writing, and such depositions shall be read over to and "signed respectively by the witnesses who shall have been "so examined,-and shall be signed also by the justice or "justices taking the same;-9 and the justice or justices "before whom any such witness shall appear to be examined "as aforesaid shall, before such witness is examined, admi"nister to such witness the usual oath or affirmation, 10 "which such justice or justices shall have full power and "authority to do;

"And if upon the trial of the person so accused as first "aforesaid, it shall be proved, by the oath or affirmation of any credible witness, that any person whose deposition shall "have been taken as aforesaid is dead, or so ill as not to be "able to travel, and if also it be proved that such deposition

66

was taken in the presence of the person so accused, and "that he or his counsel or attorney (see Note 2, ante, p. 942) "had a full opportunity of cross-examining the witness, then, "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 evidence in such prose"cution, without further proof thereof, unless it shall be "proved that such deposition was not in fact signed by the "justice purporting to sign the same." 11

9 It is sufficient if the justices, as directed by the Form M, here referred to [No. 51, Oke's "Formulist," 6th ed. p. 491], and by the words of this section, sign the jurat only, which is to be written at the end of all the depositions (in which jurat, as well as in the caption at the beginning of them, the names of all the witnesses are inserted), and not each deposition, as was required by the repealed act 7 Geo. 4, c. 64, s. 2. See Reg. v. Parker, 39 L. J. (N. Š.) M. C. 60; 21 Law T., N. S. 724, which so decided, overruling several previous decisions to the contrary. See also Reg. v. Carrol, 11 Cox, C. C. 322 (Hannen, J.), since decided to the same effect.

10 Vide Vol. I. pp. 84-89, as to the mode of swearing witnesses, Quakers, Jews, &c. Where a person of weak intellect is examined before a magistrate in a case of felony, the magistrate's clerk should take down in the depositions the questions put by the magistrate and the answers given by the witness as to the witness's capacity to take an oath (Wilde, Č. J., R. v. Painter, 2 C. & K. 319; 2 Cox, C. Č. 244).

11 The deposition, in order to be read as evidence, must appear to relate to the charge upon which the prisoner is being tried (Reg. v. Langbridge, 18 L. J. (N. S.) M. C. 188; 1 Den. C. C. 448: Reg. v. Miller, 4 Cox, C. C. 167; Reg. v. Beeston, 24 L. J. (N. S.) M. C. 5; 1 Dears. C. C. 405), whether before the same justice who completed the case and committed the prisoner or not is immaterial, if the deposition was taken within his jurisdiction (Reg. v. De Vidil, 9 Cox, C. C. 4, Blackburn, J.). It may also be read as evidence before the grand jury (Reg. v. Clements, 20 L. J. (N. S.) M. C. 193; 2 Den. C. C. 251), if there be medical evidence of the witness's illness (Reg. v. Phillips, 1 F. & F. 105, per Erle,

Power to take

make same cover, and to evidence in

certain events

after death of

By" The Criminal Law Amendment Act, 1867," 30 & 31 30 & 31 Vict. Vict. c. 35, s. 6, after reciting that "by the seventeenth section of c. 35. "the act eleventh and twelfth Victoria, chapter forty-two, it is deposition of "permitted under certain circumstances to read in evidence on person dangerously "the trial of an accused person the deposition taken in accord- ill and not "ance with the provisions of the said act of a witness who is likely to re"dead, or so ill as to be unable to travel;" and that "it may "happen that a person dangerously ill, and unable to travel, "may be able to give material and important information relating to an indictable offence, or to a person accused such person. "thereof, and it may not be practicable or permissible to take, Sect. 6. "in accordance with the provisions of the said act, the ex"amination or deposition of the person so being ill, so as to "make the same available as evidence in the event of his or "her death before the trial of the accused person, and it is "desirable in the interests of truth and justice that means "should be provided for perpetuating such testimony, and for "rendering the same available in the event of the death of "the person giving the same," enacts," whenever it shall "be made to appear to the satisfaction of any justice of the 'peace 12 that any person dangerously ill, and in the opinion

