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So where upon an indictment for stealing a physician proved Wnere a wit-
that he had seen the prosecutor on the morning of the trial, and ness is too ill
that he was not able to attend in consequence of a second attack <\etce, though
of paralysis; he could not speak, and could not be made to hear, he might at-
and if brought he would not be able to give evidence ; but he * end witnout
might be brought without danger of his life, though he ought not nf ef his depo-
to be permitted to roam abroad. He had been seen in the street sition is ad-
the day before near his shop-door. It was objected that the missibl e.
prosecutor was not so ill as not to be able to travel according
to the words of the statute, and that an application ought to have
been made to postpone the trial ; but the sessions held that, as he
was disabled from giving evidence at the trial by an attack of
illness not plainly appearing to be temporary, his deposition was
admissible ; and, upon a case reserved, it was held that this ruling
was right, (p) So where a witness was suffering from a tendency Where a wit-
to softening of the brain, and the surgeon proved that he was not n ? ss cannot
in a -condition to give evidence, as the effect of giving evidence wilho^it dan
would be dangerous to his life ; but he could go to the train in a ger to his life,
cab and by the train; he was so ill and nervous, however, that
if vigorously cross-examined lie would soon get confused, and
could not be depended upon ; and, though he could travel with-
out material injury to his health, he could not complete the object
of his journey ; the deposition was admitted. (//)

(»») Rex r. Hogg, 6 C. & P. 176. Reg. B. March 18. r )4.
v. Wilshaw, C. & M. 145, Coltman, J., (p) Reg. v. Cockburn, D. & P.. 203.

post,?. 493. II. T. 1857.

<«) Reg. v. Day, 6 Cox, C. C. 55, ((/) Reg. v. Wilson, 8 Cox, C.C 453,

March 1852. Piatt, B. Jan. 7, 18C>1 . The Recorder on the au-

(0) Beg. v. Wicker, 18 Jurist, 252. ttaority of Reg. v Cockburn,
Channell, Serjt., after consulting Parke,

H 1! 2



4G8



Of Evidi nee.



[book VI.



Cases where
the proof has
been insuffi-
cient to satisfy
the court that
the witness
was too ill to
attend.



Generally a
surgi on should
he called to
prove the
illness of the
witness.



as to the
pregnancy and
di livery of

women.



Pregnancy



A material witness had gone before the grand jury <>n the first
day of the session, and had gone home at night and returned in
the morning for two days: bu1 <>n the morning of the trial she
had been seized with a bowel complaint, and when the policeman
lefl Hounslow she was unable to travel; it was held thai the
deposition was not admissible, as it was not satisfactorily proved
that the witness was so ill as to be unable to travel, (r) So where
a constable proved thai he saw a witness in bed at nine o'clock
the evening before, and he had a cold and inflammation, and was
attended by a medical man. and on inquiry that morning he
heard the witness was very had; it was held that the deposition
was not admissible, (s)

>o where a witness had seen another witness, whose deposition
was proposed to he given in evidence, in bed and apparently ill
on the L8th of .March, and she was then attended by a surgeon^
and the trial was on the 23rd of March; Patteson, J., said, ' 1
think that, in order to allow a deposition to he read in evidence
under this enactment, the surgeon should he called, if there he
one attending the witness. There, no doubt, may he cases where
a person may he not in a state of health to be ahle to be present
at a trial, and yet is attended by a surgeon, and in such cases
other evidence may be sufficient, especially when the inability of
the witness is of such a nature as to prevent even the possibility
of his attendance as a witness; 1 and rejected the deposition. (f)
So where the attorney for the prosecution proved that lie had
seen a witness a few days before, and found him ill of a fever;
Erie, J., refused to admit the deposition ; as the witness, not
being a medical man, could not speak as to the nature of the
disease, (w) So where a police constable proved that he saw
King in bed on the morning of the trial. He had fever, ami the
divisional surgeon was attending him. Yesterday morning he was
in lied, and is not able to get up yet. He had heard thai King
had been confined to his bed about a fortnight; and he produced
a certificate. Byles, J., refused to admit King's deposition, saying,
' I am of opinion that, to make this deposition admissible, there
should he evidence of a medical man on oath, or other evidence
upon oath, which the court might think of equal value to sworn
medical evidence. The constable says he has been told King is
suffering from fever; how can lie know the illness is of such a
nature as to render the witness " so ill as to he una hie to travel?"
A medical man is the proper witness of that fact.'(r)

Where a material witness for the prosecution had been delivered
of a child a week before, and was unable to travel : it was con-
tended thai the prosecutor knew the state in which the witness
was, and oughl to have applied to postpone the trial ; hut it was
held thai the deposition was admissible, a- every requisition of

the statute had been complied with. (Or )

Where on an indictment for bigamy a surgeon stated that he



(r) Reg. v. Harris, l Cox, C. C. 440.
Aug. 1850. The Common Serjeant. It
[a n< t stated who proved the illness.

i; .. - I llmi r, i Cox, <'.<'. 142.
ii' |g 50. The ( lommon S< i

(i) R< g. o. Riley, 3 C. & K. 1 1C.
March 1851.



