however, some few exceptions to this rule which it would be well for members of naval courtsmartial to bear in mind. We shall endeavour in the first instance to show what is meant by hearsay evidence, and, secondly, in what cases it would be right to admit its production.

Hearsay evidence is when the witness relates circumstances not within his immediate knowledge, but from information he has gained from another party: the production of papers which the witness recognizes to be in the handwriting of a particular person is called hearsay evidence, for the term may be applied both to that which is written and that which is spoken.*

If a person were charged with endeavouring to make a mutinous assembly, and letters were found in his possession, or in his handwriting, containing matter relative thereto, such letters would be received as good evidence to prove the guilt of the accused.

The statements of a dying person, provided he knew himself to be dying at the time he made them, are good evidence; but this rule can only apply where the death of the party is the subject of the charge: it could not be received to substantiate the proof of any other crime but murder.†

"The preliminary inquiry before dying declarations can be received in evidence is, whether the deceased apprehended that he was in such a state of mortality as would inevitably oblige him soon to * 1 Phillips, 185. † 1 Archbold, 114.

answer before his Maker for the truth or falsehood of his assertions. In arriving at a conclusion. upon this inquiry, as to the admissibility of the proposed evidence, it is not necessary that the deceased should have explained by any expressions, whether he thought himself likely to live or die. In Woodcock's case it was deemed sufficient to give credit to the declarations, that the deceased had been mortally wounded, and was in a condition which rendered almost immediate death inevitable ; and that she was thought by every person about her to be dying. It was considered a proper inference from such circumstances, that she must have felt the hand of death, and must have considered herself as a dying woman. The same doctrine was held in John's case, the court being of opinion, that if it might reasonably be inferred from the wound, or state of illness of a dying person, that he was sensible of his danger, his declaration would be good evidence. And in Rex v. Bonner, Patteson, J., said that it is not necessary to prove expressions of apprehension of immediate danger."

The dying declarations of a person who expressed an opinion that he would recover, could not be held as good evidence.

Evidence of what the prisoner said within the hearing of the witness is admissible, as direct or original evidence, and must not be confounded with hearsay evidence. If a body of men conspire to * 1 Phillips, 284.

carry out an unlawful act, and one of them commit an offence either in action, or by speaking, or writing, in furtherance of the ends for which the conspiracy was formed, the whole are in the eyes of the law equally guilty.* Evidence of seditious speeches made in the meetings of the conspirators would be received not only against the speakers, but against all who were connected with the conspiracy.

* 1 Phillips, 199.

59

CHAP. VIII.

EXAMINATION OF WITNESSES.

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Examination of Witnesses. Prosecutor not to address the Court on the Matter in issue. Rules to be observed in the Examination of Witnesses. Witness not to read his Evidence. May refresh his Memory by referring to Notes or to the Ship's Log-Book.Rules for the Crossexamination of Witnesses. - Object of cross-examining a Witness. Party not to be permitted to discredit his own Witness by general Evidence. - Credit of a Witness may be impeached by the opposite Party. Evidence of Seamen should not be rejected on slight Grounds. Opinion of the Law Officers as to the proper Mode of Proceeding when the Evidence does not affect one or more of several Persons included in the same Charge. Affidavits from Witnesses who refuse to attend personally not to be received in Evidence. - Letters and Certificates produced by the Prisoner in his Defence.

AT naval courts-martial it is optional with the Court to allow the prosecutor to make a statement with reference to the matter in issue. Except in particular cases, it is generally refused, and after the preliminary forms of the Court have been complied with, it is usual to proceed at once to examine the witnesses in support of the charges on which the prisoner is to be tried.

The degree of faith to be attached to the testi

mony of a witness, will of course depend upon the means he has had of obtaining a correct knowledge of the circumstances which he is called upon to substantiate; his veracity, general character, disinterestedness in the issue, and freedom from prejudice against the accused; these will be judged of by the members of the Court, and every man will place such reliance on the evidence as in his own conscience he believes it to deserve.

There are two rules which the members of naval courts-martial should be particular in enforcing in the direct examination of witnesses :

1st. Never to allow questions to be put to a witness, the answer to which cannot bear directly on the matter in issue.

2nd. Nor questions which by their purport evidently suggest the answer which the prosecutor desires to elicit. To the latter rule there are a few exceptions:- To identify a person whom the witness has already described, the person may be pointed out to him, and he may be asked in direct terms if he be the person meant to contradict a fact stated by a previous witness. In some cases where the witness appears to be prejudiced against the party who called him, the Court will allow leading questions to be put. Immaterial questions, which are introductory to others that are material, may, at the discretion of the Court, be asked in direct terms.* A witness may not be allowed to read his evidence, but he may refer to notes, to * Archbold, 163.