If the accused is unrepresented, it is usual to merely outline the case, but that depends entirely upon the circumstances. For instance, in a charge of larceny, it would be scarcely necessary to say anything, but in one of perjury or offences against the Bankruptcy Acts it would be necessary to open fully. Whether accused is represented or not, it is always the proper—and wisest -course for the counsel to confine himself to facts, and, unless the case is an exceptional one, to refrain from comment.

Evidence (which must be sworn, except in cases provided for by the Criminal Law Amendment Act, 1885, and the Prevention of Cruelty to Children Act, 1904) is then called, and examination and cross-examination proceeds. The evidence should be as to facts necessary to establish the charge laid in the indictment. And it should be borne in mind that every fact essential to the case for the prosecution must be proved, the accused not being able to make any admission (other than that of guilty). See as to oath to interpreter and generally, Appendix F., pp. 390-396.

In a criminal case, there is seldom any difficulty in obtaining the presence of a witness. Generally, where the laying of the indictment has been preceded by a magisterial inquiry, all the witnesses called are bound over to appear at the subsequent trial.

If anyone, whose testimony is required, is not so bound over, a subpoena can be obtained from the Crown Office, or the clerk of the peace, or the clerk of assize of the Court where the trial is to take place, to compel his attendance; or if only the production of a document is desired, a subpana duces tecum can be obtained calling upon the person to attend and produce at the trial. If the proposed witness is in prison on civil process or in the custody of officials, a writ of habeas corpus ad testificandum must be applied for at Judge's Chambers. If he is detained in custody in respect of a criminal matter, an application must be made to a judge on affidavit (Cr. Off. Rules (1886), 22, 230, 247, and 16 & 17 Vict. c. 30, s. 9) or to a Secretary of State (61 & 62 Vict. c. 41, s. 11).

Further, if a person, it is proposed to call as a witness, is in Court, and is called upon to give evidence, he must do so, although he has had no subpoena.

If a witness refuses or wilfully neglects to attend in obedience to a subpoena, an application, supported by an affidavit stating the fact, that the subpoena was personally served and that the witness in question is a material witness, should be made to the

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King's Bench Division of the High Court to attach him (R. v. Ring, 8 T. R. 585; 5 R. R. 478), a Bench warrant not being available in such a case (R. v. Crawford, 6 Cox, 481 (n.)).

RULE 191.-Depositions taken before, and signed by, a magistrate (or coroner, per Darling, J., in R. v. Butcher, 64 J. P. 80) may be put in evidence at the trial, if it is proved by medical evidence (R. v. Butcher, supra) that the deponent is dead or so ill as not to be able to travel, and that the deposition was taken in the presence of the accused, who had full opportunity of cross-examining the deponent (11 & 12 Vict. c. 42, s. 17), and if such deposition purports to be signed by the justice by or before whom the same purports to have been taken.

This also applies to depositions of witnesses examined for the defence (30 & 31 Vict. c. 35, s. 3; see also R. v. Ernestine Kratz, 64 J. P. 807). As to depositions taken abroad, see 13 Geo. 3, c. 63; 24 Geo. 3, sess. 2, c. 25; 26 Geo. 3, c. 57; 42 Geo. 3, c. 85; and the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 691, sub-s. 1. As to unsworn deposition of a child, see 4 Edw. 7, c. 15, ss. 14, 15. In one case (Vaughan v. Martin, 1 Esp. 440) a witness was allowed to refresh his memory by perusing his deposition. Here the circumstances were exceptional, and this would scarcely be allowed nowadays.

RULE 192.-By 28 & 29 Vict. c. 18, s. 3, "A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made a statement inconsistent with his present testimony; but before such lastmentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such a statement."

In practice, when a witness's evidence differs so much from his deposition as to raise a presumption that he has been tampered with by the other side, application is made to treat him as hostile. If the judge grants permission, the witness is handed his deposition, asked if his signature is that which is appended

to his deposition, and is again asked whether the statement contained therein or his present statement is true, and so on.

If the deposition is read or its substance stated, it at once becomes evidence, or in technical words "it is put in." This is often done by the prosecutor in the case of a hostile witness, but rarely by the defence, unless it has other evidence to call, since by putting in the deposition, the last word to the jury is lost.

Of course, there are other cases to which the above statute would apply, but except in the instance given, supra, I have never heard such an application made in a criminal trial.

See also Rules 2 and 3 of the judges in 7 C. & P. 676, and 6 L. J. M. C. 37. Frequently counsel, on obtaining leave to treat a witness as hostile, cross-examine him generally, but this practice is not warranted by the statute.

RULE 193.—A witness not called before the magistrates may be called at the trial.

In the ordinary practice of criminal courts there is frequently discussion as to whether a witness who was not called before the committing magistrate should be called at the trial.

