the said county, and upon his oath before me the said justice deposeth and saith, that he hath lately lost a terrier dog of a black and tan colour, and that he hath cause to suspect and doth suspect that C. D. of aforesaid hath stolen the same, and that the skin of the said dog is now concealed in the dwelling house of the said C. D. situate in the town and parish of aforesaid. Exhibited on oath before. me, this Search Warrant thereon. day of, 1817. to wit. [Recite the complaint as in the information, then proceed thus:]-These are therefore to command you to make diligent search for the said dog's skin, in the said dwelling house of the said C. D and if you shall find it therein, then that you bring the same before me at this place, and also cause the said C. D. to come before me and W. S. Esq. one other of His Majesty's justices of the peace in and for the said county, at this place to-morrow morning at eleven o'clock, to answer the said complaint and to make defence thereto, and to be dealt with according to law. Given &c. EVIDENCE. In general a person is a competent witness, unless interested in the event of the suit, either directly or indirectly. 7 T. R. 62. The ex-parte examination of a pauper, in writing, as to his settlement, is not admissible evidence of such settlement. 2 East's Rep. 54, but the examination of a soldier as to his settlement, is made evidence by the Mutiny Act; it must however be authenticated before read in evidence. The confession of a defendant, taken on an examination before justices, is allowed to be evidence against the party confessing, but not against third persons. 2 Haw. c. 46, s. 3. The distinction between a credible and a competent witness is, that the former is not disabled from being produced and sworn, but the credit of his testimony depends upon his moral character: the latter may be disabled by interest and other causes from giving evidence, and on that account is incompetent. 2 H. H. 276, 277. A witness cannot be asked any question, the answering of which would accuse himself of a crime, but he may be asked whether he has not been in the pillory for perjury. 4 T. R. 440.-An infant of fourteen years of age, and even under, if of competent discretion, may be sworn as an evidence. 2 H. H. 278. The deposition of a witness taken extra-judicially before a magistrate, is not evidence.Leach, 397. A person convicted of perjury is thereby rendered incompetent as a witness. 2 Haw. 433. but persons convicted of any felony within clergy, or of grand or petit larceny, are competent witnesses: other incompetent witnesses are persons guilty of treason, felony, piracy, præmunire, or forgery. Husband and wife are not admitted as evidence against each other, except in treason-and also in polygamy, for the second marriage being void, the second wife may be admitted a witness; but the wife may be permitted to swear the peace against her husband, and vice versa. Buller, N. P. 286. No quaker shall be allowed to give evidence in any criminal cause, except on oath. 7 and 8 W. c. 34. An accomplice to a crime may be admitted as a witness, if he hath not been indicted for such crime; and accomplices are good witnesses for the King until they are convicted. 2 Haw. 46, s 17, 18. at Warrant for a Witness to give Evidence. To the Constable of to wit. Whereas oath hath been made before me S. P. Esq. one of His Majesty's justices &c. by C. D. of &c. that he the said C. D. was lately robbed on the King's highway --, and that he hath good cause to believe that E. F. of &c. is a material witness to prove by whom the said robbery was committed. These are therefore to require you to cause the said E. F. forthwith to come before me, to give such information and evidence as he knoweth concerning the said offence, and that such further proceedings may be had therein as to the law doth appertain. Given under my hand and seal &c. S. P. in Condition of a Recognizance to appear and give Evidence. The condition of this recognizance is such, that if the above bounden A. B. shall personally appear at the next general quarter sessions of the peace, to be holden at the county of and then and there give such evidence as he knoweth, upon a bill of indictment to be exhibited by C. D. of &c. to the grand jury, against E. F. of &c. yeoman, for feloniously stealing, the property of C. D. and in case the said bill be found a true bill, then if the said A. B. shall then and there give evidence to the jurors, that shall pass on the trial of the said E. F. upon the said bill of indictment, and not depart thence without leave of the court, then this recognizance to be void, otherwise of full force and virtue. EXAMINATION. By 1 and 2 P. and M. c. 13, s. 4, two or more justices, or one of them where prisoner is charged with manslaughter or felony, shall take his examination in writing, and the information of him that bring him of the fact, which they shall certify at the next gaol delivery. A constable may be ordered by a justice, by word of mouth, to detain a prisoner for further examination, and it is said three days is a reasonable detention. Cro. Eliz. 829. The examination of a prisoner should not be on oath, but he should sign it if it contains a confession. Dalt, c. 164. and the examination being voluntary, and proved to be truly taken by the justice or his clerk, may be given in evidence against the prisoner. 1 H. H. 586. though not against others. 2 Haw. c. 46, s. 3. but witnesses must be examined on oath. Dalt. c. 164. Persons refusing to be bound to prosecute and give evidence, may be committed. Dalt. c. 164. 1 H. H. 586. Examination or Confession in Felony. [Note. If the offence be bailable it must be taken before two Justices.] to wit. The examination of A. B. of -, taken be fore me S. P. Esq. one of His Majesty's justices of the peace for the said county, on the day of in the year of our Lord 1817, the said A. B. being charged before me by C. D. of &c. yeoman, with the felonious stealing out of the dwelling-house of the said C. D. at, on the day of -, the following goods, to wit, [here describe the articles], of the value of, he the said A. B. upon his examination now taken before me, confesseth that &e. Examination as to Stolen Goods. to wit. The information and complaint of A. B. of &c. in the county of [labourer,] made on oath before me one of His Majesty's justices of the peace for the said county, the -day day of ——, who saith that the following goods, to wit, [describe the goods stolen], have by some person or persons unknown, within - days last past, been feloniously taken, stolen, and carried away, out of his dwelling-house [or outhouse, as the case may be], situate at aforesaid, in the county aforesaid; and that he hath probable cause to suspect, and doth suspect, that the said goods, or part thereof, are concealed in the house [stable &c. as the fact is], of C. D. at in the said county. to wit. Whereas information hath been made before me S. P. Esq. one of His Majesty's justices of the peace in and for the said county, that [state the complaint] and that C.D. of in the said county, is a material and necessary witness to be examined concerning the same. These are, therefore, to require you to summon the said C. D. to appear before me, at in the said county, on the day of- at the hour of in the noon of the same day, to testify the truth according to the best of his knowledge concerning the premises. Given under my hand and seal this day of, 1817. S. P. |
