61

tained what the prisoner had actually stated and cated. Parke. B., was disposed to overru the Obrechor. S was sufficient prima facie evidence of the examination nav perly taken. The learned baron then conterred wi! who entertained doubts about the propriety of us decision case, and thought the question deserving the consideNtion © The exammation not being essential in the cast belor mil rejected it but intimated that in any case where suct as examines material he would admit it, and reserve the pour: to the opinate judges South & case, 2 Lewin, C. C. 139.

数

The conclusion from the above authorities is. that where the NE has signed the examination, neither the magistrate or he tiens nee produced, but that proof of the magistrate's hanowrime wil de suficien. but that where the exammation is not signed by the prisoner & DE only as attached, it is doubtful whether the magistrate or hicles not to be culied. It would seem. however, that in order to die with the evidence of the magistrate or his clerk where the examies has not been sued by the prisoner, some witness must be calit was present at the inquiry before the magistrate, and bear the presse s.diete it read over to Lau (1..

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 subpoenaed 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 af fords evidence of a nature much less satisfactory than the testimony of a witness examined, vivû 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 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 v. Selden, 6 Cow. 162. Johnston v. The State, 2 Yerg. 58. Watson v. Lisbon Bridge, 14 Maine, 201. State v. De Witt, 2 Hill, 262. Rucher v. Hamilton, 3 Dana, 38. Kelly's Exr. v. Connell's Adm., 3 Dana, 533. Robson v. Doe, 2 Blackf. 308. In Virginia, it has been held inadmissible in criminal cases. Finn . The commonwealth, 4 Rand. 501.

So the evidence is admissible where the witness has become unable to speak from paralysis. Rogers v. Raborg, 2 Gill & J. 54. But it is not enough that he has forgotten. Drayton v. Well, 1 Nott & M'C. 409. Nor that he has become interested. Chess . 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 v. Crombie, 14 Mass. 234. Nor it seems that he is not to be found. Wilbur v. Selden, 6 Cow. 162. Arderry v. The Commonwealth, 3 J. J. Marsh. 185. But see contra, Magill. Cauffinan, 4 S. & R. 319. Rogers v. Raborg, 3 Gill & J. 54. Pettibone, v. Derringer, 4 Wash. C. C. Rep. 215. Read v. Bertrand, Id. 538.

The very words of the witness must be sworn to. U. States v. Wood, 3 Wash. C. C. Rep. 440. Wilbur . Selden, 6 Cow. 162. Ballenger v. Barnes, 3 Devereux, 460. Bowie . O'Neal et al., 5 Har. & J. 266. But contra, Caton et al. v. Lennox et. al., 5 Rand. 31. Cor

nell v. Green, 10 S. & R. 14. The whole examination must be given. Wolf v. Wyeth, 11 S. & R. 149. See the following cases as to notes of counsel: Lightner v. Wike, 4 S. & R. 203. Watson v. Gilday, 11 Id. 337. Chess v. Chess, 17 Id. 409. Miles v. O'Hara, 4 Binn. 110. Foster v. Shaw, 7 Id. 156. The postea of the former trial must be produced. Beals v. 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 v. Cook, 1 Halst. 434.

(a) Eng. Com. L. Rep. xxv. 341. (b) Id. xxiv. 246. (c) Id xxv. 341. (d) Id. xxxiv. 338.

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 from 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).

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, 1 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 subpoenaed 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 v. Selden, 6 Cow. 162. Johnston v. The State, 2 Yerg. 58. Watson v. Lisbon Bridge, 14 Maine, 201. State v. De Witt, 2 Hill, 282. Rucher . Hamilton, 3 Dana, 38. Kelly's Exr. v. Connell's Adm., 3 Dana, 533. Robson v. Doe, 2 Blackf. 308. In Virginia, it has been held inadmissible in criminal cases. Finn v. The commonwealth, 4 Rand. 501.

So the evidence is admissible where the witness has become unable to speak from paralysis. Rogers v. Raborg, 2 Gill & J. 54. But it is not enough that he has forgotten. Drayton v. Well, 1 Nott & M'C. 409. Nor that he has become interested. Chess v. 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 v. Crombie, 14 Mass. 234. Nor it seems that he is not to be found. Wilbur v. Selden, 6 Cow. 162. Arderry v. The Commonwealth, 3 J. J. Marsh. 185. But see contra, Magill. Cauffinan, 4 S. & R. 319. Rogers v. Raborg, 3 Gill & J. 54. Pettibone, v. Derringer, 4 Wash. C. C. Rep. 215. Read v. Bertrand, Id. 538.

The very words of the witness must be sworn to. U. States v. Wood, 3 Wash. C. C. Rep. 440. Wilbur v. Selden, 6 Cow. 162. Ballenger v. Barnes, 3 Devereux, 460. Bowie. O'Neal et al., 5 Har. & J. 266. But contra, Caton et al. v. Lennox et. al., 5 Rand. 31. Cornell v. Green, 10 S. & R. 14. The whole examination must be given. Wolf v. Wyeth, 11 S. & R. 149. See the following cases as to notes of counsel: Lightner v. Wike, 4 S. & R. 203. Watson v. Gilday, 11 Id. 337. Chess v. Chess, 17 Id. 409. Miles v. O'Hara, 4 Binn. 110. Foster v. Shaw, 7 Id. 156. The postea of the former trial must be produced. Beals v. 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 v. Cook, 1 Halst. 434.

(a) Eng. Com. L. Rep. xxv. 341. (b) 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. Tr. 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; 1 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. 46, 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 procceding, 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 died; 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 v. Webb, 1 Hayw. 105.

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