J.), immediately before the trial (Reg. v. Bull, 12 Cox, C. C. 31, Blackburn, J.), otherwise it will not be allowed to be read (Reg. v. Welton, 9 Cox, C. C. 296, Byles, J.; 27 J. P. 24); but if a witness refuse to give evidence before a grand jury, they cannot read his deposition (Reg. v. Rendle, 11 Cox, C. C. 209, Channell, B.). If the witness is kept away by the procurement of the prisoner, or one of them where there are several, it is admissible against him, but not against the others (Reg. v. Scaife, 20 L. J. (N. S.) M. C. 229; 2 Den. C. C. 281). But the permanent absence abroad of a witness is no reason for receiving his deposition (Reg. v. Austin, 25 L. J. (N. S.) M. C. 48; 1 Dears. C. C. 612). The deposition, however, of a witness who has an attack of paralysis and is unable to hear or speak or give evidence may be read, though it would not endanger his life to travel or to be brought into court (Reg. v. Cockburn, 26 L. J. (N. S.) M. C. 136; 1 Dears. & Bell, C. C. 203), and where a witness was too ill to give evidence, or had from an accident lost her memory, though not too ill to be able to travel, the deposition was read, the court being of opinion that the words of the statute, "so ill as not to be able to travel," were applicable to a case where the witness is so ill as not to be able to travel for the purpose of giving evidence (Reg. v. Wilson, 8 Cox, C. C. 453, per Recorder of London, and Reg. v. Adkins, per Mellor, J., Norfolk Circuit, December, 1865). Pregnancy and the confinement of women appear to be "illness" within the sect. 17 (Reg. v. Walker, 1 F. & F. 534, Willes, J.; and see Reg. v. Croucher, 3 F. & F. 285, Bramwell, B.), and are matters for the judicial discretion of the presiding judge (Reg. v. Stevenson, 31 L. J. (N. S.) M. C. 147; 1 Leigh & Cave, C. C. 165).

12 In Reg. v. Farrell, 43 L. J., M. C. 94, a witness whose depositions were duly taken was absent from the trial; and it was proved by her

30 & 31 Vict. c. 35.

Power to take deposition of person

dangerously ill, &c.

66

"of some registered medical practitioner not likely to recover "from such illness, is able and willing to give material infor"mation relating to any indictable offence,-or relating to any person accused of any such offence, and it shall not be prac"ticable for any justice or justices of the peace to take an "examination or deposition in accordance with the provisions "of the said act of the person so being ill, it shall be lawful for "the said justice to take in writing the statement on oath or "affirmation of such person so being ill, and such justice shall "thereupon subscribe the same, and shall add thereto by way "of caption a statement of his reason for taking the same, and "of the day and place when and where the same was taken, "and of the names of the persons (if any) present at the taking "thereof,-13 and, if the same shall relate to any indictable "offence for which any accused person is already committed or bailed to appear for trial, shall transmit the same with the "said addition to the proper officer of the court for trial at "which such accused person shall have been so committed or "bailed;—and in all other cases he shall transmit the same to "the clerk of the peace of the county, division, city, or borough "in which he shall have taken the same, who is hereby required "to preserve the same, and file it of record;-and if afterwards, upon the trial of any offender or offence to which the same may relate, the person who made the same statement shall "be proved to be dead, or if it shall be proved that there is no reasonable probability that such person will ever be able "to travel or to give evidence, it shall be lawful to read such "statement in evidence, either for or against the accused, with"out further proof thereof, if the same purports to be signed

by the justice by or before whom it purports to be taken, and "provided it to be proved to the satisfaction of the court, that

doctor that she was 74 years of age and very nervous; that she was liable to faint with nervousness at the idea of coming into a public court and being examined, and that it might be dangerous to her, but that she was capable of going to London (from Stafford) to see her doctor without danger or difficulty. In fact, she was living at the time of the trial in the assize town, and not far from the assize court. Upon this it was held by the Court for Crown Cases Reserved that her depositions were improperly received at the trial. Lord Coleridge said, "We think that old age and nervousness and inability to stand a cross-examination is not enough foundation for the reading of the depositions, and that it would raise a dangerous latitude in practice if we were to admit them on such grounds."

13 Vide Form of this Caption of a Deposition, No. 58, Oke's "Formulist," 6th ed. p. 495.

64

c. 35.

* Sic.

Provision for the prisoner being present at taking of

statement. Sect. 7.

