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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 his 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.

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Mode of taking depositions-should 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., Thomas's case, 7 C. and P. 818 (d). Where there was an omission in the depositions, 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 depositions-signature.] 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, 854. 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. 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 only 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).

[ *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.

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, I 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, 1 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 v. Watts, 1 Wheeler's C. C. 52.

(a) 1 Eng. C. C. 88. (b) Eng. Com. L. Rep. xxxiv. 380. (c) Id. xxxiv. 556.

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 (b).

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 may 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 statement returned by the committing 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, or 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. 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, 1 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 every one 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, Ev. 68, 4th ed. And the general practice is said to be, to admit them without inquiry. Archb.

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