R. v.

may thereby be induced to make, cannot be given in evidence against him. And where an inducement was thus holden out, to confess a certain offence, and the party in consequence of it not only confessed that offence, but another also which she had committed, and which appeared to be part of the same transaction, it was holden that the confession of the latter offence could not be given in evidence. R. v. Hearn, 1 Car. & M. 109. But the threat or promise must be proved to have been holden out, by some person concerned in the apprehending, examining or prosecuting the prisoner, R. v. Row, R. & Ry. 153. R. v. Gibbons, Car. & P. 97. R. v. Enoch, 5 Car. & P. 539. R. v. Cooper, Id. 535, otherwise the confession will be evidence. There seems to have been at one time a difference of opinion among the judges, upon this subject; R. v. Spencer et al., 7 Car. & P. 776; but it appears that they have since considered that the threat or inducement must be holden out by some person in authority, as above-mentioned, otherwise the confession will be receivable in evidence. Sarah Taylor, 8 Car. & P. 733. But where a man was induced to confess that he was present at a murder, in consequence of a hand-bill offering, on the part of government, a reward and a pardon to any accomplice,-Cresswell, J. held that the confession could not be given in evidence. R. v. Boswell et al., 1 Car. & M. 584. However, nothing short of a threat, or a promise of favour with respect to the offence, will have the effect of excluding evidence of a confession. See R. v. Thornton, Ry. & P. 77. R. v. Gilham, Id. 186. R. v. Lloyd, 6 Car. & P. 393. R. v. Shaw, Id. 372. The fact of the prisoner's being drunk at the time, also, will not exclude his confession. R. v. Spilsbury et al., 7 Car. & P. 187. Also, after an inducement by threat or promise has been holden out to a prisoner, and if before any confession actually made, the prisoner be undeceived as to the promise or threat, and assured that he has nothing to hope from the one or fear from the other, any confession he makes afterwards will be receivable in evidence. R. v. Cleeves, 4 Car. & P. 221. R. v. Richards, 5 Car. & P.318. See R. v. Dingley et al., Car. & K. 637. Therefore, where constables had induced a prisoner to confess, by telling him that his companions had "split," and he might as well do the same; but afterwards, upon his appearing before the magistrate who took the examination, he informed the prisoner that his confessing would do him no good, but that he would be committed to prison to take his trial: Lord Denman, C. J., held that a confession by the prisoner to the magistrate, after his caution, was receivable in evidence. R. v. Howes, 6 Car. & P. 404. S. P. R. v. Hearn, 1 Car. & M. 109. But a person in the presence of the prosecutor, merely saying that the party was not bound to say anything unless she liked, and that if she had

any thing to say the prosecutor would hear her, will not be sufficient for that purpose. R. v. Hewett, 1 Car. & M. 534.

But even in cases where the confession of a prisoner is not receivable in evidence, on account of its having been obtained by means of some threat or promise, any discovery made in consequence of it may be proved; R. v. Warwickshall, 2 East, P. C. 658. R. v. Mosey, 1 Leach, 265, n.; and in such a case the person who made the discovery, may be asked, whether, in consequence of something he heard from the prisoner, he found any thing, and where, &c., or the like; and the witness in answer can only give evidence of the fact of the discovery. 1 Arch. Peel's Acts, 194.

Care must be taken that the prisoner be not examined on oath, otherwise his examination cannot be read. Even where at the conclusion of an examination were the words "taken and sworn before me," Park, J. not only refused to receive it in evidence, but refused to receive the evidence of the magistrate's clerk that in fact the prisoner was not sworn. R. v. Rivers, 7 Car. & P. 177. S. P. R. v. Pikesley, 9 Car. & P. 124. So, where it was headed "the information and complaint" of A. B., Gurney, B. refused to receive it in evidence. R. v. Bentley, 6 Car. & P. 148. But what the prisoner may have said on oath upon another occasion, particularly if said voluntarily, and not in pursuance of a summons or other process, will be admissible in evidence against him. R. v. Tubby, 5 Car. & P. 530. See 1 Arch. Peel's Acts, 196, 197.

