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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.' It will be observed
that the principal alterations enacted by
the latter statute are, that the coroner
is to put in writing the evidence instead
of the effect of the evidence, as directed
by the former, and that he is required
to subscribe the evidence when taken.
A doubt has been raised whether sec. 4 of
the 7 Geo. 4, c. 64, is not repealed by the
1 1 & 12 Vict. c. 42, s. 34, but there seems
no sufficient ground for this duubt ; see
ante, p. 352, note (A).

(/) 2 Phill. Ev. 75. In the 7th ed., vol.
1, p. 372, et seq., the learned author had
contended for the admissibility of such
depositions. Where in an action brought



by the plaintiff against the defendant for
running down his barge on the Thames,
it appeared that a witness had been ex-
amined before the coroner on the inquiry
concerning the death of the plaintiff's
son, and since his examination had gone
abroad ; it was proposed on the part of
the defendant to read his deposition, taken
on oath, before the coroner; and this was
objected toon the part of the plaintiff;
Coleridge, J., was of opinion that under
the circumstances the deposition ought to
be admitted, and being properly proved,
it was read in evidence. Sills v. Brown,
9 C. & P. 601. The report does not
state whether the deposition was taken in
the presence of the plaintiff, but probably
it was, as he was the father of the de-
ceased. It is probable, also, that the
witness was produced by the father as
prosecutor ; but even if that were so, it
is conceived that that would not make
his deposition evidence against the father,
the distinction being that an affidavit ased
by a party is evidence of the facts con-
tained in it against such party, but neither
the deposition nor the viva voce evidence
of a witness is evidence against the party
calling the witness. Brickell v. Hulse,
7 A. & E. 454. Gardner v. Moult, 10
A. & E. 464. Pritcbard v. Bagshawe, 1 1
('. B. 459. Boileau v. Butlin, 2 Exeh.
R 665. Richards v. Morgan, 4 B. & S.
641. C. S. G.

(tn) Infra, note («).



480 Of Evidence. [book vi:

when he was examined before the coroner. Secondly, the 7 Geo. 4,
c. 04, makes a strong distinction between magistrates and coroners.
There is a charge made before a magistrate ; but I cannot call it a
charge before a coroner. In Hex v. Smith the deposition was taken
in a common felony, and there the question was, whether a deposi-
tion taken on one charge could be evidence on another. I will not
receive this deposition. I think it safer not to do so.' (?i)

The objection to the admission of a deposition taken by a coro-
ner in the absence of a prisoner is fortified by the 11 & 12 Vict,
e. t2,s. 17. expressly requiring the deposition before a magistrate
to be taken in the presence of the prisoner, and giving him a full
right of cross-examination.
Coroner's It is the duty of the coroner to take down the statement of each

duty in taking witness, to read it over to him, and to procure his signature to it, (o)
examinations. an( j then the depositions are admissible ; but a coroner's note of
the evidence, which has not been read over to the witness, is not
evidence, (p)
Doubts as to Where two witnesses who had been examined before the coro-

the admissi- nor were too ill to attend the trial, and an application was made to
bility of de- y their depositions before the grand jury ; Wightman, J., having

positions be- •. l . . . . . ° , •> •> J , ° . . . . &

fore a coroner referred to the Act authorizing the use ot depositions where wit-
since the nesses are too ill to attend, said he was of opinion that it gave him
11 * 12 Vlct " power to treat depositions that were taken before a coroner in the
same way as those taken by a magistrate, {q) Where it was pro*
posed to put in the deposition of a witness before the coroner,
Erie, C. J., doubted whether the deposition was admissible under
the 11 & 12 Vict. c. 42, s. 17, and alter consulting Wightman, J.,
said he should admit the deposition under the statute of Philip
and Mary, subject to the doubt whether that statute was not re-
pealed by Jervis's Act. (/•) So where in a case of manslaughter an
application was made that the deposition of a witness, who had been
examined before the coroner, but was too ill to travel, might be
laid before the grand jury ; Willes, J., said that depositions taken
before a coroner were not governed by the 11 & 12 Vict. c. 42, and,
having taken time to consider, told the prisoner of the application
that had been made, and asked her if she had any objection to her
trial being postponed, and, upon her saying that she had, the
deposition was allowed to be read before the grand jury. (s)

