Mode of taking Evidence of Witnesses at Trial.]—A prisoner for felony was tried, but the jury was discharged, owing to being unable to agree. On being put on trial before a second jury, the judge, at the prisoner's request, instead of having the witnesses examined, simply called and swore them, and read over his notes, allowing liberty to examine and cross-examine each witness thereafter:-Held, that this was an irregular practice, whether the prisoner assented to it or not. Reg. v. Bertrand, 16 L. T., N. S. 752; 1 L. R., P. C. 520; 36 L. J., P. C. 51; 16 W. R. 9; 10 Cox, C. C. 618. Upon a trial for felony, other felonies, which have a tendency to establish the scienter, may be given in evidence for that purpose. Reg. v. Weeks, L. & C. 18. On an indictment for arson in setting fire to a rick, the property of A., evidence may be given of the prisoner's presence and demeanour at fires of other ricks, the property respectively of B. and C., occurring the same night, although those fires are the subject of other indictments against the prisoner, such evidence being important to explain his movements and general conduct before and after the fire of A.'s rick; but evidence is not admissible of threats, statements or 17. Evidence of other similar Of particular acts pointing alone to fences. It cannot be shewn on the trial of an indictment that the prisoner has a general disposition to commit the same kind of offence as that charged against him; therefore an admission by the prisoner, charged with an infamous crime, that he had committed the same offence at another time, and with another person, and that he had a tendency to such practices, was rejected. Rex v. Cole, Phil. Evid. 170. But it is no objection to evidence on an indictment for felony, that it also goes to shew the prisoner guilty of another felony. Rex v. Moore, 2 C. & P. 235 - Burrough. In answer to an alibi set up on a trial for felony, the prosecutor may shew the circumstances under which the prisoner was seen near the spot in question; though those circumstances involve the commission of another felony by him. Reg. v. Briggs, 2 M. & Rob. 199 son. Alder Where several felonies are so connected together as to form part of one entire transaction, evidence of them all may be given in order the other indictments, and not tending to implicate or explain the conduct of the prisoner in reference to that fire. Reg. v. Taylor, 5 Cox, C. C. 138-Patteson. Evidence of another felony is admissible to shew the animus of the prisoner, or if the act done was wilful or accidental. A. was indicted for setting fire to a rick on the 29th of March by discharging a gun close to it. Evidence was admitted of his having been seen near the same rick with a gun on the 28th, when it had been also set on fire. Reg. v. Dosset, 2 Cox, C. C. 243-Maule. Upon a trial for breaking into a booking-office of a railway station, evidence was admitted that the prisoners had, on the same night, broken into three other bookingoffices belonging to three other stations on the same railway, the four cases being all mixed up together. Reg. v. Cobden, 3 F. & F. 833— Bramwell. See Reg. v. Rearden, 4 F. & F. 76-Willes. 18. Previous Conviction. to prove a party indicted guilty of (24 & 25 Vict. c. 96, s. 116; 24 & one. Rex v. Ellis, 6 B. & C. 145; 9 D. & R. 174. 25 Vict. c. 99, s. 37.) Before these Statutes. -C., with oner, at the request of his counsel, has not been arraigned on the charge of the previous conviction before the verdict has been given on the subsequent charge, he may afterwards be arraigned thereon, and the jury may afterwards inquire respecting it. Ib. others, was charged in the first Proof-By 14 & 15 Vict. c. 99, s. 13, "whenever in any proceeding whatever it may be necessary to prove the trial and conOn a trial for felony after a pre- viction or acquittal of any person vious conviction the prisoner is to "charged with any indictable of be arraigned on the whole indict-" fence, it shall not be necessary to ment, and the jury is to have the " produce the record of the connew charge only stated to them, "viction or acquittal of such perand if no evidence to character is " son, or a copy thereof, but it shall given, nothing is to be said to the "be sufficient that it be certified or jury of the previous conviction till " purport to be certified under the they have given their verdict on "hand of the clerk of the court or the new charge, and then, without "other officer having the custody being re-sworn, the jury is to hear" of the records of the court where the statement of the previous con- " such conviction or acquittal took viction, and the proof of it. Reg." place, or by the deputy of such v. Shuttleworth, 3 C. & K. 375; T." clerk or other officer, that the & M. 626; 2 Den. C. C. 351; 15" 'paper produced is a copy of the Jur. 1066; 21 L. J., M. C. 36; "record of the indictment, trial, Cox, C. C. 369. "conviction and judgment or acquittal, as the case may be, omit"ting formal parts thereof." 