to the clerk of the court where the accused person is to be tried, or other proper officer appointed by law, to be proceeded upon in like manner as other recognizances; and such certificate shall be prima facie evidence of the non-appearance of the accused per

son..

590.—Evidence for the Prosecution.—When the accused is before a justice holding an inquiry, such justice shall take the evidence of the witnesses called on the part of the prosecution.

2. The evidence of the said witnesses shall be given upon oath, and in the presence of the accused; and the accused, his counsel or olicitor, shall be entitled to cross-examine them.

3. The evidence of each witness shall be taken down in writing in the form of a deposition, which may be in the FORM S in SCHEDULE ONE, (1) or to the like effect.

4. Such deposition shall, at some time before the accused is called on for his defence, be read over to and signed by the witness and the justice, the accused, the witness and justice being all present together at the time of such reading and signing.

5. The signature of the justice may either be at the end of the deposition of each witness, or at the end of several or of all the depositions in such a form as to show that the signature is meant to authenticate each separate deposition.

6. Every justice holding a preliminary inquiry is hereby required to cause the depositions to be written in a legible hand and on one side only of each sheet of paper on which they are written.

7. Provided that the evidence upon such inquiry or any part of the same may be taken in shorthand by a stenographer who may be appointed by the justice, and who before acting shall make oath that he shall truly and faithfully report the evidence; and, where evidence is so taken, it shall not be necessary that such evidence be read over to or signed by the witness, but it shall be sufficient if the transcript be signed by the justice and be accompanied by an affidavit of the stenographer that it is a true report of the evidence.

(1) For form S, see p, 236, post.

This Article expressly provides that the accused, his counsel, or solicitor shall be entitled to cross-examine the witnesses for the prosecution; and it thus recognises the right of the defendant to be represented, at the preliminary investigation, by his counsel or attorney.

It also provides that the evidence of the witnesses shall be given in the presence of the accused, and, therefore, the preliminary enquiry cannot be proceeded with in his absence.

A defendant charged with the commission of an indictable offence is not to be called upon to plead; but the case is to be substantiated against him, in the first instance; for, with the exception of the cases provided for by Articles 765, 783 and 810, post, justices have no power in indictable offences to deal with the accused, summarily, even though he openly admit his guilt.

The manner of taking the depositions varies: In some places it is usual in all indictable cases to take down the evidence in the form of a deposition, at once; in others, abbreviated notes are taken of the examination before the magistrate, copied verbatim, and afterwards read over to the witnesses in the presence of the accused, the latter having every opportunity of cross-examination and of making objections. The former of these two modes is the more correct: but the latter has been approved, and depositions so taken have been held admissible. (1) If the latter plan is adopted, the depositions should be merely a plain copy of the notes; and the clerk should not, in the absence of the magistrate, ask the witnesses any questions to complete the depositions; (2) even though the accused be present at the time. (3)

The evidence should be taken down as nearly as possible in the witness' own words, and the deposition should contain the crossexamination and re-examination as well as the examination in chief'; and any interruption or observation which may be made by the accused should also be taken down. It may be evidence against him. (4) But it should be made to appear, upon the depositions, under what circumstances the observation was made. (5)

(1) R. v. Bates, 2 F. & F. 317.

(2) R. v. Christopher, 14 J. P. 83; 19 L. J. M. C. 103. (3) R. v. Watts, 33 L. J. M. C. 63.

(4) R. v. Stripp, 25 L. J. M. C. 109.

(5) See R. v. Jarvis, L. R. 1 C. C. R. 94; 37 L. J. M. C. 1.

Interest or Crime, no Bar to a Witness' Competency.-A person shall not be incompetent to give evidence by reason of interest or crime. (Can. Ev. Act. 1893, 56 Vie. e, 31, sec. 3).

Accused and Husband and Wife Competent.Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness, whether the person so charged is charged solely or jointly with any other person. Provided, however, that no husband shall be competent to disclose any communication made to him by his wife during their marriage, and no wife shall be competent to disclose any communication made to her by her husband during their marriage. (Can. Ev. Act, 1893, sec. 4).

Number of Witnesses Necessary.-As a rule, one witness is sufficient, if he can prove the necessary facts. But, with regard to certain offences, it is specially provided by Article 684 of the Criminal Code that no person charged with any of such offences shall be convicted upon the evidence of one witness, unless such witness is corroborated, in some material particular, by evidence implicating the accused.

The offences subject to this special provision are the following : FORGERY. (Article 423 of the Code.)