(n) Rex v. Cbarles Wall, Worcester (p) Per Giirncy, B., ibid. The Act
Sum. Ass. 18.'!0, MSS. C. S. G. The only requires the coroner's signature,
distinction taken by the learned judge (7) Reg. v. Hazell, 8 Cox, C C. 4-13.
.-. ■ciii> to di-M rrvcuiuch consideration. The Spr. Ass. 1861. But the trial, being foi
ground on which a deposition before a murder, was postponed, Wightman, J.,
magistrate is admissible is that the pri- doubting whether in so serious a case the
Roner, being there to answer a charge, power ought to be exercised, and the conn-
has the right to cross-examine the wit- scl on both sides assenting to that coursa
nesses. In many cases before coroners, The 11 & 12 Viet. c. 4u, has nothing to
. even if the prisoner be present, their is do with coroners, and no doubt this re-
no charge, and perhaps no suspicion, port is incorrect.

against him, and it may be doubted (r) Reg. w. Cleary, 2 F. &F. 850, Spr.

whether in strictness under any circum- Ass. 1862. The deposition was not

stances he lias ;i right to cross-examine pressed. The statute of Philip & Marj

the witnesses ; and if there were no charge was repealed by the 7 Geo. 4, c. 04. and

infaci made agaiusi him, his interference the doubt is whether sec. 4 of that A.ct

would be an unwarranted interruption of is repealed by the 11 & 12 Vict, c. 4:;, s.

the proceedings. See the observations of 34. See note (A), ante, p. 352.

Parke, B. in Blclen v. Andrews, ante, p. (*) Reg. v. Mooney, 9 Cox, C. C. 411.

42.'i. C S <i. The point would have been reserved, but

Per Gnrney, B.. Reg v Plummcr, die bill was thrown out.

1 ('. & K 600 Sum. A . 1844.



CHAP. IV. § III.]



Depositions.



There really is no ground for these doubts. The 1 1 & 12 Vict.
c. 42, only applies to depositions before magistrates. The 7 (ieo.4,
e. 64, s. 4, regulates depositions before coroners, and is notrepealed

by the 11 & 12 Vict. c. 42; and it has never been doubted that
under the 7 Geo. 4, c. 64, s. 4, depositions taken before a coroner
in the presence of the prisoner were admissible, (t)

If the depositions were duly taken before the new statute, they
were receivable in evidence, after the death of the deponent, not
only upon the trial of the prisoner for the offence with which he
was charged at the time they were taken, but upon an indictment
for another offence. Thus a deposition was held admissible in a
case of murder, although it was taken when the prisoner had been
brought before two magistrates upon a charge of an assault upon
the deceased, and also upon a charge of robbing a manufactory
which the deceased had been employed to guard, (u)

But the particular wording of the 11 & 12 Vict. c. 42, s. 17,
has led to much doubt upon this subject, (w)

Upon an indictment for wounding T. Goode with intent to do
him grievous bodily harm, it appeared that at the time of the trial
T. Goode was too ill to attend, and that his deposition had been
taken before the committing magistrate according to the 11 & 12
Vict. c. 42, s. 17, on a charge of assault against the prisoner, Avhich
was founded on the same identical evidence as was offered in sup-
port of the present indictment : and it was held that this deposition
was not admissible in evidence upon this indictment. Where a
prisoner was taken before a magistrate on any charge, his attention
would necessarily be directed to that particular charge, and his
cross-examination would probably be directed to meet such charge
alone ; in addition to which cases might well be supposed in which
the justice might prevent the prisoner from cross-examining as to
anything which did not appear to him relevant to the particular
charge then pending before him. Upon these grounds it would be
very unreasonable to permit a deposition taken on a charge for one
offence to be admitted against a prisoner on a trial for a different
offence. Then, if the words of the section itself were carefully
examined, it was plain that they only authorized the giving in evi-
dence of a deposition upon an indictment for the very same offence
as was ' charged ' before the justice. The section commences by
directing the manner in which a deposition is to be taken against
any person ' charged with any indictable offence,' and afterwards
provides that ' if upon the trial of the person so accused ' certain



481

No ground for

such doubts.



[894]
Depositions
admissible
upon trial of
a different
offence.



Since the 11 &
12 Vict. c. 42.

A deposition
taken on a
charge of as-
sault held not
admissible on
an indictment
for cutting
with intent to
do grievous
bodily harm.



