Sect. 14.

NOTE.

that the charge being within their jurisdiction, they were at liberty to exercise it, and convict of an aggravated assault, if they thought upon the evidence that offence and not a felony had been committed. But POLLOCK, C.B., and WILDE, B., held that the charge made was not an assault of an aggravated character within 16 & 17 Vict. c. 30, but was an assault involving statutory offence of a distinct character, over which the justices had no jurisdiction. The two latter learned judges, however, in their judgments, relied mainly upon the word "abuse" in the information, construing that word as one showing an assault of a distinct character from the 66 common "assault mentioned in the Criminal Procedure Act, 1853 (16 & 17 Vict. c. 30), for which the justices could inflict two months' imprisonment, and from the "aggravated" assault in the same statute for which six months' imprisonment could be imposed; POLLOCK, C.B., in his judgment, saying: It may be material to consider what is the meaning of common assault.' It appears to me that it means an assault not accompanied by any such aggravated circumstances as would give the assault the character of a distinct offence recognised by the law as something more than an assault. The assault may be accompanied by violence in which death ensues, and then the offence would be murder or manslaughter, or it may be accompanied by such circumstances as to leave no doubt of an intention to commit a rape, and it would then be an assault with intent to commit a rape. In my judgment, an assault with intent to commit a rape is as distinct an offence from a common assault as murder is from rape, and in all these cases the fact that the crime is accompanied with an assault does not make the two identical, or make them of the same class of offences. The magistrates have no authority except to inquire into charges of common assault, and that when it appears that the charge of assault really involves an offence of a distinct character-one marked out for a totally different mode of punishment they ought not, if there be any ground for the charge, to determine it, but should send it for trial."

BRAMWELL, B., agreed with the CHIEF BARON that if the charge had been one of rape, the justices would have had no jurisdiction to deal with the case as they did, but should have dismissed the charge of rape if they disbelieved the evidence, and then to have entertained the new one of common assault; but he came to the conclusion that the special charge made was one of assault with which the justices had power to deal.

In Wilkinson v. Dutton, 3 B. & S. 821, and 6 Jur. 1247; 32 L. J. M. C. 152; 8 L. T. 276, an information for assault was laid before justices, and upon the hearing, the evidence given amounted, if true, to the crime of rape; the justices disbelieved that part of the evidence which carried the offence beyond that of assault, and convicted of a common assault. It was held that they were justified in so convicting, CROMPTON, J., saying: "It is not to be supposed that the justices would deal with the case as one of common assault, if the evidence showed that a rape had really been committed. The credibility of the evidence has, from the

NOTE.

time of Lord TENTERDEN, been for the justices to determine, Sect. 14. and it is easily conceivable that, though they might doubt the evidence as to the rape, they might see that there was amply sufficient to show that there had been a common assault." And see Anon., 1 B. & Ad. 382.

For procedure in the case of two or more informations, as to pronouncing conviction, etc., see note to s. 10, at p. 49, ante, and cases there set out.

Summary Conviction for minor Offence Bar to Indictment on same Facts for graver.-Where an information is laid before justices for an assault, and the charge is gone into, and all the facts and circumstances of the charge as they then exist are before the court, and the defendant is convicted, such conviction is a bar to any subsequent proceedings for the same cause, but if after such conviction fresh facts following from the same assault occur, which if they had occurred before the conviction would have necessitated a different and graver charge being preferred before the justices against the defendant, then such a conviction is not a bar to an indictment for such graver charge. See R. v. Morris, L.R. 1 C. C. R. 190; 31 J. P. 516; 36 L. J. M. C. 84; 16 L. T. 636; 15 W. R. 990; 10 Cox C. C. 480, where it was held that a previous summary conviction for an assault before justices under 24 & 25 Vict. c. 100, s. 42, is not a bar to a subsequent indictment for manslaughter upon the death of the man assaulted consequent upon the same assault (KELLY, C.B., dissentiente), MARTIN, B., saying: "A new offence, in my opinion, arose when the man died," and BYLES, J.: "The form and intention of the common law pleas of autrefois convict and acquit, show that they only apply where there has been a former judicial decision on the same accusation in substance, and when the question in dispute has already been decided. There has in the present case been no judicial decision on the same accusation, and the whole question now in dispute could not have been decided, for at the time of the hearing before the magistrates, whether the assault would amount to culpable homicide or not, depended on the then future contingency whether it would cause death. It is to be observed that the statute does not say for the same act, but 'for the same cause.' The word 'cause may undoubtedly mean 'act,' but it is ambiguous, and it may also, and perhaps with greater propriety, be held to mean, cause for the accusation.'