PERJURY. (Article 146.)

PROCURING A FEIGNED MARRIAGE. (Article 277.)

SEDUCTION AND DEFILEMENT OF FEMALES.

TREASON. (Article 65.)

(Articles 181 to 190.)

Ordering Witnesses Out of Court.—On the application of either of the parties, an order will, as a general rule, be given for all witnesses, except the one under examination, to leave the court. This order may be applied for at any stage of the enquiry, and it is rarely withheld ; (1) although the authorities are somewhat conflicting as to whether it can be demanded of strict right, especially with regard to a prisoner. (2)

(1) Southey v. Nash, 7 C. & P. 632.

(2) Stark. Ev. 162; 2 Tayl. Ev. 8 Ed., sec. 1400; R. v. Cook, 13 How. St. Tr. 348; R. v. Vaughan, Ib., 494.

If any of the witnesses remain in court after an order has been made to withdraw, the justices will have no right to exclude their testimony, however much the witness' wilful disobedience of the order may lessen the value of his evidence. (1)

With regard to ordering witnesses out of court, an exception is made in favor of medical witnesses when their evidence is merely to medical facts. And, of course, the defendant, although he is to be called as a witness, will also have the right to remain.

Evidence Must, as a Rule, be Upon Oath.-The second paragraph of the above Article, 590, requires the evidence of the witnesses to be given upon oath. But a person who, when called upon to give evidence, objects, on grounds of conscientious. scruples, to take an oath, or who is objected to as incompetent to take an oath, may (by virtue of section 23 of the Canada Evidence Act. 1893) make an affirmation in the following form: "I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth, and nothing but the truth." And upon making such solemn affirmation, the evidence of the person so affirming is to be taken, and to have the same effect as if taken under oath.

The general form of oath is as follows.

The evidence you shall give touching this information (or complaint, or the present charge, or as the case may be), wherein is the informant (or complainant, or, as the case may be), and is the defendant (or as the case may be), shall be the truth, the whole truth. and nothing but the truth. So help you God."

The New Testament should, if the witness is a Christian, be held by him in his right hand, during the administration of the oath; and at its conclusion he should kiss the book.

The form of oath is to be accommodated to the religious persuasion which the swearer entertains of God, and is to be administered in such a manner as is binding on the witness' conscience.. (2)

(1) Chandler v. Horne, 2 M. & Rob. 423; Cobbett v. Hudson, 22 L. J. Q. B. 13.

(2) Roscoe. Ev. 5 Ed. 122.

If a person offered as a witness admits that he has no belief in God or in a future state, he cannot be sworn, and, formerly his evidence could not be received at all. (1)

But the Evidence Amendment Act, 1869, (2) made an important change, in England. Section 4 of that Act provided that, if any person called to give evidence in any Court of Justice should object to take an oath, or be objected to as incompetent to take an oath, such person should, upon the presiding judge being satisfied that the taking of an oath would have no binding effect on his conscience, make a solemn promise and declaration to tell the truth. And, in the famous case of Clarke v. Bradlaugh, it was held by Mathews, J., (confirmed in Appeal), that, although the Act did not give to a member of parliament, having no religious belief, the right to affirm instead of taking the oath required of him by the Parliamentary Oaths Act, 1866, (3) before taking his seat in the House, it enabled and even required persons, having no religious belief and upon whose conscience an oath would have no binding effect, to give evidence, by solemnly affirming and declaring instead of swearing. (4)

Later on, it was enacted, by the Oaths Act, 1888, (5) that, in all places, and for all purposes, where an oath is required, by law, every person, upon objecting to be sworn and stating as the ground of such objection, either, that he has no religious belief, or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn declaration and affirmation, instead of taking an oath, and that such affirmation shall be of the same effect as if he had taken the oath.

In Canada, we have now, in effect, the same law, in section 23 of the Canada Evidence Act, 1893, supra.

A witness who states that he is a Christian cannot be further questioned before being sworn. (6)

(1) Anon, 1 Leach, 341 (n); R. v. White, 1 Leach, 430, Maden v. Catanagh, 26 J. P. 248.

(2) 32-33 Vic., (Imp.), c. 68.

(3) 29 Vic. (Imp.), c. 29.

(4) Clarke v. Bradlaugh, L. R., 7 Q. B. D. 38.

(5) 51-52 Vic. (Imp.), c. 47, sec. 1.

(6) R. v. Serva, 2 C. & K. 56.