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EXAMINATION RETURNED-HOW FAR CONCLUSIVE.

603

conducted in a proper manner (t); but even on the trial of a prisoner for a capital offence, the adoption of this course is not compulsory, but the writing will in strictness be admissible, on proof of the signature of the justice and the signature or mark of the prisoner (u). If the prisoner has not signed his name to the document, or attached his mark to it, some witness, who was present at the inquiry, must be called to speak to its identity, and to prove that it was read over to the accused, and was assented to by him (v). The identity of the examination may easily be established, if it be written, as it ought to be, on the same paper as the depositions of the witnesses (w). In all these cases, the law presumes that the justices have done their duty, and have delivered to the Court examinations which contain the real statements of the prisoners.

§ 646. This presumption, while it facilitates the proof of the examination as returned, precludes the production of any evidence tending to contradict or vary the statements it contains. Thus, where, in the depositions returned by the magistrates, the prisoner was stated to have said, "I decline to say anything," a witness was not allowed to prove a confession, which he declared the prisoner had made in the magistrate's presence while under examination (x); and where the clerk to the justices, in taking down the statements of three prisoners, had left blanks whenever either of them had mentioned the names of the others, the counsel for the Crown was not permitted to supply these blanks by producing supplementary parol evidence (y). Whether this presumption is of so conclusive a character, as to exclude all parol evidence which is tendered with the view of adding to the written examination, is a

(t) R. v. Pikesley, 9 C. & P. 124, per Parke, B.; R. v. Wilshaw, C. & Marsh. 145, per Coltman, J.

(u) Cases cited in last note; R. v. Foster, 7 C. & P. 148, per Alderson, B., and Bosanquet, J.; R. v. Priestley, 1 Lew. C. C. 74, per Parke, J.; R. v. Rees, 7 C. & P. 568, per Lord Denman.

(v) R. v. Reading, 7 C. & P. 649, per Parke, B.; R. v. Hearn, C. & Marsh. 109, per Coltman, J.; R. v. Hopes, 7 C. & P. 136, per Vaughan and Patteson, Js.; 1 M. & Rob. 396, n. S. C.; R. v. Haines, 2 Russ. C. & M. 886, per Bolland, B. (w) See R. v. Hearn, C. & Marsh. 109. See ante, § 644, ad fin.

(x) R. v. Walter, 7 C. & P. 267, per Lord Abinger.

(y) R. v. Morse, 8 C. & P. 605, per Patteson, J.

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EXAMINATION RETURNED-HOW FAR CONCLUSIVE.

question of doubt and difficulty: though the better opinion seems to be, that, provided such evidence be precise and distinct, and be not repugnant to the examination returned, it will be admissible (v). The statutes, as we have seen (w), require that the magistrate should reduce to writing the examination, " or as much thereof as shall be material;" but as the question of materiality is one which is necessarily indefinite, and respecting which opinions may differ widely,—and as a justice may, consequently, consider a statement immaterial, which the prosecutor may deem of serious importance,there seems nothing unreasonable in the proposition, that the latter should be at liberty to supply by parol testimony any omission in the examination returned. The written examination taken pursuant to the statute, is no doubt the best evidence so far as it goes; and therefore, as to the matters which it contains, it is the only legitimate medium of proof (x); but to hold that it is negatively, as well as affirmatively, conclusive, and that it contains the whole truth, as well as nothing but the truth, is to strain beyond all just limits the rule excluding parol evidence to contradict or vary written instruments (y); and such a doctrine, in fact, renders the rights of the public, and the administration of justice, liable to be controlled and defeated by the very fallible discretion of a country magistrate. The legislature, in directing the examination of prisoners to be taken by the justice, had no intention whatsoever, as the judges themselves have declared, to alter the nature of evidence, or to prevent that testimony from being received against the prisoner, which before the passing of the acts was admissible at common law (z).

§ 647. In conformity with these views, Lord Chief Justice Best has expressed his opinion" that, upon clear and satisfactory evidence, it will be admissible to prove something said by a prisoner, beyond what was taken down by a magistrate (a);" and the

(v) See Joy on Confess. 89-92; 2 Russ. C. & M. 876-878. (w) Ante, § 643.