00 Reg. v. Philips, 1 F. & F. 105.
March 1858.

(«) Reg. v. Welton, 9 Cox, C. C
Nov. 1862.

(»•) Reg. v. Harney, i Cox.C. C. 441.
Aug. 1850. Gurney, Commr.



chap. iv. § in.] Depositions. 469

had found a witness in a very advanced state of pregnancy, and without ill-
only about a month from the time of her delivery, and not in a uu " Si
fit state to come to the assizes; there was no illness or anything
the matter independently of the pregnancy, l>nt that rendered it,
unsafe for her to travel. Crompton, J., ' 1 cannot receive the
deposition as evidence. The deponent is not ill, and 1 have
already held, whether rightly or wrongly, that mere apprehension
of ill consequences is not sufficient. 1 am not very positive on
the point, because I believe a different opinion has been enter-
tained, but 1 shall adhere to my former opinion, as evidence of
this kind ought not be admitted lightly.' (x)

Where it was proposed to put in the deposition of a woman, on Delivery of a
the ground that she was ill and unable to attend, it being stated dead child.
that she had been delivered of a dead child ; Willes, J., said, e It
must not be supposed that the fact of a woman having been
delivered nine days ago constitutes an illness within the meaning
of the statute ; but we have it in evidence that she was delivered
of a dead child, which would tend to produce a morbid state of
body, and therefore her deposition may be read.' (y) But where Illness merely
a woman had only mst been confined, and she had been seen the !. rom a c ' 011 "

*/ *j ■* n Moment.

day before by the attorney for the prosecution, who stated that
she w r as in bed, but came down stairs to see him, and appeared to
be very feeble, and was not able to come to the assizes ; Willes, J.,
held that her deposition was inadmissible, as it should be such
a sort of illness as Avill prevent a person from travelling ; but
here the facts failed, (z)

Where it was proved that a woman was daily expecting her Pregnancy
confinement, and her brother stated that she was poorly otherwise, ™ ay con ? t | ,ut0

. ' „ ... i' /• i • -t illness within

and that she was therefore too ill to travel from her residence t ,j ie statute,
to the place of trial, a distauce of twenty-five miles ; it was and it is for
objected that the illness ought to have been proved by a medical *J* e £°.°J t t on
man, and that the expectation of her confinement was not an decide whe-
illness within the 11 & 12 Vict. c. 42, s. 17; but the sessions ther it doesor
admitted the deposition ; and on a case reserved on the points not -
raised on behalf of the prisoner, it was held that the deposition
was properly admitted. The proposition that an approaching con-
finement was not such an illness as was contemplated by that
section could not be sustained. There might be incidents attend-
ing an approaching parturition of such a nature as to bring it
within the statute. The question whether the illness proved is
or is not within the statute, is a question for the determination of
the presiding judge, and if to his mind, exercising his discretion
upon the facts proved, the evidence of illness is sufficient, the
court above ought not to interfere with his decision. («)

Or) Reg. v. Omant, 6 Cox, C. C. 4fi6, (a) Reg. v. Stephenson, L. & C. 165,

Julv 1854 ; but see Reg. v. Stephenson, E. T. 1862. Erie, C. J., thought that

L. & C. 165, infra. the sessions acted rightly in admitting the

(y) Reg. v. Wilton, 1 F. & F. 309. deposition. In Reg. v. Huddersfield. 7

Sum. Ass. 1858. E. & B. 794, it was held that pregnancy

(2) Reg. v. Walker, 1 F. & F. 534. was not necessarily ' sickness' within the
Spring Ass. 1859. Willes, J., also said meaning of the 9 & 10 Vict. c. 66, s. 4,
that ' illness from confinement was an which forbids the removal of a pauper
ordinary state, and not such an illness as ' becoming chargeable in respect of re-
is contemplated by the statute,' and that lief made necessary by sickness or acci-
Crowder, J , agreed with him, but he in- dent,' unless it will produce permanent
tended to reserve the point. disability. Lord Campbell. C. J., said,



470

Pregnancy

where the wo-
man had suf-
fered from a
journey.



