if the witness had been present. Sec. 40.
Sec. 40. Depositions with regard to prosecutions for offences committed abroad by persons employed in the public service, are regulated by statute 42 Geo. 3, c. 85. Depositions are sometimes taken by consent in prosecutions for misde
Morphew's case, 2 M. and S. 602. Anon. 2 Chitty, 199 (b). But these cannot be read if the witness is in this country. 2 Russ. 664.
(a) Eng. Com. L. Rep. xxxiv. 280. (b) Id. xviii. 305.
General Rule-affirmative to be proved. 71 | Where a fact is peculiarly within the Where the presumption of law is in favor knowledge of a party. of the affirmative.
General Rule-affirmative to be proved.] It is a general rule of evidence established for the purpose of shortening and facilitating investigations, that the point in issue is to be proved by the party who asserts the affirmative. Phill. Ev. 827, 8th ed. B. N. P. 298. It is however, necessary to look to the substance, and not to the form of the issue, for in many cases a party, by making a slight change in the form of his pleading, might make the issue affirmative at his pleasure. Per Lord Abinger, C. B., Soward v. Leggatt, 7 C. and P. 613 (a). There are some exceptions to the above rule.
Where the presumption of law is in favor of the affirmative.] As the above rule is not founded on any presumption of law in favor of the party, but is merely a rule of practice and convenience, it ceases in all cases where the presumption of law is thrown into the other scale.
6 Where the law,” says Gilbert, C. B., "supposes the matter contained in the issue, there the opposite party must be put into the proof of it by a negative, as in the issue of ne unques accouple in loyal matrimonie, the law will suppose the affirmative without proof, because the law will not easily suppose any person to be criminal; and therefore, in this case the defendant must begin with the negative.” Gilb. Ev. 145.
In general, therefore, as the law presumes that every person acts legally, and performs all the matters which he is by law required to perform, the party who charges another with the omission to do an act enjoined by law, must prove such omission, although it involves the proof of a negative (1). Thus in an information against Lord Halifax for refusing to deliver up the Rolls of the Auditor of the Exchequer, it was held that the plaintiff was bound to prove the negative, viz. that Lord Halifax did not deliver them, for a person shall be presumed duly to have executed his
office till the contrary appear. B. N. P. 298.
B. N. P. 298. So in an action for the recovery of penalties under the Hawkers and Pedlars' Act, (29 Geo. 3, c. 26, s. 4; repealed and re-enacted by 50 Geo. 3, s. 7) against a person charged with having sold goods by auction in a place in which he was not a householder, some proof of this negative, *viz. of the defendant not being a [*72] householder in the place, would be necessary on the part of the plaintiff. Phill. Ev. 828, 8th ed. So in ejectment for not insuring according to cove
(1) Commonwealth r. James, 1 Pick. 375. Jackson o. Shaffer, 11 Johns. 513. Hartwell r. Root, 19 Johns. 345.
(a) Eng. Com. L. Rep. xxxii. 654.