So in R. v. Walker, 2 Moo. & R. 446, it was held by ColtMAN, J., that a conviction by justices for a common assault was a bar to an indictment for felonious stabbing, and R. v. Stanton, 5 Cox C. C. 324, when the prisoners were indicted for feloniously wounding with various intents, and were found guilty of a common assault, and ERLE, J., was of opinion that the conviction by justices would have been an estoppel to an indictment of felonious assault if pleaded, and thought he was bound to treat the matter as already adjudicated upon, and directed the prisoners to enter into their recognizances.

Sect. 14.

NOTE.

In R. v. Miles, 24 Q. B. D. 423; 54 J. P. 549; 59 L. J. M. C. 56; 62 L. T: 572, the defendant was convicted upon an indietment which charged him (in the first count) with unlawfully and maliciously wounding; (in the second count) with unlawfully and maliciously inflicting grievous bodily harm; (in the third count) with causing actual bodily harm; and (in the fourth count) with common assault. At the trial the defendant pleaded and proved the following conviction in respect of this same assault before a court of summary jurisdiction :

"G. M., hereinafter called the defendant, is this day convicted for that he . . . did unlawfully assault and beat one C. L., and the court being of opinion that the said offence was of so trifling a nature, that it is inexpedient to inflict any other than a nominal punishment, and the defendant having given a security to the satisfaction of the court to be of good behaviour is discharged " :Held, that the aforesaid summary conviction was a bar to the proceedings against the defendant at the Central Criminal Court for the same offence, and that the conviction upon the indictment must accordingly be quashed.

And in R. v. Elrington, 31 L. J. M. C. 14; 1 B. & S. 688; 9 Cox C. C. 86; 8 Jur. 97; 5 L. T. 284; 10 W. R. 13, it was held that where the justices had, on information for assault by the party aggrieved, dismissed the information as not proved, and granted a certificate of dismissal, such certificate is a bar to an indictment for unlawful wounding arising out of the same circumstances, COCKBURN, C.J., saying: "It is a fundamental principle that out of the same state of facts a series of prosecutions is not to be allowed." See also R. v. Fox, post, note to s. 31 of 42 & 43 Vict. c. 49; Reg v. Grimwood, 60 J. P. 809; 13 T. L. R. 70; and R. v. Hastings JJ., Ex parte Kinnis, 61 J. P. 740. As to the validity of magistrates' decision forwarded on their own knowledge, see Reg. v. Field and Others, 11 T. L. R. 240; and Shortt v. Robinson, 63 J. P. 295; 68 L. J. Q. B. 352; 80 L. T. 261.

Where justices are equally divided on the hearing of an information, the proper course for them to take is to adjourn the case in order that a rehearing may be had before a reconstituted bench. If, however, the justices dismiss the information a subsequent information for continuing the offence will not lie against the same party if the circumstances remain the same. As long as the dismissal of the first information stands, it exists as a decision between the same parties upon the same subject-matter given by a competent tribunal, and the second bench of justices has no power to reopen the hearing (Kinnis v. Graves, 67 L. J. Q. B. 583; and also R. v. Ashplant, 52 J. P. 474 ; Ex parte Evans, 63 L. J. M. C. 81; and R. v. Monmouthshire JJ., 4 B. & C. 844); and see Bagg v. Colquhoun, [1904] 1 K. B. 554; 68 J. P. 159; 73 L. J. K. B. 272; 90 L. T. 386, where an information was heard before two justices, who, after hearing the evidence, announced in open court that they were divided in opinion :-Held, that the justices had, nevertheless, power to adjourn the case for rehearing before a reconstituted court.

Prosecutor's Right to call Witnesses in Reply. The learned editors of the Justice of the Peace, at 69 J. P. N. 477, are of opinion that it is a matter for the discretion of the court whether the evidence proposed comes within the category in the section or not (viz., "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 as to his (the defendant's) general character "), and the discretion of the justices to refuse to hear further evidence tendered by the prosecution will not be interfered with by mandamus. See R. v. Knight, 41 Sol. J. 276.

everv

15. Examination of witnesses upon oath.] witness at any such hearing as aforesaid shall be examined upon oath or affirmation, and the justice or justices before whom any such witness shall appear for the purpose of being so examined shall have full power and authority to administer to every such witness the usual oath or affirmation.