5 On a trial for a felony after a previous conviction if the prisoner's counsel obtains evidence of good character on cross-examination, this entitles the prosecutor to go into evidence of the previous conviction before the jury finds, a verdict on the new charge, the same as if the prisoner had obtained evidence of good character by calling a witness. Reg. v. Shrimpton, 3 C. & K. 373; T. & M. 628; 2 Den. C. C. 319; 21 L. J., M. C. 37; 5 Cox, C. C. 387. It is no objection to an indictment that a previous conviction is stated at the beginning of it, by way of introductory averment, instead of at the end, in the form of a separate count. Reg. v. Hilton, Bell, C. C. 20; 5 Jur., N. S. 47; 28 L. J., M. C. 28; 7 W. R. 59; 8 Cox, C. C. 87. If, to prevent prejudice, the pris- A previous summary conviction, which, under the above statute, is required to be proved by a certified copy, also requires proof of the prisoner's identity as under 7 & 8 Geo. 4, c. 28, s. 11, which remains in this respect as it stood before. The identity may be proved by evidence from which a jury may draw the conclusions that he is the same person named in the certif icate, although no witness saw him convicted at his trial. Reg. v. Leng, 1 F. & F. 77-Byles. In order to prove the identity of a prisoner who is named in a certificate of a previous conviction, it is not necessary to call a witness who was present at the trial to which the certificate relates, it is sufficient to prove that the prisoner is the person who underwent the sentence mentioned in the certificate. Reg. v. Crofts, 9 C. & P. 219-Gurney. It is sufficient evidence of a previous summary conviction, to shew that the certificate of conviction and the warrant agree, and that the prisoner was received into custody under the warrant, without further proving identity. Reg. v. Levy, 8 Cox, C. C. 73-Byles. 66 66 46 By 28 & 29 Vict. c. 18, s. 8, " in any criminal proceeding a witness 66 may be questioned as to whether "he has been convicted of any "felony or misdemeanor, and, up"on being so questioned, if he "either denies or does not admit the fact, or refuses to answer, it "shall be lawful for the cross-ex"amining party to prove such conviction; and a certificate containing the substance and effect only (omitting the formal part) of "the indictment and conviction for "such offence, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court "where the offender was convict"ed, or by the deputy of such clerk or officer (for which certificate a "fee of 5s. and no more shall be "demanded or taken), shall, upon proof of identity of the person, "be sufficient evidence of the said "conviction, without proof of the 'signature or official character of "the person appearing to have "signed the same." 66 66 -66 66 The proper proof that a prisoner was in lawful custody, under a sentence of imprisonment passed at the assizes, is, by the proof of the record of his conviction; and neither the production of the calendar of the sentences signed by the clerk of the assize, and by him delivered to the governor of the prison, nor the evidence of a person who heard sentence passed, is sufficient for this purpose. Reg. v. Bourdon, 2 C. & K. 366-Maule. A certificate of a conviction, made at the quarter sessions for a borough, purporting to be signed by a person described therein as deputy clerk of the peace of the borough, and having the custody of the records of the quarter sessions, is admissible in evidence, as purporting to be made by an officer having the custody of the records of the court where the conviction was made, within 5 Geo 4, c. 84, s. 24, although the 5 & 6 Will. 4, c. 76, gave no power to appoint a deputy clerk of the peace for a borough within that act. Reg. v. Parsons, 1 L. R., C. C. 24; 12 Jur., N. S. 436; 35 L. J., M. C. 167; 14 W. R. 662; 14 L. T., N. S. 450. A person de facto filling an office, carrying with it the custody of the records of the court, may lawfully give such a certificate, although he may not hold such office de jure. Ib.-Bramwell. 19. Maps or Plans. A map or a plan prepared for the purpose of a trial ought not to contain any reference to transactions and occurrences which are the subject-matter of the investigation before the court, and not existing when the survey was made; and if it does, and the objection is taken, the court will not allow the jury to look at it. Req. v. Mitchell, 6 Cox, C. C. 82-Williams. 20. Letters. The post-office marks, in town or country, proved to be such, are evidence that the letters on which they are were in the office to which those marks belong at the time those marks specify. Rex v. Plumer, R. & R. C. C. 264. Though a letter found upon a prisoner may be read, it is no evidence of the facts it states, they must be proved by other evidence. Ib. Letters which have never been in the custody of a prisoner, or any way adopted by him (being in 22. Proof of Documents by Attesting Witnesses. tercepted at the post-office), al-"and such writings, and the evithough directed to him, cannot be "dence of witnesses respecting the read in evidence against him. Rex" same, may be submitted to the v. Hevey, 1 Leach, C. C. 232, 235. "court and jury as evidence of the A letter of instruction from the "genuineness or otherwise of the lords of the Treasury, signed by "writing in dispute." three lords of the Treasury, is admissible upon proof of the handwriting of the three persons whose names were subscribed to it, with- By 28 & 29 Vict. c. 18, s. 7, "in out producing the commission. Rex" all criminal cases it shall not be v. Jones, 2 Camp. 131 - Ellenbor-" necessary to prove by the attestough. "ing witness any instrument to the If a letter, written by one of sev- validity of which attestation is eral prisoners, is read in evidence," not requisite, and such instrument and in this letter the names of the may be proved as if there had other prisoners are mentioned, these "been no attesting witness thereto." names must not be omitted in the reading of the letter, but the judge will tell the jury to pay no attention to the letter, except so far as it affects the writer. Rex v. Fletch-oner in the middle of the day preceder, 4 C. & P. 250-Littledale. 