It may be necessary to mention that the confession of one of two persons charged with a joint offence, cannot be received in evidence against the other, even although the latter were present when the confession was made, and did not deny it. R. v. Appleby, 3 Stark, 33. R. v. Swinnerton et al., 1 Car. & M. 593. And see R. v. Turner, Ry. & M. 347. Palin v. Andrews, Moody & M. 336.

Summons of a witness.] If, upon the prisoner being remanded, or indeed at any time before the examination is finally closed, the justice be apprised that any person, who can give material evidence in the matter, will not voluntarily attend before him, he may grant the following summons: see Dalt. c. 164.

Berkshire :-To the constable of · -:

&c.

Whereas information hath been made before me, J. P., esquire, one of Her Majesty's justices of the peace for the said county, that A. D. late of in the county aforesaid, [on the day of in the year of our Lord 1846, at describing the offence as in a warrant of commitment:] "And that C. D., of - —, in the said county, farmer, is a material and necessary witness to be examined concerning the same:

day

These are therefore to require you to summon the said C. D. to appear before me, at ——, in the said county, on the of, at the hour of in the -noon of the same day, to testify his knowledge concerning the premises. Herein fail you not. Given under my hand and seal, the day of in the year of our Lord

J. P.

A copy of this summons should, in strictness, be served personally on the witness, and the original at the same time shown to him.

Whether a warrant can be issued, in case the witness fails to obey the summons, seems to be doubted. In Evans v. Rees, (12 Ad. & El. 55, 9 Law J. 83, m.) this was doubted by Littledale, Patteson, and Williams, JJ., but they refrained from giving an opinion upon the subject. Lord Denman, C. J., however, intimated an opinion in favour of the legality of a warrant in such a case; he said that he had no doubt that justices had sufficient power to do what was necessary to compel the attendance of a witness, who appeared to be material, either in a case of misdemeanor or felony; and if the warrant in that particular case had authorized the constable to apprehend the witness, in order to bring him to give his evidence, he thought there was little doubt such a proceeding would be good. Id. But as the warrant in that case required the constable to bring the witness before the magistrate, "to find sufficient bail to appear and give his evidence at the next assizes," the whole court held it bad. Id.

Binding the parties to prosecute, &c.] If, upon considering the evidence which has been given on the part of the prosecution, together with the examination of the accused, there appear to be no case made out against him, the justice should discharge him. But if the evidence against the accused be such, that the justice thinks it should be submitted to a jury to consider and decide upon it, it will then be his duty to bind the prosecutor or party grieved in a recognizance to prosecute and give evidence, and each of the witnesses in a recognizance to give evidence. See 7 G. 4, c. 64, 88. 2, 3, ante, p. 287. This is done, by stating to the prosecutor or witness, the substance of the recognizance and condition, stating it however in the second person, 'you acknowledge yourself to owe to our sovereign Lady the Queen," &c. It is only the recognizance of the prosecutor or witness, merely, that can be required; the magistrate cannot compel him to find sureties for his performance of the condition of the recognizance. The only seeming exception to this is, the case of a married woman; as she cannot enter into a recognizance herself, she must procure her husband or some other person to enter into the recognizance for her. If the prosecutor or witnesses refuse to enter into the recognizance, or in the case of a

married woman, if she do not procure her husband or other person to enter into a recognizance for her, the magistrate may commit them until the sessions, &c., or until such recognizance be given see Bennet v. Watson, 3 M. & S. 1 :—a power, however, which should be exercised with great caution. It is for the justice to consider whether the case be a proper one for the sessions or the assizes, and bind the prosecutor and witnesses over accordingly. The following are the forms of the recognizances:

