OXFORD CIRCUIT.

MONMOUTHSHIRE SPRING ASSIZES, 1852.

Monmouth, March 26.

(Before Mr. JUSTICE WIGHTMAN.)

REG. v. DILMORE. (a)

Admissibility of depositions of deceased persons-Statute 11 & 12 Vict. c. 42, s. 17-Identity of offence charged in the indictment with that preferred before the justices.

Under the statute 11 & 12 Vict. c. 42, s. 17, which, after providing for the taking of depositions before justices, enacts that, upon proof at the trial of the death, &c., of the deponent," it shall be lawful to read such depositions as evidence in such prosecution;"

Quare, whether the deposition of a deceased person on a charge against the prisoner of stabbing him, can be read on a trial for the murder or manslaughter of the deceased.

HE prisoner was indicted for manslaughter.

THE

The indictment charged that the prisoner, on the 4th day of August, 1851, "did feloniously kill and slay" one Joanni Stoicovich.

On the part of the prosecution it was sought to give in evidence the deposition of the deceased, taken on the 14th of August, 1851, the wound having been inflicted on the 4th August, and the deceased having lived until the 16th of that month.

The deposition was headed as follows:

Borough of Newport,) The examination of Joanni Stoicovich, in the county of late seaman on board the Elodie, of Monmouth, to wit. Trieste, lately lying in the Newportdock, taken upon oath this fourteenth day of August, A.D. 1851, at Pillgwently, in the said borough, before me, Thomas Hughes, Esq. one of Her Majesty's justices of the peace in and for the said borough, in the presence and hearing of Cesare Dilmore, charged before me the said justice, for that he the said Cesare Dilmore did on the 4th day of August instant, at the said borough, feloniously stab, cut and wound the said Joanni Stoicovich in the belly with a knife, or some other cutting instrument, of which stabbing, cutting and wounding the said Joanni Stoicovich is likely to die." Huddleston, for the prisoner, submitted that the deposition could

(a) Reported by J. E. DAVIS, Esq., Barrister-at-Law.

REG.

v.

DILMORE.

1852.

Evidence

not be read. It was proposed to read it under the provisions of the statute 11 & 12 Vict. c. 42, s. 17. That section enacts "That in all cases where any person shall appear or be brought before any justice or justices of the peace, charged with any indictable offence," &c. the justices shall take the examinations of the witnesses in the manner therein stated; and then proceeds to Deposition of a enact that, "if, upon the trial of the person so accused as first deceased person. aforesaid, it shall he proved by the oath or affirmation of any credible witness, that any person whose deposition shall have been taken as aforesaid is dead," &c. " it shall be lawful to read such deposition as evidence in such prosecution." In this case, the charge before the magistrates was one of stabbing, and not a charge of manslaughter. He submitted that the deposition can only be given in evidence where the charge before the magistrate is the same as that for which the prisoner is subsequently indicted. The statute says, "upon the trial of the person so accused as first aforesaid," referring to the accusation before the magistrate. [WIGHTMAN, J.-If that is so, the deposition of a deceased person cannot be used in any case where the charge is connected with his death.](b) The question had been raised in a case before Mr. Greaves, Q. C. sitting at Gloucester, to try prisoners, and after conferring with Lord Campbell and Mr. Justice Williams, it was held that a deposition on a charge of assault was not admissible on an indictment for cutting with intent to do grievous bodily harm, but that the indictment must be for the same offence as that charged before the justices: (Reg. v. Ledbetter and others, Gloucester Summer Assizes, 1850.) (c)

Barrett, on the same side, urged that it was a hardship on the prisoner to receive the deposition of the deceased in this case. It would not be admissible on an indictment for stabbing, unless the prisoner was present at the time, so as to cross-examine the witness; and the deposition, when complete, consisted of the cross-examination as well as of the examination-in-chief. Here there could have been no cross-examination as to the charge with which the prisoner now stood indicted. [WIGHTMAN, J.-The hardship you put scarcely arises in this case. The charge is varied by the death, but the charge is still manslaughter by cutting and wounding.] The statute which enables depositions to be read in the absence of the witness ought to be construed strictly. Supposing a prisoner to be indicted for highway robbery and wounding, would a deposition of an absent or deceased witness taken on a charge before the magistrates of wounding only, be admissible? Surely not.

Skinner, for the prosecution.-The question has been already decided. The case of R. v. Smith, R. & R. 339 (cited in Archbold, p. 149, 11th edition), is expressly in point. There it was held that depositions taken on a charge of assault were, after the death of the deponent, admissible against the defendant on his trial for the murder of the deponent, who died in consequence of the

(b) See Mr. Starkie's note to Smith's case, 2 Stark. Rep. 212.-[J. E. D.] (e) The case was cited from a M.S. note of Mr. Greaves, Q.C.—[J. E. Ď.]

REG.

v.

DILMORE.

1852.

Evidence

assault. That was a decision subsequent to the statute 7 Geo. 4, c. 64, which merely provided for the taking of depositions, and contained no provision respecting the admissibility of depositions in the event of the death of the deponent. The recent statute simplified the powers under the former statute, and was not inDeposition of a tended to diminish but to extend their operation. The 11 & 12 deceased person. Vict. c. 42, in using the terms, "in such prosecution,” must be taken to mean the prosecuting the inquiry to an end, whatever particular form it might assume from intervening circumstances. The charge before the magistrates was for stabbing, cutting and wounding Joanni Stoicovich, "of which stabbing, cutting and wounding the said Joanni Stoicovich is likely to die." That was the charge here, subject to the change in the particular offence arising from the death of the deponent.