(/) See ante, p. 352, note (h)

(«) Rex v. Smith, R. & 11. C. C. R.
339. S.C. 2 Stark. N. P. C. 208. Eleven
of the judges met. Abbott, J., thought
the evidence ought not to have been re-
ceived. Dallas, J., Graham, B., Richards,
C. 11, and Lord Ellenborough stated that
they should have doubted of the admissi-
bility of the evidence but for the case of
Rex v. Radbourne, 1 Leach, 457. See
supra, p. 472, note (r).

O) In Caudle v., Seymour, 1 Q. B. 889,
where a clerk went upstairs and took the
information of a girl as to an assault, on
oath, whilst the magistrate remained in
he kitchen, and it did not appear that he
VOL. III. I



heard what the girl said, it was held that
the information was illegally taken, as it
was not taken in the presence of the ma-
gistrate. Coleridge, J., said, ' It is far too
common a practice for the clerk to ex-
amine the witness apart, and take down
the answers, and then read them over in
the magistrate's presence ; ' and again,
' A magistrate taking depositions has a
discretion to exercise ; he is to examine
the witness, hear his answers, and judge
of the manner in which they are given.
If he does not, how is he in a condition,
supposing the charge were felony, to de-
cide whether or not bail shall be taken ? '



482 Of Evidence. [book vi.

proof be given, such deposition may be read 'as evidence in such
prosecution.' Now that must mean a prosecution for the very
offence ' charged' before the justice, (w) Whether, therefore, the
reason of the thing or the words of the section Avere considered, a
deposition could only be admissible where the indictment was for
the same identical offence as that ' charged ' before the justice, and
upon which such deposition was taken, and consequently this depo-
sition must be rejected, (x)
Deposition on But where the prisoner was indicted for manslaughter, and the
a charge of deposition of the deceased had been taken on a charge that the
feloniously prisoner did feloniously stab, cut, and wound the deceased, of which
mitted on a " stabbing, cutting, and' wounding the deceased was likely to die,
trial for man- and the preceding case was cited; Wightman, J., received the
slaughter. deposition, saving, ' There is no decision precisely in point. The

case cited differs in one respect from this. There the original
charge was an assault ; here there is something more.' (y)
A deposition ( )n a trial for murder it appeared that between the blow and the

on a charge death the deposition of the deceased had been duly taken before a
withintent to justice, in the presence of the prisoner, on the charge of wounding
do grievous the deceased with intent to do some grievous bodily harm to him,
bodily harm anc [ the admission of this deposition was objected to on the ground
a triaffor ° D tnat * nc deposition was not taken on the same charge for which the
murder. prisoner was on his trial, and the two preceding cases Avere cited;

but the deposition was received, and, on a case reserved on the
question whether the deposition taken on the charge of maliciously
wounding withintent, &c, was properly received in evidence, it was
held that it was. Before the passing of the 11 & 12 Vict. c. 42,
the deposition would have been admissible, (z) and there was
nothing in the 11 & 12 Vict. c. 42, to rendea it inadmissible, or to
restrict the rule, which had been established by practice since the
statutes of Philip and Mary. The legislature has provided • that
the persons whose evidence is to be taken shall be " those who shall
know the facts and circumstances of the case," not of the particular
technical charge on which the prisoner is afterwards tried; and
then it says that if the witness be dead the deposition may be ad-
missible "on the trial of the person so accused," not on his trial foi
the particular offence with which he was charged before the magis-
trate ; and though the charge at the trial be not identically the same
as that made when the deposition was taken, no harm can result
from holding it admissible; because it Avould always be matter for
inquiry by the judge trying the case whether the prisoner had had
a full opportunity for cross-examination; if the charge on which the
deposition was taken was not identical with that stated in the in-

(V) Sec 20 also shows that tins is the Smith, .sujna. Lord Campbell, C. J.,

meaning of this 'section, for, if a party be thought that the authority of Bex v.

bound by recognizance to give evidence Smith was very much impaired by the

against a prisoner for one offence (an as- dissent of Lord Tenterden, and all agn ad

I, be clearly would not forfeit his that that case was not binding under the

nizance by failing to give evidence 11 & 12 Vict. c. 42, s. 17.

iost such prisoner for another offence (//) Reg. v. Dilmore, 6 Cox, C. C.

(feloniously wounding). March 1852. The point would have

| ' ) fl g. I I. db tl i ■"■ C. & K. 108. been reserved, but the prisoner WH

Sum. A-. 1850 Greaves, Q. C, after quitted.

