will not entitle the prisoner to have any of the depositions read, although they were all taken before the prisoner made his statement. (m)

Section 18 of the 11 & 12 Vict. c. 42, is only intended to apply to the concluding examination of a prisoner before the committing magistrate after all the witnesses have been examined, and does not apply to a voluntary statement made by a prisoner in the course of the examination, and before the conclusion of the case for the prosecution. Such a statement is admissible, and it is immaterial whether it is made before, during, or after a remand. (n) Therefore where a policeman took a prisoner before a magistrate, and applied to have her remanded, and produced a cash-box and iron chisel, stating his belief that it was with that instrument that the prisoner had opened the box; upon which the prisoner spontaneously, and without any question having been put to her, said that she had not opened the box by means of the chisel, but by a hammer; and no examination was taken before that magistrate, who merely granted a remand; it was held that the statement of the prisoner was admissible against her, although she had not been cautioned before she made it, and might be proved by the policeman. (o) Such a statement may be proved by any one who heard it. (p)

Where one of two prisoners was committed before the other was apprehended, and the depositions against the one prisoner were read over before the magistrate to the other prisoner, and after they were read that prisoner went across the room to a witness, who was called, and said something to him so loud that it might have been heard by the magistrate if he had been attending, and the magistrate proved the examination of the prisoners before himself, and the statement to the witness was not contained in it; Parke, J., held that what the prisoner had said to the witness might be given in evidence. (9) So an incidental observation made by a prisoner in the course of his examination before a magistrate, but which does. not form a part of the judicial inquiry so as to make it the duty of the magistrate to take it down in writing, and which was not so taken down, may be given in evidence against him at the trial.' (r) So where a woman was before the magistrates on a charge of burglary, and in the course of the examination of a witness a glove was produced, which had been found on the man with part of the stolen. property in it, on which the man said, 'She gave me the glove, but she knew nothing of the robbery' the depositions having been put in, and the clerk to the magistrates having proved them, and there being no such statement in the depositions or examination of the

(m) R. v. Pearson, 7 C. & P. 671. Law, Recorder, after consulting Patteson and Williams, JJ.

(n) Per Jervis, C. J., R. v. Stripp, infra. R. v. Bell, 5 C. & P. 162. Lambe's case, 2 Leach, 552.

(0) R. v. Stripp, 25 L. J. M. C. 109. Dears. C. C. 648. R. v. Watson, 3 C. & K. 111. But see Garrow, B., in R. v. Fagg, 4 C. & P. 566. R. v. Wilkinson, 8 C. & P.

prisoner, Erskine, J., held that what the man said might be proved by parol evidence. (s)

6

On the examination of a prisoner on a charge of murder, one of the witnesses stated that she had bought a pot of the prisoner, upon which one of the magistrates asked what sort of a pot it was, and the prisoner, although the question was not particularly addressed to him, made an answer. It was submitted that no evidence could be given of what passed before the magistrate except the depositions. Coleridge, J., What the magistrate himself said would not be taken down. That may certainly be asked.' It was then submitted that the statement made by the prisoner and signed by the magistrate must be put in before it could be asked what the prisoner said. Coleridge, J., There seems to be no necessity for putting in the written examination. It is not what the prisoner says when called upon for his defence that is asked, but an observation made in the course of the case, and as that would not be put down as part of his statement, I am clearly of opinion that it is receivable.' The clerk to the magistrate then proved that he took down the examination of the witnesses, and that he took down what the prisoners said when they were asked what they had to say for themselves, but that he did not take down anything which either of the prisoners said before the witnesses had been all examined. Coleridge, J., At the close of the evidence for the prosecution the prisoner is asked if he wishes to say anything, and if he does, it is taken down, and the evidence of that statement is the written examination; but if a prisoner says something while the witnesses are under examination that does not stand on the same ground, I shall receive the evidence.' (t)

Statements made by a prisoner while cross-examining a witness before the magistrates and reduced to writing as part of the depositions, must be proved by the depositions and not by the witness so cross-examined. (u)

The prisoner was indicted for receiving goods knowing them to have been stolen. There was a second indictment against him for breaking into and stealing from a church. When examined before the magistrate on this second charge, he made a confession as to the first charge. This was taken down in the usual manner, read over to the prisoner, and signed by the magistrate; but the prisoner refused to sign it. It was objected that the 7 Geo. 4, c. 64, only made these confessions evidence, on the authority of the magistrate's signature, when the confession was made on an examination having reference to the charge in support of which the confession was sought to be given in evidence. Erle, J., held that it mattered not for what purpose the confession was made; if it were made before a magistrate, taken down in the regular manner, and received the magistrate's signature, it thereby became valid evidence against the prisoner upon the trial of any other charge than that upon the examination in reference to which such confession had been made. (v)

(s) R. v. Hooper, Gloucester Sum Ass. 1842. The clerk to the magistrates could not remember the observation, and it was proved by two policemen. MSS. C. S G.