Competency of Informer or Prosecutor.-Under this section every prosecutor and complainant, where justices have power to make an order for the payment of money or otherwise, whatever may be his interest in the result, is a competent witness to support the information or complaint. And since the Evidence Act, 1851 (14 & 15 Vict. c. 99), an informer is competent in all cases, irrespective of any pecuniary interest he may have in the penalty or result. It may be mentioned that in criminal matters the death of the informer does not abate the proceedings (R. v. Truelove, ante, p. 20).

As to the right of a police constable who lays an information to examine and cross-examine witnesses, and generally to act as advocate for the prosecution, see Webb v. Catchlove, 50 J. P. 795.

Oath or Affirmation.-The statute relating to judicial oaths as to Quakers and Moravians, is the Quakers and Moravians Act, 1838 (1 & 2 Vict. c. 77). Persons objecting to take an oath may affirm under 51 & 52 Vict. c. 46.

It is the duty of a judge, before permitting a witness to affirm under s. 1 of the Oaths Act, 1888 (51 & 52 Vict. c. 46), to inquire into his ground of objection to being sworn, and to ascertain whether he objects, because he has no religious belief, or because the taking of an oath is contrary to his religious belief (Reg. v. Moore, 56 J. P. 345; 61 L. J. M. C. 80).

66

Oaths are binding which are administered in such form and with such ceremonies as the person sworn declares to be binding." See Stephen's Digest of Law of Evidence (5th ed.), p. 141, and Omichund v. Barker, 1 Smith's Leading Cases, 455.

See notes to s. 17 of 11 & 12 Vict. c. 42, post, where the Oaths Act, 1888, is set out.

Sect. 14.

NOTE.

Sect. 15.

NOTE.

By the Prison Act, 1898 (61 & 62 Vict. c. 41), s. 11, a Secretary of State may order a prisoner to be taken to any place required in the interests of justice.

In cases under the S. J. (Married Women) Act, 1895 (58 & 59 Vict. c. 39), the Appeal Court (viz., the Probate, Divorce, and Admiralty Division of the High Court) requires to be furnished with proper notes of evidence taken before the court of summary jurisdiction, and with the reasons of the justices for determining the case. In all such cases it is advisable for a full note to be taken of the evidence given. See Robinson v. Robinson, 67 L. J. P. 77; 78 L. T. 392; 14 T. L. R. 385; and Cobb v. Cobb, [1900] P. 145; 64 J. P. 200; 69 L. J. P. 52. In this latter case the President (Sir FRANCIS JEUNE) said "There must be supplied to us (viz., the Probate Division), first, two copies of the notes of evidence; secondly, the justices' decision; thirdly, the justices' reasons for their decision. See also Barker v. Barker, 69 J. P. 82, 192; 74 L. J. K. B. 74; 21 T. L. R. 253; Harling v. Harling, 60 J. P. 377; Wenham v. Wenham, 70 J. P. N. 340, and on the subject generally of taking notes, see an article in 70 J. P. 337, and a treatise at 62 J. P. 321.

16. Adjournment of hearing.] Before or during such hearing of any such information or complaint it shall be lawful for any one justice, or for the justices, in their discretion, to adjourn the hearing of the same to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties, or their respective attornies or agents then present, and in the meantime the said justice or justices may suffer the defendant to go at large, or may commit [10] him to the common gaol or house of correction, or other prison, lockup house, or place of security, in the county, riding, division, liberty, city, borough, or place for which such justice or justices shall be then acting, or to such other safe custody as the said justice or justices shall think fit, or may discharge such defendant upon his entering into a recognizance [36] with or without surety or sureties, at the discretion of such justice or justices, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned; and if at the time or place to which such hearing or further hearing shall be so adjourned either or both of the parties shall not appear personally, or by his or their counsel or attornies respectively, before the said justice or justices, or such other justice or justices as shall then be there, it shall be lawful for the justice or justices then there present to proceed to such hearing or further hearing as if such