' nmpbell, <'. J., and (:) Res u. Radbourne, ante, p

J., and referring to Rex v. Rex v. Smith, ante, p. 481.



chap. iv. § in.] Depositions. 483

dictnient.' (a) ' The question is not whether the charge made on the
inquiry before the magistrate was exactly the same as that made
on the trial, but whether the inquiry was sueh as afforded to the
party accused a full opportunity of cross-examination?' (/>») ' In
Reg. v. Ledbetter it might very well have been that a full oppor-
tunity of cross-examination was not afforded. On a charge for a
common assault, the wounding subsequently charged in an indict-
ment might not have been material; (c) but here the whole of the
circumstances which came before the court at the trial were before
the magistrate, with the single exception of the death of the de-
ceased ; and the prisoner's opportunity of cross-examining was so
complete, that his counsel's ingenuity could not suggest a question
on the one inquiry which would not have been so on the other.' (</)
If this construction were not the true one, the deposition of a person,
who afterwards died, could never be used on a trial for the murder
or manslaughter of that person, (e)

But this case by no means decides that a deposition would be Where the
admissible if the charges on the two occasions were substantially c}l ; ll » os ? r , c ,

i'jt l /■ j>\ J substantially

different. (/) _ _ different.

Where on an indictment for murder by administering poison Avith Deposition on

intent to procure abortion, the deposition of the deceased had been a charge of

taken on a charge against the prisoner of having administered, or ad ?" ni8t ering

• • ~ noisou with

caused to be taken, poison in order to procure abortion ; Cockburn, intent to pro-

C. J., admitted the deposition, being disposed to think that, the cure abortion

transaction being the same, the evidence was admissible, although, pmitted ou !l

in consequence of the death of the woman having supervened, the dei-.

charge had assumed a different shape and character, (g)

Where on a trial for murder it appeared that the prisoners had Deposition on
been originally apprehended on a charge of robbing the deceased a M™ rge °/,
with violence, and the death was alleged to have been caused by violence ad-
that violence; Pollock, C. B., admitted the deposition of the deceased, mitted on a
which had been made, on the charge of robbery with violence, in jf formur ~
the presence of both prisoners, with a full opportunity of cross-
examination, (/i)

Where a charge of wounding with intent to murder was made The Act is not
before a magistrate at Bow Street, but, in consequence of the ill- ^ onfin . ed t0
ness of a witness, the prisoner was taken to Twickenham, and the taken'before
deposition of the witness taken in the presence of the prisoner by tbe magistrate
two county magistrates, and signed by them, and after a further b , cforc whom

• trip fli'i i*< r o wo ^

investigation at Bow Street the prisoner was committed ; it was made< °
held that the deposition was admissible; for the 11 & 12 Vict. c.
42, ss. 17, 18, does not confine the admissibility of a deposition to
the case of a person examined before the magistrate before whom
the charge was made, and who committed the prisoner, (i)

(a) Per Jervis, C. J. on the two occasions were substantially

(b) Per Alderson, B. different.'

(c) Alderson, B., added, ' I therefore (57) Rep;, v. Fretwcll, L. & C.161, E. T.
do not say whether Mr. Greaves was or IS 62. The point was reserved toge-
was not wrong in rejecting the deposi- ther with another, which being decided in
tion in that case.' favour of the prisoner, this point was not

((/) Per Alderson, B. noticed.

(e) Reg. v. Beeston, Dears. C. C. 405, (//) Reg. v. Lee, 4 F. & F. 63. Spr.

M. T. 1854. Ass. 1864.

(/) In Reg. v. Beeston, Jervis, C. J., (i) Reg. v. De Vidil, 9 Cox, C. C. 4.

faid, ' I do not mean to say that a deposi- Blackburn, J.
tion would be admissible if the charges

II 2



484

An informa-
tion for rape
and recogni-
zance of the
accused to
answer the
chargi

mined in order
to prove a
motive for the
murder of the
informant.



Of Evidence.



[book vi.



1) [positions
admissible be-
fore the grand
jury.

ition
must 1"'

I by de-
ponent.