A depositii n

is not a<l 111 i -

sible meri lv
on the ground
thai the wit-
ness cannot he
found after
diligent
search; hut it
is, if the ab-
sence of the
witness has
been procured
by the pri-
soner.

A deposition
is only ad-
missible
against the
prisoner pro-
curing such
absence.



Of Evidence.



[book VI.



[890]

Witness insane
at the time of
the trial.



Where a husband stated that his wife was pregnant and unable
t<> attend; but lie was unable to state how Cat' advanced she was,
and she was about the house attending to her household duties as
usual, and had prepared breakfast for him that very morning as
usual, and had not vet been confined to bed; but a fortnight
before she had suffered somewhat in consequence of being driven
to the assize town ; Bramwell, 11., permitted the deposition to be
read, (b)

Notwithstanding the ucav statute, a deposition of a witness,
who has been kept away by the procurement of the prisoner, is
admissible. Scaife, Smith, and Rooke were tried for robbery,
and the deposition of one (iarnctt, which had been regularly
taken before a magistrate, in the presence of the prisoners, was
tendered in evidence. Due search had been made for the witness
on the part of the prosecution, but she could not be found, and
did not appear on the trial, and there was evidence that she had
been kept away by the procurement of Smith; but this evidence
did not implicate the other prisoners. The reading of this de-
position was objected to on the part of Smith; but the learned
judge admitted it, being- of opinion that the procurement by
Smith was proved ; and in summing up he left Garnett's state-
ment, among the other evidence, to the jury, not telling them that
the deposition could affect Smith only. Upon a motion for a new
trial after a verdict of guilty against Scaife and Rooke, it was
held that the deposition was rightly admitted in evidence against
Smith ; for if it be proved that a witness is kept away by the
procurement of the prisoner, the deposition of that witness is ad-
missible ; but that the deposition was erroneously left to the jury
against the other prisoners ; for a deposition is not admissible on
the ground that the prosecutor, after using every possible en-
deavour, cannot find the witness ; and the deposition is only
evidence against the prisoner who procured the absence of the
witness, (c)

W here a witness, who was examined before the magistrate,
is insane at the time of the trial, he is considered as in the same
state as if he were dead, and his deposition may be given in
evidence, (d) But in such a case it should be shown that he was
not insane at the time his deposition was taken. Where on an
indictment for murder it was clearly proved that a witness, who
had been examined before the coroner, was insane at the time
of the trial, and had been so for some time previously, but there
was no evidence as to the state of the mind of the Avitness at the



* It is impossible to Bay thai pregnane]

per se shows disease : and I think that
by "sickness" in the statute is meant
"disease." There is nothing to show
that the pauper was unable to work ; the
question propo8i d to the court shows her

to lie able-bodied. So that we are asked
whether an able-bodied woman who is
pregnant i- siek within the meaning of

tie- Bection. It cannot he said that she
is.' ( Joler dge, •!., ' It does not follow that
because pregnancy may produce illness,
it must produce it.'

(b) Keg. v. Croucher, 3 F. & F. 2So.



Sum. Ass. 1862. The prisoner was ac-
quitted, or the point would have been re-
served.

(c) Reg. v. Scaife, 17 Q. B. 238 ; 2
Den. C. C. 281. E. T. 1851.

(</) Rex v. Eriswell, 3 T. R. 707, per
Lord Kenyon, C. J., Ashurst, J., ami
Grose, J., and there seems no reason t i
doubt that the deposition of a person who
has heroine insane at the time of the
trial would he admissible since the new
statute, either on the same ground ;i-
Seaife, svpra, or Re£. v. C'ock-
burn, ante, p. 4G7, was decided.



chap. iv. § in.] Depositions. 471

time when he was examined before llie coroner; and it was pro-
posed to give his deposition in evidence, Park, J. A. .)., said,
* There is one positive objection, that the witness might be insane
when lie was examined before the coroner;' and the deposition
was rejected. (?) But where on an indictment Tor oighi poaching
and assaulting W. Richards it appeared that he was suffering
from delirium and depression of spirits in consequence of a blow
on the head, and his intellects were affected by the injury, but it
was probable that he wonld recover; it was held that if he was
actually insane at the time of the trial his deposition taken in the
presence of the defendant was receivable in evidence, although
the insanity might be temporary; but the medical witness, being
unable to state that he was at the time of the trial in a state
of insanity, the deposition was rejected, (f)

