EVIDENCE. Evidence, in its general sense, is the testimony of witnesses, given upon an issue joined between parties in a civil or criminal suit.-1 Inst. 283. In general, a person is a competent witness unless interested in the event of the suit, either directly or indirectly—7 T. R. 62; and by the common law, informers who participate in any penalty are not competent witnesses; but they are sometimes rendered so by act of parliament in particular cases.-1 Ph. Ev. 117. 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, § 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. If a person be convicted of treason, felony, forgery, perjury, subornation of perjury, attaint of false verdict, and other offences of the same description, which involve the charge of falsehood, and affect the administration of justice, he is incompetent to give evidence. So, if convicted of bribing a witness to absent himself and not give evidence; barratry or conspiracy to accuse another of a capital offence.-Russell on Cr. 592, 593. The incompetency must be proved by the production of the record of conviction and judgment.-Gilb. 128, 129. The admission of the witness himself that he had been convicted of grand larceny, and was then under sentence, was held insufficient.-8 East. 78. And an admission by a witness that he has been guilty of perjury, affords no objection to his competency, whatever effect it may have upon his credit. -R. v. Teal. 11 East. 389. And by stat. 9 Anne, c. 14, 15, a person convicted of winning by fraud or ill practice in certain games is rendered incompetent. The incompetency arising from infamy may be removed-1st, by endurance of punishment; 2nd, by pardon; 3rd, by reversal of the punishment. *By statute 31 G. III. c. 35, no person shall be incompetent by reason of a conviction for petit larceny. By 4 & 5 V. c. 24, § 22, offenders convicted of misdemeanors affecting their competency as witnesses, and having endured the punishment adjudged for the same, shall not afterwards be deemed incompetent witnesses (convictions for perjury or subornation of perjury excepted). A witness cannot be asked any question, the answer to which would criminate himself; but he may be asked whether he has not been in the pillory for perjury.-4 T. R. 440. An infant fourteen years of age, and even under, if of competent discretion, may be sworu to give evidence.-2 H. H. 278. The deposition of a witness taken extra judicially before a magistrate is not evidence.-Leach, 397. Husband and wife are not admitted as evidence either for or against each other, except in treason; but in polygamy (for the second marriage being void) the second wife may be admitted as a witness. A wife may also be permitted to swear the peace against her husband, and vice versa.-Buller, N. P. 286. A woman living with a man as his wife, though not actually so, cannot be examined as a witness on his behalf.-Campbell v. Twemlow, 1 Price, 81; 1 Phil. Ev. 82. Quakers, Menonists and Tunkers, &c., are admissible as witnesses upon their simple affirmation.-10 G. IV. c. 1. EXAMINATION. By statute 4 & 5 V. c. 24, § 2, justices of the peace, before they shall admit any person to bail in cases of felony, shall take the examination of such person in writing. See further on this subject, ante title "Bail." -- Execution is the last stage of criminal proceedings. This must, in all cases, be performed by the sheriff, or his deputy, whose warrant for so doing was anciently by precept, under the hand and seal of the judge. For a long time past, however, it has been the established practice for the judge to command execution to be done without any writ. The usage is for the judge to sign the calendar or list of all the prisoners, with their separate judgments in the margin, which is left with the sheriff. Thus, for a capital felony, it is written opposite to the prisoner's name "Let him be hanged by the neck;"formerly, in the days of latin and abbreviation-sus. per. coll. for suspendatur per collum. This is the only warrant which the sheriff has for so material an act as taking away the life of another.-4 Bl. Com. 402. The place, however, ought to be somewhere in the county where the criminal was tried and convicted-unless the record of attainder be removed into the King's Bench: which court may award execution in the county where it sits.-3 Inst. 31, 211, 217; 4 Bl. Com. 404. If upon judgment to be hanged by the neck till dead, the criminal be not thoroughly killed, but revives, The the Sheriff must hang him again, for the former hanging was no execution of the sentence; and if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue.-2 Hale, 412; 2 Haw. 463; 4 Bl. Com. 406. body of a traitor or felon is, in strictness of law, forfeited to the king, by the execution, and he may dispose of it as he pleases; but it is usual in all cases, except murder, to give up the body for interment. Execution may be avoided by a reprieve, or a pardon; the former is only temporary, but the latter is permanent. Every judge who hath power to order execution, hath also power to grant a reprieve.-2 Hale, 412. When a woman quick with child is condemned, although this is no cause to stay the judgment, yet it is good cause to respite the execution until she be delivered. Upon this plea being made, the judge must direct a jury of twelve matrons, or discreet women, to inquire the fact; and if they bring in their verdict quick with child-for barely with child, unless it be alive in the womb, is not sufficient-execution shall be stayed generally till the next assizes, until she is either delivered, or proves, by the course of nature, not to have been with child at all.-4 Bl. Com. 395. If a prisoner become non compos mentis between the judgment and award of execution, the judge ought in this case also to reprieve him, for furiosus solo furiore punitur; and the law knows not but he might have offered some reason, if in in his senses, to have stayed the execution.