Enforcing attendance of witnesses. By sect. 7 full powers are conferred upon the justices to compel the attendance of witnesses, either for the complainant or the defendant. CHAPTER XI. HEARING THE CASE EX PARTE-APPEARANCE OF Hearing the WE have before seen in what case of the absence case ex parte. of the defendant the justices may proceed to the hearing of the information ex parte. Supposing, therefore, that such a state of things exists as will justify the magistrates in proceeding to a hearing in the absence of the defendant (and herein they cannot be too cautious, inasmuch as should it ultimately transpire that the defendant has really never been properly served, very serious consequences may in the end result), they will hear the case with the same care, attention and deliberation, as though the defendant were actually present, his absence in no way justifying the slightest departure from strict proof, and the most formal and critical examination and inquiry. Indeed, in the absence of the defendant, it will be becoming in the justices to receive with greater caution the evidence tendered in support of the charge, and to examine and cross-examine the witnesses with a greater amount of vigilance and care. The course of proceeding will in its various stages be the same, whether the defendant appear or not. of Preliminary If the defendant appear, it is possible that he Appearance will make some preliminary objection to the defendantsummons, warrant, or the information. Upon objections. hearing the objection, the justices will form their opinion upon its sufficiency, and herein they will be guided by the provisions of the 11 & 12 Vict. c. 43, ss. 1, 3, 9, to which it is unnecessary here further to refer. hearing and denying The information, complaint, or summons, Proceeding having been read to the defendant, he will be upon the asked if he has any cause to show why he Confessing should not be convicted, or why an order should the charge. not be made against him, as the case may be; and if he thereupon admit the truth of such information or complaint, and show no cause or no sufficient cause why he should not be convicted, or why an order should not be made against him, then the justice or justices present are to convict him, or to make an order against him accordingly: (11 & 12 Vict. c. 42, s. 14.) In many cases the penalty is a fixed and unalterable one; but in the great majority, the justices have a wide discretion upon the subject, and in the latter case it will be well for them to inquire to some extent into the peculiarities of the case, and the extent of the defendant's misconduct, in order that their judgment may be nicely apportioned to the merits of the case. However, before receiving a plea of guilty, it will be proper for the justices to explain to the defendant the legal definition and quality of his supposed offence, pointing out to him the statutory enactment (when the offence is not of the very commonest order), under which he is charged, lest from an ignorance or a misapprehension of the precise statutory provisions comprehending his offence, he may be induced to plead Proceedings upon the defendant's denying the chargeOrdering witnesses out of court. guilty to a charge with the legal merits of which he is totally unacquainted. Too much caution in this respect cannot well be used, particularly in the cases of married women, who, from an ignorance of the immunity and protection occasionally thrown around them by the law, and a natural inaptitude at appreciating those nice distinctions which frequently exist between legal guilt and innocence, may confess to offences which, in the eye of the law, they have never committed. Indeed, it may be laid down as a sound proposition, that a confession of guilt, even in the shape of a plea of "guilty," made in ignorance of the requisites to constitute the offence, ought not to prevail: (Rex v. Newton, 2 M. C. C. 59; Reg. v. Salter, Exeter Spring Assizes, 1840; Justice of the Peace, 4th April, 1840.) Should the defendant not admit the truth of the information or complaint, as is most usual, the case will then be conducted in a formal and systematic manner, the justices adhering as much as possible to those rules which they find obtaining in the Superior Courts. At this stage of the proceedings it is probable that either the complainant or the defendant will apply to the bench to have the witnesses ordered out of court. Should such an application be made, it will be proper for the justices (though not compulsory upon them), to comply with the request, and direct all the witnesses to wait in an adjoining room, until they are severally required; an exception is generally made in favour of medical witnesses, and the order is never understood to apply to the professional advisers of the parties. Should, however, any of the witnesses in defiance of this order remain in court, the justices will have no right to exclude their testimony, but such conduct will properly be the subject for strong observation, and will, naturally, much weaken the strength of their evidence: (Cook v. Nethercote, 6 C. & P. 741; Chandler v. Horn, 2 Moo. & Rob. 423.) careful to statute upon which the are had. All preliminary matters being arranged, the Justices complainant, or his professional adviser, will state should be his case, as provided for by the 11 & 12 Vict. refer to the c. 43, s. 14. It will, however, at this stage of the proceedings be wise in the justices to have proceedings before them the act or acts of Parliament upon which the proceedings are being taken, for inasmuch as their powers in all cases of summary convictions (save those which have merely relation to the preservation of the peace), are founded entirely upon some legislative enactment, they will necessarily be at a loss properly to comprehend the quality of the offence, or their powers to deal with it, without having before them the legislative authority which describes the offence and gives them power to deal with it. In very many cases the inquiry will turn upon some abstruse and obscure clauses in a local act; in others upon the application of an entirely novel state of facts to an enactment never before sought to be so applied. In such cases especially, a careful reference to the statute book is indispensable; and, indeed, it may be laid down as a sound rule for the safe guidance of justices, to have before them at the outset in every case (except in those of the most ordinary and everyday occurrence), the legislative enactment upon which the proceedings are founded. In all cases which are under the operation of Course of the 11 & 12 Vict. c. 43, the course of proceeding proceeding. upon the hearing is directed by sect. 14, which enacts that The said justice or justices shall proceed to hear the prosecutor or complainant, and such witnesses as he may examine, and such other evidence as he may adduce in support of his information or complaint respectively, and also to hear the defendant and such witnesses as he may examine, and such Evidence. Who may address the bench. other evidence as he may adduce in his defence, and also to hear such witnesses as the prosecutor or complainant may examine in reply, if such defendant shall have examined any witnesses or given any evidence other than to his, the defendant's, general character; but the prosecutor or complainant shall not be entitled to make any observations in reply upon the evidence given by the defendant, nor shall the defendant be entitled to make any observations in reply upon the evidence given by the prosecutor or complainant in reply as aforesaid. It is not within the purpose of these pages to enter into an explanation of the rule of evidence, the subject being too extensive to be satisfactorily dealt with in a short summary. It may, however, be well to observe that, in the reception of evidence, three principal rules should be observed: first, that the best evidence should be produced; second, that it should be relevant to the question in dispute; third, that it should not be elicited by leading questions except when those questions are put by way of cross-examination or re-examination. It will be the duty of the prosecutor in every case to substantiate his charge in the first instance. It is usual and proper for him, or his attorney or counsel, to state the case to the bench. If the prosecutor is himself a witness, and has an attorney or a counsel, it will be wrong in the justices to permit him to address them, otherwise than upon oath and strictly to the facts, as it is desirable for the due administration of justice that the characters of advocate and witness should not be blended in the same person, and this will apply even to the attorney, who, if he be also a witness, ought not to be permitted to address the bench. This position is now well established by several cases. In the case of Stones v. Byron (16 L. J. 32, Q. B.; 1 B. C. Rep. 248), the plaintiff's attorney, in a trial before the sheriff, acted as his advocate by opening the case to the jury, cross-examining the witnesses, and making a speech in reply, and then tendered himself as |