It has been said that the deposition of a witness beyond the Witness at the
sea was admissible, (g) but it was held before the new Act that tlllic oi |" a! al
the deposition of a witness, who had been examined before the
magistrate, and who had since gone to sea, was inadmissible. (A)
And since the new Act, where on a trial for larceny it was pro-
posed to put in evidence the deposition of W. Doodt, which had
been duly taken in the presence of the prisoner, who had the
opportunity of cross-examination, and it was satisfactorily proved
that W. Doodt was not absent with any intention of defeating
justice, but, being a foreigner, serving on board a foreign vessel
at the time the property was stolen, he had, since the committal
of the prisoners, returned to his own country, and at the time of
the trial was residing in a foreign kingdom. It was contended
that, although the cause of absence was not within the 11 & 12
Vict. c. 42, s. 17, the deposition was receivable independently of
that statute. But, on a case reserved, it was held that the de-
position was inadmissible. Although it Avas quite possible that
cases might occur in which depositions would be receivable in
evidence under the old rule, and independently of the statute, yet
if the admissibility of depositions was extended beyond the cases
provided for by the statute, the rule ought to be carefully and
rigidly limited, (i) And in this case it was consistent with what
appeared that the attendance of the witness might have been
obtained, and it was not shown that anything was done by writing
or otherwise to procure his attendance. (/)

It is a general principle of evidence that, to render a deposition Deposition
of any kind admissible against a party, it must appear to have must be dul y
been taken on oath in a judicial proceeding, and that the party ta ^ en >
should have had an opportunity to cross-examine the witness, (k)
Hence under the former statutes a deposition before a magistrate

(e) Rex v. Charles Wall, Worcester (h) Reg. v. Hagan, 8 C. & P. 167,

Sum. Ass. 1830. See this case more fully Bolland, B., and Coltman, J.

stated, post, p. 480. In Rex v. Eriswcll, («') Per Alderson, B., who added, 'as

supra, the pauper, whose examination it would equally apply to depositions

was in question, had become insane after taken before a coroner in the prisoner's

the examination was taken. absence, and without any opportunity of

(/) Reg. v. Marshall, C. & M. 147, cross-examination having been afforded.'

Ludlow, Serjt., after consulting Coltman, (j) Reg. v. Austin, Dears. C. C. 612, 7

J. It is not stated in the report when Cox, C. C. 55. Jan. 1856.

the blow on the head was inflicted. (k) By Hullock, B., in Attorney-Gc-

(g) Bull. N. P. 242, and see ante, p. neral v. Davison, 1 M'Clel. & Y. 169.
356.



and in the
presence of
prisoner.



[891]



472 Of Evidence. [bookvi.

must have been shown to have been taken conformably to the
statute, for otherwise it would have been extrajudicial, (/) and to
have been taken in the presence of the prisoner, otherwise he
could have- had no opportunity for cross-examination. Thus in
Woodcock's case (who was tried for the murder of his wife), where
the magistrate, at the request of the overseers, visited the de-
ceased, who had received a mortal blow, and was then at the
poor-house, and there, in the absence of the prisoner, took her
examination upon oath, and reduced it into writing ; it was held
by Eyre, C. B., that such an examination was not admissible as a
deposition; for it was not taken as the statute directs in a case
where the prisoner was brought before a magistrate in custody;
the prisoner therefore had no opportunity of contradicting the
Dingler's ease facts it contained, (m) So in Dingler's casc,(n) where the magis-
trate, at the desire of the parish officers, went to the deceased at
the infirmary, to which she had been taken for the purpose of
receiving medical assistance, and there, in the absence of the
prisoner, (0) took her deposition upon oath, which was reduced
into writing, and her mark Avas set to it; the court, on the
authority of Woodcock's case, held that the deposition was in-
admissible. (]>) And it was also held, after the 7 Geo. 4, c. 64,
that a deposition was inadmissible if it were taken in the absence
of the prisoner, (q) Where on the trial of an indictment for
petty treason and an inquisition for murder it appeared that
the deceased having been wounded in the head, a magistrate, in
the presence of the prisoner, took the deposition of the deceased
in writing, and the whole of the examination was heard by and
read over to the prisoner in the presence of the deceased, and
it was signed by the deceased and the magistrate ; the deposition
was admitted, and, upon a case reserved, it was held that the
deposition was properly admitted, (r) So where the greater part



Radbournc's
case.