Recognizance to prosecute and give evidence. Berkshire:-Be it remembered, that on the

day of

in the year of the reign of Queen Victoria, C. D. of · in the said county, yeoman, personally came before me, J. P. one of Her Majesty's justices of the peace for the said county, and acknowledged himself to owe to our sovereign Lady the Queen the sum of, of good and lawful money of Great Britain, to be made and levied of his goods and chattels, lands and tenements, to the use of our said Lady the Queen, her heirs and successors, if he the said C. D. shall fail in the condition hereon indorsed [or underwritten, as the case may be.] J. P. The condition of the within [or above] written recognizance is such, that whereas one A. B. late of was this day brought before the justice within [or above] mentioned by the within [or above] bounden C. D., and was by him charged, for that the said A. B. [on at -, &c. describing the offence, as in the warrant:] if therefore he the said C. D. shall and do at the next general [quarter sessions of the peace, or gaol delivery,] to be holden in and for the said county, prefer, or cause to be preferred, one bill of indictment for the said felony against the said A. B., and shall then also give evidence there concerning the same as well to the jurors that shall then inquire of the said felony, as also to them that shall pass upon the trial of the said A. B., that then the said recognizance to be void, or else to stand in full force and virtue.

Recognizance to give evidence.

Berkshire:-
:-Be it remembered, that on the

day of in the year of the reign of Queen Victoria, E. F., of in the said county, yeoman, did come before me, J. P., one of Her Majesty's justices of the peace in and for the said county, and did acknowledge himself to owe to our sovereign Lady the Queen the sum of ten pounds of lawful money of Great Britain, to be made and levied of his goods and chattels, lands and tenements, to the use of our said Lady the Queen, her heirs and successors, if he

or,

the said E. F. shall fail in the condition hereon indorsed," [or, "underwritten," as the case may be.] J. P. "The condition of the within [or, above] written recognizance, is such, that if the within [or, above] bounden E. F. shall personally appear at the next general [quarter sessions of the peace," gaol delivery,] to be holden at- in and for the said county, and then and there give such evidence as he knoweth, upon a bill of indictment to be exhibited by C. D. of -, yeoman, to the grand jury, against A. B., late of labourer, for [feloniously stealing the property of the said C. D." or stating shortly the offence], "and in case the said bill be found a true bill, then, if the said E. F. shall then and there give evidence to the jurors that shall pass on the trial of the said A. B., upon the said bill of indictment, and not depart thence without leave of the court; then this recognizance to be void, or else to remain in its full force."

Care must be taken that these recognizances, together with the depositions of the witnesses, and the examination of the accused, be carefully transmitted to the proper officer of the court in which the trial is to be, so as to be delivered to him before or at the opening of the court on the first day of the assizes or sessions. See ante, p. 287.

Right of prisoner to copies of the depositions.] By stat 6 & 7 W. 4, c. 114, s. 3, all persons who shall be holden to bail or committed to prison for any offence against the law, shall be entitled to require and have, on demand, from the person who shall have the lawful custody thereof, (and who is hereby required to deliver the same), copies of the examinations of the witnesses respectively, upon whose depositions they have been so holden to bail or committed to prison, on payment of a reasonable sum for the same, not exceeding three halfpence for each folio of ninety words: Provided that if such demand shall not be made before the day appointed for the commencement of the assize or sessions at which the trial of the person on whose behalf such demand shall be made is to take place, such person shall not be entitled to have any copy of such examination of witnesses, unless the judge or other person to preside at such trial shall be of opinion that such copy may be made and delivered without delay or inconvenience to such trial; but it shall nevertheless for such judge or other person, so to preside at such trial, if he shall think fit, to postpone such trial on account of such copy of the examination of witnesses not having been previously had by the party charged. This, however, does not extend to the case of a prisoner merely remanded for re-examination; he has no right to copies, until the whole of the examination is completed. Exp. Fletcher, 13 Law J. 67 m. S.C. nom. R. v. Ld. Mayor of London, 5 Q. B. 555.