(x) R. v. Reason, 16 How. St. Tr. 35, per Eyre, J. (y) As to which, see post, Chapter xviii.

() R. v. Lambe, 2 Lea. C. C. 558, per Grose, J., pronouncing the opinion of the judges. His Lordship's observations are directed to the acts of Philip & Mary, but they equally apply to those passed in the reign of George the Fourth. (a) Rowland v. Ashby, Ry. & M. 232.

EXAMINATION RETURNED-HOW FAR CONCLUSIVE.

605

case of Harris, Evans, and Butler, decided by all the judges, is a leading authority to the same effect (b). The case is indifferently reported, but its substance is as follows:-The three prisoners had all been charged at one time before a magistrate with stealing three sheep, respectively belonging to Bennett, Pennell, and Price. On their trial for stealing Bennett's sheep, the magistrate stated that the examinations, which were signed by himself and the prisoners, were written by him; that they contained all that was taken down; that he took down everything said by each of the prisoners that he heard; and that the informations were taken as to the three sheep, before Evans and Harris were examined; and he added, that the papers produced contained everything, as he believed, which transpired before him; that he intended to take down all that was said to him, and he believed he did; and that the room was very full. These papers were the depositions of Bennett, Pennell, and Price, as to the stealing of their respective sheep, and the examinations of the prisoners. Butler had confessed each offence. The following are in substance the statements of Harris and Evans as returned. "Harris says that he was concerned in stealing Pennell's sheep." did not kill the sheep, but that he helped to carry it away." Two witnesses were then called, who proved that Harris and Evans had also confessed to the magistrate, that they had been concerned in taking Bennett's sheep; and the prisoners being found guilty on this evidence, the judges unanimously held that the conviction was right, as the parol evidence, being precise and distinct, was properly received. It has been argued, that the word "distinct" here used, means "distinct from the examination produced;" and "distinct from the offence therein mentioned (c);" but this seems to be a forced interpretation, and is scarcely consistent with the language of the report. It is also stated that Mr. Justice Littledale, on one occasion, rejected evidence of additional statements beyond what were included in the prisoner's written examination (d); but as the circumstances of that case are not reported, it is idle to speculate on the grounds of the decision.

(b) R. v. Harris, 1 Moo. C. C. 338,

(c) 2 Ph. Ev. 84, 85, note.

"Evans says that he

(d) R. v. Mulvey, cited 2 Ph. Ev. 83.

606

WRITTEN EXAMINATION-PAROL EVIDENCE.

§ 648. If parol evidence of such additional statements be admissible on the part of the prosecution, as we submit it is, the prisoner, à fortiori, would seem entitled to pray it in aid of his defence; and this view of the law is sanctioned, not only by the case of Venafra v. Johnson (e), but also by the authority of Mr. Starkie and Mr. Phillipps; the latter of whom, while he denies the right of the Crown, admits the right of the accused, to produce such evidence (f). Whatever may be the correct rule upon this particular point, it appears to be clear, that a written examination will not exclude parol evidence, either of an extra-judicial confession previously or subsequently made (g); or of a statement made before the justice on a former investigation, and not incorporated in the examination returned (h); or of anything incidentally said by the prisoner while the witnesses were deposing against him, even though it were addressed to the magistrate himself, provided it were not taken down by him or his clerk, and did not form part of the strict judicial inquiry (i). So, if it can be proved that the prisoner's examination was not reduced to writing, parol evidence of what he said before the magistrates will be received (j); though the presumption that all things were done as the law requires, renders it necessary for the Crown to give clear evidence on this point (k); and on more than one occasion, the Judges seem to have thought it necessary that the magistrate or his clerk should be called to prove the negative fact (1). Again, if the written examination be shown to have been lost (m), or if it be wholly

(e) 1 M. & Rob. 316, per Gaselee, J., after consulting the judges of the Com. Pl. (f) 2 Ph. Ev. 82-86; 3 St. Ev. 787.