(t) R. v. Spilsbury, 7 C. & P. 187. Two cases bearing the other way are reported,

but they cannot be supported. See R. v. Weller, 2 C. & K. 223. R. v. Carpenter, 2 Cox, C. C. 228.

(u) R. v. Taylor, 13 Cox, C. C. 77.

(v) R. v. Pomeroy, 1 Cox, C. C. 231. The constable proved the facts in this case.

Where the prisoner calls witnesses whose evidence is inconsistent with his statement before the magistrate, the statement may be put in evidence in reply. On an indictment for robbery the prisoner's coat was proved to have been bloody, and a witness for the prisoner stated that on the day before the robbery he had observed that the prisoner's coat was bloody, and the prisoner gave an account of how it became so; and it was held that the prisoner's statement before the magistrate, in which he accounted for the blood on his coat in a different manner, was admissible in reply to the evidence given by the prisoner. (w)

The prisoner's statement is evidence against him, but not for him; and therefore it cannot be put in evidence on his behalf. (x)

SEC. III.

Depositions. (y)

As examinations and depositions before magistrates originate from the same Acts of Parliament, and are in some respects guided by the same decisions, it may be proper to consider the latter immediately after the former.

(a) Statutes in Force as to Depositions upon which Prisoner committed for Trial.

By 11 & 12 Vict. c. 42, (2) s. 17, 'in all cases where any person shall appear or be brought before any justice or justices of the peace charged with an indictable offence, whether committed in England or Wales, or upon the high seas, or on land beyond the sea, or whether such person appear voluntarily upon summons or have been apprehended, with or without a warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit such accused person to prison for trial, or before he or they shall admit him to bail, shall, in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement (M.) on oath or affirmation of those who shall know the facts and circumstances of the case, and shall put the same into 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

(w) R. v. White, 2 Cox, C. C. 192. Pollock, C. B., after consulting Coleridge, J. (x) R. v. Haines, 1 F. & F. 86, Crowder, J.

(y) As to a prisoner being entitled to inspect depositions, see ante, p. 464.

(z) By the 1 & 2 P. & M. c. 13, and 2 & 3 P. & M. c. 10, justices of the peace were enabled and directed to take the depositions of witnesses in cases of felony; by the 7 Geo. 4, c. 64, these statutes were

repealed and re-enacted with an extension to misdemeanors, and we have seen that the 7 Geo. 4, c. 64, is repealed so far as relates to the taking of the examinations and informations against persons charged with felonies and misdemeanors, by the 11 & 12 Vict. c. 42, s. 34. The 11 & 12 Vict. c. 42, s. 17, has extended the admissibility of depositions, taken before a justice, so as to include those taken on a charge of high treason.

taking the same; (a) and the justice or justices before whom any such witness shall appear to be examined as aforesaid shall, before such witness is examined, administer to such witness the usual oath or affirmation 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, (b) 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, (c) and if also it be proved that such deposition was taken in the presence of the person so accused, and that he or his counsel or attorney 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, (d) it shall be lawful to read such deposition as evidence in such prosecution, (e) 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.' (ƒ)

'(M.) 'To Wit.

Depositions of Witnesses.

The Examination of C.D. of

E.F. Of

Day of

at

[Farmer] and [Labourer], taken on [Oath] this in the Year of our Lord in the [County] aforesaid, before the undersigned, [One] of Her Majesty's Justices of the Peace for the said [County], in the Presence and Hearing of A.B., who is charged this Day before [me], for that he the said A.B. on

at

&c., describing the Offence as in a Warrant of Commitment].

"THIS Deponent C.D. on his [Oath] saith as follows [&c., stating the Deposition of the Witness as nearly as possible in the words he uses. When his Deposition is complete let him sign it]. And this Deponent E.F., upon his Oath, saith as follows [&c.] The above Depositions of C.D. and E.F. were taken and [sworn] before me at on the Day and Year

first above mentioned.

