understand; I cannot make known to her that she is to be tried by twelve persons."

Parke, J. (to the prisoner's counsel), “I shall impannel a jury to try whether she is sane or not, and shall then reserve it for the Judges to say, whether she should be detained during the King's pleasure, under 39 & 40 Geo. 3, c. 94, or whether she should be instructed so as to be made capable of understanding what it is necessary she should know, in order to her being put upon her trial."

A jury was then impanneled.

The first witness deposed as follows:

"She was born deaf and dumb. I am of opinion she does not understand the nature of this proceeding. She would understand any small thing; she would understand natural objects. I could not make her understand the nature of challenges to jurors. It is not possible, in her present state, to make her understand a matter of that sort; it would take a great deal of time and trouble to make her understand the nature of this proceeding, but I think she might be brought to it."

Second witness.-"I think she has not at this time sufficient reason to understand what the court is about; I think she could be instructed by the means used by those who instruct deaf and dumb children; I think she has sufficient reason to know when she is doing right and wrong."

Parke, J., to the jury.-" Gentlemen, you are impanneled to try whether the prisoner is sane, not

whether she is at this moment labouring under lunacy; but, whether she has at this time sufficient reason to understand the nature of this proceeding, so as to be able to conduct her defence with discretion."

The jury returned a verdict, that she was insane.

APPLEBY Sp. Assizes, 1823.

It is sufficient

to prove the

DEPOSITIONS.

Sarah Hobson's Case.

The prisoner was indicted for murder.

It ap

magistrate's peared that her deposition had been taken down by

signature to a

deposition, the magistrate's clerk, who was not present to authenticate it when produced at the trial.

without producing the clerk who wrote it.

Courtenay objected, that it could not be received in evidence, although the magistrate before whom it was taken had signed it, and was present to prove his signature.

Holroyd, J., held it to be sufficient, and it was

read.

Note. In the above case, there had been several depositions taken; and it was proposed to refer to some to explain others, upon which Holroyd, J., made the following observations:

"It sometimes happens, that, on examination before a magistrate, there are several depositions taken; but the clerk who takes them, unmindful that they are to be read separately, is less precise with those that follow than with the first; in other words, establishes a sort of relationship, which ren

ders them to a certain degree dependent upon one another; in such cases, the several depositions may be referred to, in order to explain each other, but not to give a force to them as evidence which they are not otherwise entitled to. References in such

cases are merely to supply omissions which are obvious and indispensable, and which would supply themselves by necessary implication if the instruments to which they refer were first recited."

Pearson's Case.

Prisoner was charged with horse-stealing.

YORK Sum- Assizes, 1825.

If there be several deposi

tions and one only be pro

It appeared, that two depositions had been taken before the magistrate; but one only was produced duced, the one

in evidence against the prisoner.

Hallock, B., held that the one could not be received without the other, though one only was reduced to writing: because the one not produced might be in favour of the prisoner; and it would be unreasonable to allow a prosecutor to choose which he would produce*.

Harrison's Case.

cannot be received.

LANCASTER Sp. Assizes, 1829.

Cottingham, prisoner's counsel, while the trial Prisoner's

was going on, asked to be allowed to see the deposi

tions taken before the magistrate.

See post, p. 71-Doncaster Betting Room case.

counsel not

entitled to see

the depositions.

YORK

Sum. Assizes,

1829.

Depositions touching an

not receivable in evidence.

Per Bayley, J.-"It is against the rule."

Application refused.

Fletcher's and Squire's Case.

Littledale, J., refused to allow depositions taken

other felony, on an inquiry, touching another felony, to be read in evidence, to shew that certain persons charged in the indictment under trial were in company with another person charged in the same indictment on a particular night; the object being to identify them. as the persons concerned with that other in a robbery committed on the night in question.

YORK Sum. Assies, 1829.

A declaration made on oath before a magistrate may be given in evidence

either as a dy

ing declara

tion, or a de

position on oath under the statute.

Wilson's Case.

Prisoner was indicted for murder.

The counsel for the prosecution tendered in evidence, as a dying declaration, the following:"I never thought I should recover; I have no great hopes of it now."

Littledale, J., thought that it expressed some hope, though not a very great one. But, before he decided the point, the counsel for the prosecution waived it as a dying declaration, and claimed to put it in as a deposition on oath taken before the magistrate in the prisoner's presence.

The prisoner's counsel objected; and Littledale, J., feeling some doubts about it, proceeded to the other court to consult Bayley, J. The two learned

Judges agreed that it was admissible, and it was read accordingly.

In Radbourne's case, 1 Leach, C. C. 458, the same was held on point reserved; and in Smith's case, R. & R. C.C.339, for murder, the deposition was held receivable, though taken on another charge, and though the whole was not reduced into writing in his presence; but it was proved that he was afterwards re-sworn in the presence of the prisoner.

But in Dingler's case, 2 Leach, C. C. 561, where the deposition was taken at an infirmary, and not in the prisoner's presence, it was held, that it could not be read in evidence, for the reason given in Woodcock's case, 1 Leach, C. C. 500, viz. that the examination was extrajudicial, not being taken as the stats. 1 & 2 P. & M. c. 13, and 2 & 3 P. & M. c. 10, direct. Besides which, not being in the presence of the prisoner, he could not have the benefit of a cross-examination; that the authority of the magistrate in such cases grew out of the statute, and was commensurate with the terms of it.

N.B.-The 1 & 2 P. & M. c. 13, and 2 & 3 P. & M. c. 10, are repealed by 7 Geo. 4, c. 64, s. 32; and by s. 2, of the same statute, it is provided as follows:-"That the two justices of the peace, before they shall admit to bail, and the justice or justices, before he or they shall commit to prison, any person arrested for felony, or on suspicion of felony, shall take the examination of such person, and the information on oath of those who shall know the facts and circumstances of the case, and shall put the same, or so much thereof as shall be material, into writing; and such justice or justices respectively shall subscribe all such examinations, informations, &c., and deliver, or cause &c., to the proper officer of the court in which the trial is to be, before, or at the opening of the court."

The