-Ibid. Execution may be also avoided by a plea of diversity of persons, viz., that he is not the same that was attainted, and the like. In this case, a jury shall be empannelled to try the facts. In all such collateral issues, the trial must be instanter, and no time allowed the prisoner to make his defence, or produce his witnesses, unless he will make oath he is not the person attainted. -Fost. 42. By statute 3 Wm. IV. c. 4, § 19, instead of the former punishment for treason, viz., disembowelling the traitor, and dividing his body into four quarters, it is enacted that the sentence to be pronounced shall be, "that such person be drawn upon a hurdle to the place of execution, and be there hanged by the neck till such person be dead, and that afterwards the body of such person shall be dissected and anatomized;" and when any person shall be convicted of murder, his body shall be delivered by the sheriff to a surgeon for dissection. § 20. After sentence pronounced as aforesaid, the judge may, if he see probable cause, order a respite. By 4 & 5 Vic. c. 27, § 4, sentence of death may be pronounced, after conviction for murder, in the same manner, and the court before which the conviction may be had shall have the same power, in all respects, as after conviction for other capital offences. § 5. Every person convicted of murder shall after judgment be confined in some safe place within the prison, apart from all other prisoners, and shall be fed with bread and water only, and with no other food or liquor except in case of receiving the sacrament, or in case of any sickness or wound, in which case the surgeon of the prison may order other necessaries to be administered: and no person but the gaoler and his servants, and the chaplain and surgeon of the prison, shall have access to any such convict without the permission in writing of the court or judge before whom such convict shall have been tried, or of the sheriff or his deputy. EXTORTION. Extortion is an abuse of public justice, consisting in the unlawful taking by an officer, by colour of his office, of any money or thing of value, where either none at all is due to him, or not so much is due, or before any is due.-Co. Lit. 368; 10 Rep. 102. This offence, it has been justly observed, may be, in some cases, considered more odious than robbery; because it carries with it an appearance of truth, and is often accompanied with perjury, by the breach of an oath of office. The punishment for this offence, at common law, is by fine and imprisonment, and also by a removal from the office, in the execution of which it was committed. And there is a further additional punishment by the statute of Westminster 1, (3 Ed. I, c. 26), by which any sheriff, or other king's officer, who shall take any reward to do his office, shall yield twice as much, and shall be punished at the king's pleasure; under which statute an action lies also to recover this double value. -3 Com. Dig. 323. But justices of the peace, whose office was instituted after the act, are bound by their oath of office to take nothing for the execution of their office but of the king, and fees accustomed, and costs limited by statute. And generally no public officer can take any other fees or rewards than those given him by the statute, or such as have been anciently and accustomably taken, without being guilty of extortion.— Dalt. c. 41. It is extortion in a gaoler to obtain money from his prisoner, by colour of his office.-R. v. Broughton, Trem. P. C. 111; in a coroner to refuse taking an inquest till his fees are paid. -3 Inst. 149; or in an under sheriff to obtain his fees by refusing to execute process till they are paid, or to take a bond for his fee, before execution is sued out.-1 Salk. 330. It is also extortion in a miller or ferryman to take more toll than is due by custom.-R. v. Burdett, 1 Ld. Ray, 149. It is also an indictable offence to persuade another to extort money from a person, whereby money was actually extorted from him.-R. v. Tracy, 3 Salk. 192. EXPLOSIVE SUBSTANCE. By 10 & 11 V., c. 4, § 1, any person unlawfully and maliciously, by the explosion of gunpowder or other explosive substance, destroying or damaging any dwelling house, any person being therein; § 2, or destroying or damaging any building with intent to murder any person, or whereby the life of any person shall be endangered; § 3, or shall by any explosive substance burn, maim, disfigure, disable or do any grievous bodily harm to any person; § 4, or shall unlawfully and maliciously cause any gunpowder or other explosive substance to explode; or send, or deliver to, or cause to be received by any person any explosive substance, or any other dangerous or noxious thing, or cast or throw at or upon, or otherwise apply to any person any corrosive fluid, or other destructive or explosive substance, with intent to burn, maim, disfigure, disable, or to do some grievous bodily harm, shall, although no bodily injury be effected, be guilty of felony. § 5. Offenders liable, at the discretion of the court to be imprisoned in the provincial penitentiary for not less than seven years; or to be imprisoned in any common gaol not exceeding three years. § 6. Maliciously placing or throwing in, into, upon, against or near any building or vessel, any explosive substance with intent to do any bodily damage to any person, or to destroy or damage any building or vessel, or any machinery, working tools, fixtures, goods or chattels, whether any explosion takes place, and whether or not any injury be effected is also made felony, and the offender liable to seven years in the penitentiary, or two years imprisonment in the common gaol, at the discretion of the court. § 7. Attempt by any overt act to set fire to any building, vessel, or to any stack, or to any vegetable produce of such kind, and with such intent, that if the offence were complete, the offender would be guilty of felony and liable to be imprisoned seven years in the penitentiary, is also made felony, and the offender liable to seven years imprisonment in the penitentiary, and not less than three years, or imprisoned in any common gaol not exceeding two years. § 8. Any person knowingly having in his possession, or making or manufacturing any explosive substance, or other |