On a trial for murder it appeared that the deceased had sworn
an information for rape against the prisoner in his presence, and
had subscribed it with her mark, before a magistrate, and the
prisoner had executed a recognizance, with sureties, to appear to
the charge at the ensuing assizes; before which however he married
the <li ceased, bu1 they never lived together after the marriage ; and
statements of the prisoner were proved tending to show that he
married her to prevenl the prosecution, and he had said that he
would give her a short life. Christian, J., received the information
and recognizance : but he told the jury that they were not to regard
them as evidence of anything, save simply of the facts that, before
the parties married, such a charge had been made, and the prisoner
placed under recognizances to stand his trial for it; that they had
nothing whatever to do with the question whether the charge was
true or false, but that the facts evinced by the mere existence of
these documents might be taken into their consideration, along with
the other circumstances, specially as bearing upon the question of
the existence of a motive, which might have prompted the prisoner
to the commission of the murder. And, on a case reserved, it was
held that this evidence was properly admitted. Itw r as not offered
as evidence of an information taken under the statute, but was
given in evidence as a charge found to be in writing, and which
happened to be in writing, because the information was made upon
a certain occasion. The recognizance of the prisoner was taken
upon the same occasion as that on which the charge was made, and
was also in writing, and was no more to be regarded than if the
statute had never been made. If the charge rested on parol evi-
dence, and the party by whom it. had been made had used ex-
pressions equivalent to what appeared in the information, all that
might have been given in evidence; but nothing of the sort could!
here be given in evidence, as all of it was in writing, and the only
proper evidence of the writing was the documents containing the
matters which had been so committed to writing. The documents
were not given in evidence to substantiate the truth of the charge,
but merely as to the fact that they had been made, and that the
prisoner had entered into the recognizances. (/)

Where a witness is too ill to travel, his deposition may be read
by the grand jury upon proof that it was duly taken in the presence
of the prisoner, who had an opportunity of cross-examining the
witness, and that the witness is too ill at the time to attend. (A)

The new statute requires the deposition to be signed by the per-
son making it; such signature was not necessary formerly for it>
admissibility. Upon an indictment for a rape, all the judges were
of opinion that the deposition of a girl, since deceased, upon whom
the offence had been committed, taken on oath before the commit-
ting magistrate, might be read in evidence, although it was not
signed \>\ her. | /)

The magistrate himself, however, by the 11 & 12 Vict. c. \'J.



< j) i: g, o. Lydane, 8 Cox. C. C. 38.

(li) ];■ g. v. ( !• in. hi-, 2 I), ii. C. €.
■j.'.i l. The decision tui ned on a (■ reed
constri the \\ ik \i Vict. <■. ■!-',

s. 17. I'm tin re is no doubi that at com-
mon law the deposition might lie proved



before the grand jury; c. p., where a wit-
ness is kept away by the procurement ol
the prisoner.
(/) Rex v. Flemming, 2 Leach, 854,
ee Rex v. Russell, ante, p. 4 7 "J.



chap. iv. § in.] Depositions. 485

s. 17, is required to subscribe the examinations and informations Must be by

taken by him: .and this he ought to do at each examination, and magistrate.

not to defer it till he determines on committing. (m)

Where the deposition of a prosecutor was regularly taken and One signature

read over in the presence of a prisoner, and he had an opportunity ln several de-

of cross-examining the prosecutor, and two other witnesses were i" JMl "" l - s "''

' tit • • r 11 i same sneet

examined at the same time, and the depositions oi all three were of paper.

on the same sheet of paper, the prosecutor's being first, and there
was only one signature of the magistrate, which was at the end of
the last deposition, but not in terms confined to it, being ' sworn be-
fore me ;' it was held that, after the proof by the magistrate's clerk
of the manner in which it had been taken, the deposition of the
prosecutor was admissible, (m) But where one Winter, who had On different
been examined and cross-examined before the magistrates, died sheets,
before the trial, and his deposition was duly signed by the magis-
trates, but the cross-examination, which had taken place on a sub-
sequent day, was not signed by the magistrates, but the depositions
of two other witnesses on the prisoner's behalf, which had been
taken at the same time with the cross-examination of Winter, were
pinned up along with it, and the last sheet of the whole was signed
by the magistrates ; Alderson, B., after consulting Parke, B., said,
if the magistrates' clerk could state that the sheets were all pinned
together at the time the magistrates signed the last sheet, he thought
he must receive the whole in evidence, but neither the magistrates'
clerk nor one of the magistrates being able so to state, the depo-
sition as well as the cross-examination was rejected, although the
magistrate stated that all the sheets were lying on the table when
he signed them, (o)

And where since the new statute, on an indictment for felony, it One signature
a i a tcared that H. Seedhouse had been duly examined before the com- of lh ° ma S is ~

trur c to S6Y£r£Ll

nutting magistrate according to the 11 & 12 Vict. c. 42, s. 17, and depositions



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