(/) Rex v. Smith, 2 Stark. N. P. C.
211. note (a).

(wi) 1 Leach, 500. It was admitted,
however, as a dying declaration.

0) 2 Leach, '561.

(o) It may be remarked that in these
two cases, independently of i he absence
of the prisoner, the deceased bein^ then
alive, the charge of murder could not
have been preferred : and as the statutes
did not at that time extend to misde-
meanors, the depositions might have been
objected to as taken extrajudicially.

(p) In addition to these authorities
may be mentioned the case of Rex v.
Paine, 1 Balk. 281. S. C. 5 Mod. 163,
cited by Lord Kenyon in Rex v. Eriswell,
3 T. R. 1ti, where upon a conference
between the judges of the K. B. and C. P.
it was held thai the deposition of a de-
ceased witness was inadmissible, 'the
defendant noi being present when they
were tak' ii before the mayor, and so had
lost the benefit of cross-examination.' It
is remarkable that in the al ove men-
tion, ii case "i Bex v. Eriswell, Grose, J.,
and Bailer, J., were of opinion that de-
positions taken by a justice of a person
who afterwards died, though laken in the
absence of the prisoner, might he read,



and the latter judge said it had been so
determined by all the Judges in Rad-
hourne's case. But on reference to the
report of that case in 1 Leach, 457, it
will be seen that the depositions were
taken in the presence of the prisoner.

(q) Errington's case, 2 Lew. 142, Patte-
son, J.

(r) Rex v. Radhourne, 1 Leach, 457.
This case was a peculiar one, and the
points reserved were, 1st, '-whether a pri-
soner can be convicted of murder upon
an indictment or inquisition for petty
treason ? That is, whether an acquittal
for the petty treason does not involve in
it an acquittal for the murder also ? 2nd,
whether the information of the deceasi tl,
authenticated by one witness only, was
legally received in evidence on an in-
dictment for petty treason ? 3rd, whe-
ther the information of the deceased was
admissible in evidence, she not appearing
at the time she gave it to be apprehen-
sive of her approaching dissolution?' The
Recorder afterwards reported that it was
the unanimous opinion of the elevt n
judges, Lord Mansfield, C. J., being absent,
that the learned judge did right in ad-
mitting the informat to be received in

evidence, and that the prisoner was le-



chap. iv. § in.] Depositions. 473

of the deposition of the deceased, in a case of murder, had been Smith's case.
reduced into writing in the absence of the prisoner, but the
deceased was afterwards resworn in the prisoner's presence, and
the deposition read over and stated by the deceased to be correct,
"and the rest of the deposition taken in the ordinary way, in the
presence of the prisoner, who was asked whether he chose to put
any questions; it was held by Richards, C. B., that the depo-
sition was admissible, and a great majority of the judges, upon a
case reserved, were of opinion that the evidence had been properly
received, (s) So where upon an indictment against the prisoner Russell's case.
as an accessory before the fact for inciting S. Wormsley to
murder herself, it appeared that Wormsley was sworn, and her
examination taken in writing in the absence of the prisoner, but
that she was afterwards resworn in his presence, the deposition
repeated, and she said it was all true, and that she had made her
mark to it ; the prisoner then put some questions to the deceased,
and the magistrate's clerk swore that a memorandum at the foot
of the deposition contained the substance of every question put
and answer given ; and that the memorandum at the foot of the
deposition was written on the following morning by the clerk at
his office in the presence of the magistrate. The examination [892]
was objected to, as inadmissible under the 7 Geo. 4, c. 64, s. 2,
being taken upon oath ; but Vaughan, B., allowed it to be read,
and also the interrogation of her by the prisoner, and her answer,
which was also objected to. And, upon a case reserved, the judges
were clearly of opinion that the deposition was admissible. (J)
So where two prisoners were taken before the magistrates one Hake's case.
day, and a deposition of a witness was duly taken and authen-
ticated on that day, and the two prisoners together with a third
were taken before the magistrates on the next day, and the de-
position of the witness, who w r as present, was read over to all the
prisoners ; but the attention of the third prisoner was not par-
ticularly called to its contents, nor was it resigned by the magis-
trates ; Erie, J., held that the case fell within the principle of
Hex v. Smith, (u) and admitted the deposition against the third
prisoner. («) So where a deposition was taken in an ante-room Calvert's case.

gaily convicted of murder. In 1787, ficient opportunity of cross-examination ;



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