(a) See post, p. 558.

(b) Duke of Beaufort v. Crawshay, 35 L. J. C. P. 342; as to proof by affidavit, see per Willes, J., S. C.

(c) Formerly if there were a permanent inability to attend, as if the witness were so ill that there was no probability that he would ever be able to attend, his deposition was admissible. R. v. Edmunds, 6 C. & P. 164. R. v. Hogg, 6 C. & P. 176. R. v. Wilshaw, C. & M. 145, Coltman, J.

(d) Where a charge of wounding with intent to murder was made before a magistrate at Bow Street, but in consequence of the illness of a witness, the prisoner was taken to Twickenham, and the deposition of the witness taken in the presence of the prisoner by two county magistrates, and signed by them, and after a further investigation at Bow Street the prisoner was committed; it was held that the deposition was admissible; for the 11 & 12 Vict. c. 42, ss. 17, 18, does not confine the admissibility

(e) Where a witness is too ill to travel, his deposition may be read by the grand jury upon proof that it was duly taken in the presence of the prisoner, who had an opportunity of cross-examining the witness, and that the witness is too ill at the time to attend. R. v. Clements, 2 Den. C. C. 251. R. v. Wilson, 12 Cox, C. C. 622. In this case evidence was given before the judge that the witness was too ill to attend to be examined, &c., and the judge directed the deposition to be sent in to the grand jury. See R. v. Bullard, 12 Cox, C. C. 353, where Byles, J., is reported to have said that the grand jury are not bound by any rules of evidence. See R. v. Gerrans, 13 Cox, C. C. 158.

(f) The Irish Act, 12 & 13 Vict. c. 69,

By sec. 28, 'the several forms in the schedule to this Act contained, or forms to the same or the like effect, shall be deemed good, valid, and sufficient in law.' (g)

By 30 & 31 Vict. c. 35, s. 3, And whereas complaint is frequently made by persons charged with indictable offences, upon their trial, that they are unable by reason of poverty to call witnesses on their behalf, and that injustice is thereby occasioned to them, and it is expedient to remove, as far as practicable, all just grounds for such complaint: Therefore, in all cases where any person shall appear or be brought before any justice or justices of the peace, charged with any indictable offence, whether committed within this realm or upon the high seas, or upon land beyond the sea, and whether such person appear voluntarily upon summons, or has been apprehended with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit such accused person for trial, or admit him to bail, shall immediately after obeying the directions of the 11 & 12 Vict. c. 42, s. 18 (ante), demand and require of the accused. person whether he desires to call any witness; and if the accused person shall, in answer to such demand, call or desire to call any witness or witnesses, such justice or justices shall, in the presence of such accused person, take the statement on oath or affirmation, both examination and cross-examination of those who shall be so called as witnesses by such accused person, and who shall know anything relating to the facts and circumstances of the case, or anything tending to prove the innocence of such accused person, and shall put the same into writing, and such depositions of such witnesses 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, and transmitted in due course of law with the depositions, and such witnesses, not being witnesses merely to the character of the accused, as shall in the opinion of the justice or justices give evidence in any way material to the case, or tending to prove the innocence of the accused person, shall be bound by recognisance to appear and give evidence at the said trial, and afterwards upon the trial of such accused person, all the laws now in force relating to the depositions of witnesses for the prosecution shall extend and be applicable to the depositions of witnesses hereby directed to be taken.'

By sec. 4, all the provisions of the said Act 11 & 12 Vict. c. 42, relating to the summoning and enforcing the attendance and committal of witnesses, and binding them by recognisance and committal in default, and for giving the accused person copies of the examinations, and giving jurisdiction to certain persons to act alone, shall be read and shall have operation as part of this Act.

See 30 & 31 Vict. c. 35, ss. 6 & 7, noticed, post, p. 572, which give power to magistrates to examine witnesses dangerously ill.

s. 17, was exactly similar to this section excepting that it omitted the words 'or so ill as not to be able to travel.' The 12 & 13 Vict. c. 69, was repealed by the 14 & 15 Vict. c. 93: see sec. 14 of that Act, which

is similar to the repealed clause, and omits the same words as it did.

(g) See sec. 20, ante, p. 540, as to the mode of returning the depositions.