"reasonable notice of the intention to take such statement has 30 & 31 Vict. "been served upon the person (whether prosecutor or accused) against whom it is proposed to be read in evidence, and that "such person, or his counsel or attorney, had or might have had, if he had chosen to be present, full opportunity of crossexamining the deceased* person who made the same." 14 Sect. 7. "Whenever a prisoner in actual custody shall have "served or shall have received notice of an intention to take "such statement as hereinbefore mentioned, the judge or justice "of the peace by whom the prisoner was committed, or the "visiting justices of the prison in which he is confined, may, "by an order in writing, direct the gaoler having the custody "of the prisoner to convey him to the place mentioned in the "said notice for the purpose of being present at the taking of "the statement ;-15 and such gaoler shall convey the prisoner "accordingly, and the expenses of such conveyance shall be "paid out of the funds applicable to the other expenses of the "prison from which the prisoner shall have been conveyed." The order in which the several witnesses will be called will be in the discretion of the prosecutor or his legal adviser (if one appears), who will of course take them in such succession as will best elucidate the facts; but if no professional man attend for the prosecution, and where the case is in any degree complicated, or the number of witnesses large, it is usual and convenient, before taking the depositions of the witnesses, for the police officer who has charge of the case to inform the magistrate's clerk of the substance of the facts to be spoken to by each witness, in order that he may conduct the examinations properly. It must however be understood, that, under

14 This proviso overrides the whole section, and therefore a deposition cannot be read without proof of the notice being given to the accused before it was taken; and that the deposition could have no operation in the case of a deposition taken while the accused was keeping out of the way, as the notice was required to be given to the accused before the taking of the statement, and not to imply before the reading of it and therefore such statements would appear to be only admissible in evidence as dying declarations (Reg. v. Quigley, 18 Law T., N. S. 211, Mellor and Lush, JJ.). It is understood that the proviso was inserted in the bill when in committee, and could not be successfully resisted at the time by the promoters of the bill. The enactments are capable of great improvement, and ought to be extended to other cases than those mentioned in this section. Vide Form of Notice, No. 59, Oke's "Formulist," 6th ed. p. 495.

15 Fide Form of Order, No. 60, Oke's "Formulist," 6th ed. p. 495.

Order of examination of witnesses.

Rules of evidence.

Proof of previous convic

tion of accused.

34 & 35 Vict. c. 112, s. 18.

the 11 & 12 Vict. c. 42, s. 17 (set out ante, pp. 945, 946), it is irregular to write the depositions down except in the presence of the justice and the prisoner, whether from notes previously taken before them or not, although they are subsequently read over to the witnesses, sworn in the presence of both, and the prisoner or his attorney has cross-examined them, and depositions so taken are inadmissible in evidence at the trial. 16

The same rules of evidence must be observed as though the case were being finally heard and determined. See Vol. I. pp. 76-108, "Evidence before Justices." If the accused has been before convicted of felony, or of any misdemeanor which subjects him to be treated afterwards for a higher offence or to a greater punishment, the practice in the Metropolitan Police Courts and City Justice Rooms is to receive evidence of such conviction on this examination, either that of the officer or other person present at the conviction or the strict legal evidence, or remand the accused for that purpose (as recommended by the Home Secretary's circular, mentioned at p. 936, Note 1), where necessary, or in some cases merely instruct the officer to be prepared with that evidence at the trial. The strict evidence of this is a certificate of the conviction from the clerk of the court, 17 with proof of the identity of the person charged. See also 7 & 8 Geo. 4, c. 28, s. 11; 24 & 25 Vict. c. 96, s. 116, extended by 34 & 35 Vict. c. 112, s. 9, to any felony and certain other offences; 14 & 15 Vict. c. 99, s. 13; 14 & 15 Vict. c. 100, s. 22. "The Prevention of Crimes Act, 1871," 34 & 35 Vict. c. 112, s. 18, contains additional and general enactments as to evidence of previous convictions, which are as follow: :

66

A previous conviction may be proved in any legal proceeding whatever against any person by producing a record or extract of such conviction, and by giving proof of the identity of the person

16 See R. v. Christopher, 1 Den. C. C. 536; 2 C. & K. 994; Reg. v. Bates, 2 F. & F. 317; Reg. v. Watts, 33 L. J. (N. S.) M. C. 63; 1 Leigh & Cave, C. C. 339.

17 In case the conviction took place at an assize, this certificate is obtained from the clerk or deputy clerk of assize of the circuit, who has the records of the court, and if at a quarter sessions, the clerk of the peace of the county or place.