(g) R. v. Carty, Ridgway's R. 73, cited by Joy on Confess. 97, and McNally on Ev. 45; R. v. Reason, 16 How. St. Tr. 35, per Eyre, J.

(h) R. v. Wilkinson, 8 C. & P. 662, per Littledale, J., and Parke, B.

(i) R. v. Spilsbury, 7 C. & P. 187, per Coleridge, J.; R. v. Johnson, per Parke, B.; R. v. Moore, per id.; R. v. Hooper, per Erskine, J.; all cited in 2 Russ. C. & M. 879. But see R. v. Weller, 2 C. & Kir. 223, per Platt, B. Sed qu. as to this case.

(j) R. v. Hall, cited by Grose, J., in R. v. Lambe, 2 Lea. C. C. 559; R. v. Huet, 2 Lea. C. C. 821.

(k) R. v. Fearshire, 1 Lea. C. C. 202; R. v. Jacobs, id. 309; R. v. Hinxman, per Ashurst, J., and R. v. Fisher, per Heath, J., cited id. 310, 311, note.

(7) R. v. Packer, per Parke, J., and R. v. Phillips, per Bosanquet, J., both cited 2 Russ. C. & M. 876, note (p); Phillips v. Wimburn, 4 C. & P. 273, per Tindal, C. J. (m) R. v. Reason, 16 How. St. Tr. 35, per Eyre, J.

EXAMINATION TAKEN UPON OATH.

607

inadmissible by reason of irregularity, parol evidence will be received, to prove what the prisoner voluntarily disclosed (n); and in this last event of the examination being rejected for informality, it may still be used as a cotemporaneous writing, to refresh the memory of the witness who wrote it (0).

§ 649. There is, however, one species of irregularity, which, in excluding the examination as evidence per se, prevents its being used to refresh the writer's memory, and shuts out all parol testimony of what was said on the same occasion. We allude to the case where the examination purports to have been taken upon oath (p). This rule, which is supported by too many authorities to admit of dispute, rests upon two principles of law, both of which are of very questionable policy, as applied to the particular case under discussion. The first is a principle which has been several times mentioned above, namely, that the confession of a prisoner must be voluntary; and it is contended, that a statement made under oath is not so. This is certainly true in one sense, though not in that in which it is used by the advocates for exclusion. A confession not voluntary is excluded. Why? because it may be untrue. A confession made upon oath cannot be rejected on this ground; since it is absurd to contend, that an oath, which in all other cases is rightly considered as the most effectual test of truth, should, if taken by a prisoner, be regarded as an inducement to falsehood. But then it is urged, nemo tenetur prodere seipsum; a prisoner should not be compelled to criminate himself. Admitted; but what then? A prisoner, though sworn, is no more bound to criminate himself, than if he were simply interrogated without any oath being administered to him. He has still full liberty to

(n) R. v. Reed, M. & M. 403, per Tindal, C. J.

(0) R. v. Layer, 16 How. St. Tr. 214, 215, per Pratt, C. J.; R. v. Watkins, per Bosanquet, J., cited n. (b), 4 C. & P. 550; R. v. Tarrant, 6 C. & P. 182, per Patteson, J.; R. v. Pressly, id. 183, per id.; R. v. Dewhurst, and R. v. Hirst, per Bayley, J.,1 Lew. C. C. 47; R. v. Jones, Carr. Suppl. 13, per Bayley and Gaselee Js., and Vaughan, B., 1 Lew. C. C. 47, n. ; 4 C. & P. 550, n., S. C.; R. v. Bell, 5 C. & P. 162, per Gaselee J., and Lord Tenterden.

(p) R. v. Smith, 1 Stark. R. 242, per Le Blanc, J. ; R. v. Davis, 6 C. & P. 177, per Gurney, B.; R. v. Bentley, id. 148, per id.; R. v. Rivers, 7 C. & P. 177, per Park, J.; R. v. Owen, 9 C. & P. 238, per Gurney, B.; R. v. Pikesley, id. 124, per Parke, B., and Bosanquet, J.; R. v. Wheeley, 8 C. & P. 250, per Alderson, B.

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