There appears to be no rule of law on the point, but in practice the evidence of such a witness is invariably admitted, subject to proof that a copy of such evidence has been furnished to the defence.

There are many decisions on this point, but it is unnecessary to refer to them in detail, the above rule being well established. Further, it should be said that although there is no rule of law on the subject, counsel for the prosecution should always call the witnesses who appeared before the magistrate, or whose names appear on the back of the indictment, unless there are exceptionally cogent reasons which render such a course undesirable. I have myself refused to call a witness, bound over for the prosecution by the committing magistrate, when I had satisfied myself that the witness in question had been tampered with by the defence.

RULE 194.-A judge may call a witness and examine him, and may refuse permission to either side to cross-examine him, and may at any time during the trial, and before verdict, allow the jury to have a view of the locus in quo (R. v. Martin, L. R. 1 C. C. R. 378).

In Coulson v. Disborough (1894, 2 Q. B. 316; 9 R. 390; 70 L. T. 617; 42 W. R. 449; 58 J. P. 384), which was a civil action, after the witnesses on both sides had been examined, and counsel had addressed the jury, the jury asked that a person

who was in Court, but had not been called by either party, should be called. He was accordingly called and two questions were asked him, his answers to which were alleged to have materially damaged the plaintiff's case.

Plaintiff's counsel was refused leave to cross-examine, it being ruled that neither party has a right to cross-examine a witness called by the judge, without leave.

Plaintiff appealed, and Lord Esher, M. R., in giving judgment, said: "The judge must exercise his discretion whether he will allow the witness to be cross-examined. If what the witness has said in answer to the questions put to him by the judge is adverse to either of the parties, the judge would, no doubt, allow—and so he ought to allow-that party's counsel to cross-examine upon his answers. A general fishing cross-examination ought not to be permitted."

The decision in this case is certainly curious when tested by Lord Esher's remarks, but the fact that the answers in question were held immaterial to the issue was the basis of the judgment. The decision in this case is, of course, applicable to criminal trials.

RULE 195.-If it is thought desirable to use a written instrument which is in the possession of the other side, it is necessary to give notice to produce it at the trial (R. v. Elworthy, L. R. 1 C. C. R. 103; 37 L. J. M. C. 3; 12 L. T. 293; 16 W. R. 207; and see R. v. Francis, L. R. 2 C. C. R. 128; 43 L. J. M. C. 97; 12 Cox, 612), unless it forms the basis of the charge against an accused (R. v. Aickles, 1 Leach, 294; 2 East, P. C. 675), or where by the form of the indictment the prisoner has notice that he is charged with the possession of the necessary document, and will be required to produce it (How v. Hall, 14 East, 274; 12 R. R. 515; R. v. Moore, 6 East, 419, n., 421, n. ; R. v. Hunt, 1 St. Tr. N. S. 171; 3 B. & Ald. 566; 22 R. R. 485).

If such notice is not given, secondary evidence of its contents cannot be adduced.

The notice should be given to the opposite party, or his solicitor, and it need not be in writing, though it should be (Smith v. Young, 1 Camp. 410); and it must be given within a

time that, in the circumstances of the case, is reasonable (R. v. Ellicombe, 5 C. & P. 522; 1 M. & Rob. 260).

In R. v. Kitson (Dears. C. C. 187; 22 L. J. M. C. 118; 6 Cox, 159), the accused was charged at Cambridge Assizes with arson. Notice to produce a document was given to him in the middle of the day before the trial.

The fire happened where the accused lived, thirty miles from Cambridge. It was held that the notice was not in time, and that secondary evidence as to the document could not be given. But see R. v. Barker, 1 F. & F. 326.

As to what is secondary evidence, see Brown v. Woodman (6 C. & P. 206), where it was held, secondary evidence being admissible, that a person might give parol evidence of the contents of a letter of which he had a copy, and was not obliged to produce the copy.

RULE 196.-Evidence adduced for the purpose of showing that the accused is a person of good character is always admissible.

By "character" is meant general reputation.

"The only way of getting at it"-mental tendency and disposition-"is by giving evidence of his general character, founded on his general reputation in the neighbourhood in which he lives. The prisoner's counsel gives evidence of particular facts."-Cockburn, C. J., in Rowton's Case (L. & C. 530; 34 L. J. M. C. 57).

In civil cases, evidence of good character is inadmissible, unless it is directly in issue-aliter, in criminal cases.

The rule which restricts evidence as to character to that of general reputation is doubtless founded on the inconvenience that would ensue if particular facts were gone into.

Even now, however, the rule is far from satisfactory, as it would allow a witness who privately knows that an accused was an habitual receiver of stolen goods, and had committed forgery, to swear that he was of good character-i.e. of general good reputation.

RULE 197.-Evidence that an accused (or a prosecutrix, (3), infra) is of bad character is not admissible, except

(1.) When an accused has (by his own testimony,