[WIGHTMAN, J.-What is the offence charged on the face of the depositions? It seems to be stabbing, simpliciter. Is that an offence, except as including an assault, it not being alleged that the stabbing was done unlawfully or maliciously?]

Huddleston in reply.-The case of R. v. Smith was not on the present statute. Moreover, the case before Mr. Greaves, at Gloucester, with the opinion of Lord Campbell, showed that Smith's case was not law. It was an unsatisfactory decision. Several of the judges expressly stated that they should have doubted the admissibility of the evidence in that case, but for Radbourne's case, 1 Leach, 457 (see 2 Russell on Crimes, by Greaves, 894, note f.)

WIGHTMAN, J.-There is no decision precisely in point. The case cited at Gloucester differs in one respect from this. There the original charge was an assault, here there is something more. The recent alteration in the law, making it unnecessary to set out the means of death in the indictment, increases the difficulty, for here the indictment merely alleges that the prisoner did feloniously kill and slay the deceased. The question raised here is one of the greatest importance, for it is in those cases where an injury has been done to the deponent of which he subsequently dies that it is desirable to have his evidence. If it is a casus omissus the statute ought to be amended forthwith. It may be that the Legislature has omitted to provide for the very cases where the necessity chiefly arises, but if so it is a most extraordinary defect. I shall receive the evidence and reserve the point if necessary.

The deposition was then read.

The prisoner was ultimately acquitted.

WIGHTMAN, J. observed, that although it no longer became necessary in this case to discuss the point raised with reference to the admissibility of the deposition, it was very important that the question should be settled without delay.

OXFORD CIRCUIT.

GLOUCESTERSHIRE SPRING ASSIZES, 1852.

Gloucester, March 29.

(Before Mr. BARON PLATT.)

REG. v. DAY. (a)

Evidence-Depositions-Admissibility of depositions in the absence of the witness, under the statute 11 & 12 Vict. c. 42, s. 17.

Before a deposition of a person who is dead, or so ill as not to be able to travel, can be read on the trial, under the statute 11 & 12 Vict. c. 42, 8. 17, it must be proved affirmatively on the part of the prosecution that the deposition was taken in the presence of the accused person, and that he or his counsel or attorney had a full opportunity of crossexamining the witness.

To give the accused a full opportunity within the meaning of the statute, the examination must be taken, question by question, in his presence, and in the presence of the magistrate, and it is not sufficient to read over the statement of the witness, previously taken and committed to writing, in the absence of the magistrate.

The accused must also be asked whether he has any question to put with reference to the statement of the individual witness.

To render the deposition of an absent person admissible, it is not necessary that he should be absolutely unable to travel; it is sufficient if his attendance would place his life in jeopardy.

THE prisoner was indicted for larceny as a servant.

Her

mistress, Keturah Cornbill, the prosecutrix, was alleged to be unable to attend in consequence of illness, and, in order to allow of her deposition, taken before the committing magistrate, being read as evidence on the trial under the provisions of the statute 11 & 12 Vict. c. 42, s. 17, a medical witness was called, who stated that he visited the prosecutrix the previous afternoon at her house, a distance of several miles from Gloucester, and found her suffering from bronchitis. She was sitting up in a chair, supported by pillows. The witness examined her, and remained about half-an-hour, and he was of opinion that her life would be endangered if she was brought into court. On cross-examination, he stated that he was not her ordinary medical attendant, but visited

(a) Reported by J. E. DAVIS, Esq., Barrister-at-Law.

REG.

DAY.

1852.

Evidence

her for the purpose of ascertaining whether she was in a fit state to attend and give her evidence.

A relative, a great-nephew of the prosecutrix, corroborated this evidence. He said his aunt was about sixty years of age, and had been an invalid for some years. She was confined to her bed the Deposition, day before the visit of the medical witness, but was rather better the next day. She was wrapped in flannel, but he did not hear her cough. Her usual medical attendant had seen her on the day she was confined to her bed, but he was unable to attend at Gloucester to give evidence, being in daily attendance on Lord Dynevor. The witness thought his relative was quite unable to attend as a witness.

W. H. Cooke, for the prisoner, submitted that the evidence was insufficient. The statute 11 & 12 Vict. c. 42, s. 17, required the proof to be that the witness is "so ill as not to be able to travel." The evidence amounted to nothing more than that it would be imprudent for the prosecutrix to attend, or at most that she was unfit to travel, and not such a total inability as the statute required. This was a new provision, and ought to be applied with great care and strictness.

PLATT, B.-It is sworn that the attendance of the witness would endanger her life. Each case must of course be governed by its own circumstances. Here enough has been shown to render the deposition admissible.

Huddleston then applied to have it read by the officer of the court, but

PLATT, B.-Something further is necessary. You must show that the deposition was taken conformably with the statute.

The magistrate's clerk was called. He stated that the prisoner was present with her father when the deposition of the prosecutrix was taken. The magistrate asked the prisoner whether she had any questions to put; but there was a little uncertainty in the evidence of this witness whether she was so asked with reference to the particular examination of the prosecutrix, or whether it was a general question at the end of the examination of another witness. A police officer was then examined. He was a witness on the same occasion. He could not recollect whether the prisoner was asked if she had any questions to put to the prosecutrix; but he disclosed the fact that the examinations of the witnesses were taken and committed to writing by the clerk previously to the arrival of the magistrate, that they were then read over in the presence and hearing of all parties, and that it was then, if at all, that the prisoner was asked if she had any questions to put to the prosecutrix. PLATT, B., expressed his opinion that the deposition was inadmissible.

Huddleston submitted that the statute had been sufficiently complied with, if the deposition appeared on the face of it to be regularly taken. The statute provides that "If such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as