21. Proof of Handwriting. A prisoner's handwriting may be proved by witnesses who have seen him write. Rex v. Hensey, 2 Ld. Ken. 366; 1 Burr. 642. A person who has received letters purporting to come from a party, and has acted on those letters, may prove the handwriting of such party. Rex v. Slaney, 5 C. & P. 213-Tenterden. A policeman who has only once seen a prisoner write, and that since suspicion has been excited against him with reference to the charge upon which he is tried, and upon an opportunity taken by the policeman with the view of being able to speak to his handwriting, is not an admissible witness to prove that a document, the foundation of the charge against the prisoner, is in his handwriting. Reg. v. Crouch, 4 Cox, C. C. 163-Maule. By 28 & 29 Vict. c. 18, s. 8, "in "all criminal cases comparison of a "disputed writing with any writing, proved to the satisfaction of the "judge to be genuine, shall be per"mitted to be made by witnesses; 66 " 23. Notice to Produce. Where notice to produce a policy of insurance was given to the pris ing the trial, the prisoner's residence being thirty miles from the assize town-Held, that secondary evidence of the policy could not be given. Reg. v. Kitson, Dears. C. C. 187; 17 Jur. 422; 22 L. J., M. C. 118; 6 Cox, C. C. 159. Upon an indictment for arson, with intent to defraud an insurance society, the nature of the proceedings does not give notice to the prisoner to produce the policy, so as to dispense with actual notice to produce. Ib. Service of notice to produce on an attorney who had served a notice on behalf of the prisoner, as to an application to bail him upon the charge, is sufficent. Reg. v. Boucher, 1 F. & F. 486—Martin. A notice to produce a document delivered to an attorney, suggested to be the prisoner's attorney, is (in the absence of evidence that he was so) not a valid notice, so as to enable secondary evidence to be given; and the attorney was not allowed to be asked whether he had shewn the notice to his client. Reg. v. Downham, 1 F. & F. 386-Pollock. An indictment alleged that the prisoner, being in the employ of the Post-office, stole a post-letter, to wit, a post-letter directed and addressed as follows, that is to say (setting out the address), which contained property. At the trial, a witness having deposed that he employed a man to post a letter containing the property in question: -Held, that he might be asked how that letter was addressed, although no notice to produce the letter had been given. Reg. v. Clube, 3 Jur., N. S. 698-Pollock. Where a trial has been postponed from one session to another, a notice to produce served on the prisoner in time for the first session is available for the subsequent one without any fresh service, and service on the prisoner in gaol is sufficient. Reg. v. Robinson, 5 Cox, C. C. 183. 24. Production and Inspection of Documents. On an indictment in the Central Criminal Court, for obtaining money by false pretence, that a parcel contained certain letters of the prosecutrix to the prisoner, which he promised, for a valuable consideration, to give up, and which had been seized under a search warrant, a judge on the rota for the session, after the session had opened, made an order in favor of the prisoner for an inspection of the letters. Reg. v. Colucci, 3 F. & F. 103. A solicitor for a prisoner is bound to produce a document, when the prisoner is charged with an offence in respect of such document. Reg. v. Brown, 9 Cox, C. C. 281Willis. If on the trial of an indictment for publishing an obscene snuff-box, a witness proves that the defendant exhibited to him the box produced on the trial, or a box exactly similar, this is not sufficient, if the witness cannot identify the very box exhibited to him. Rex v. Rosenstein, 2 C. & P. 414-Parke. In an indictment for perjury committed on the trial of a person for making a false statutory declaration, the perjury assigned was that the defendant swore that there was no draft of that statutory declaration. The indictment did not shew that the draft was, or had been, in his possession. The draft was supposed to have been made by a firm of solicitors, of which the defendant was a member, on the occasion of a loan of money. At the trial, secondary evidence of the draft was allowed to be given without a notice to produce having been served on the prisoner, it being proved to have been in his possession ::-Held, that a notice to produce was necessary, and that secondary evidence was inadmissible without it. Reg. v. Elworthy, 17 L. T., N. S. 293; 1 L. R., C. C. 103; 37 L. J., M. C. 3; 16 W. R. 207; 10 Cox, C. C. 579. 25. On other Points. Where an indictment charged that a person shot at one Harvey Garnett Phipps Tuckett:- Held, that Tuckett's card, though given to one of the witnesses in the presence of the party charged, could not be given in evidence against him on the trial to prove the name, as its contents were not shewn to have been communicated to him. Reg. v. Douglas, Car. & M. 193Williams. XLVII. VERDICT. Though a verdict is recorded, yet if it appears promptly, that it is not according to the intention of the jury, it may be vacated and set right. Rex v. Parkin, 1 M. C. C. 45. If two are indicted for jointly making a corrupt contract with a third person for the procuring an East India cadetship, one may be convicted, though the other is acquitted. Rex v. Taggart, 1 C. & P. 201-Abbott. A good finding on a bad count |