racter: nesses: finds the witness proves the contrary, give general evidence to discredit his shew that that witness is not to be believed on his oath : Ewer v. own witness by Ambrose, 3 B. & C. 750. Bull. N. P. 297.; for that would be to proof of his chaenable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hands of destroying his credit if he spoke against him. Bull. N. P. 297. But if a witness gives evidence contrary but he may to that which the party calling him expects, the party is at liberty contradict bim to make out his own case by other witnesses; and to shew that the by other witfacts which his own witness has stated contrary to his interest were otherwise: 3 B. & C. 749, 750, 751. Richardson v. Allan, 2 Stark. N.P.C. 334.: (a) for such facts are evidence in the cause, and the other witnesses are not called directly to discredit the first witness, but the impeachment of his credit is incidental, and consequential only. Bull. N. P. 297. It must be observed, however, that it is a necessary consequence of this principle, that the witness can be contradicted only as to facts which are material to the issue. On a collateral fact he cannot be contradicted, not only because such evidence goes to his credit, but because a multiplicity of issues ought not to be introdued. Friedlander v. London Assurance Company, 4 B. & Adol. 197. evidence. In Alexander v. Gibson, 2 Campb. 557., Lord Ellenborough is without repureported to have said, "The party is not to set up so much of a diating the witness's testimony as makes for him, and to reject or disprove whole of his such part as is of a contrary tendency. But if a witness is called and gives evidence against the party calling him, I think he may be contradicted by other witnesses on the same side, and that in this manner his evidence may be entirely repudiated." But the principle here laid down was denied by the court of Common Pleas in Bradley v. Ricardo, 8 Bingh. 57. In that case an action had been brought against the sheriff for a false return of nulla bona to a writ of fi. fa., and at the trial the plaintiff called the sheriff's officer to prove the receipt of the warrant to levy. On cross-examination the witness affirmed that no goods could be found belonging to the party against whom the levy was directed. The plaintiff's counsel was then proceeding to prove his case by other witnesses, and to contradict the sheriff's officer as to his statement that no goods could be found, when the learned judge who presided thought that, if the plaintiff were permitted to contradict a witness placed in the box by himself, as to a particular fact, the whole evidence of the witness must be struck out; upon which the plaintiff was nonsuited. But the court of C. P. set aside the nonsuit, deciding that a party might contradict his own witness as to a particular fact, without repudiating his evidence altogether. If a witness is called to prove a fact, and gives his evidence to the contrary, it is not, it should seem, competent for the party calling him to prove that the witness has previously given a dif (a) Particularly where the witness is forced on a party by law: as for instance, a subscribing witness to a will or deed. Thus in Lowe v. Jolliffe, 1 W. Bl. 365., the subscribing witness to a deed swore to the testator's insanity; yet the plaintiff was allowed to examine other witnesses in support of his case, to prove that the testator was sane. So in Pike v. Badmering, cited in 2 Stra. 1096., where the three subscribing witnesses to a will denied their hands, the plaintiff was permitted to contradict that evidence. Semble. He cannot discredit his own witness by proof of contra dictory statements. Single witness generally sufficient. In case of perjury. High treason. ferent account, for the purpose of shewing that he is unworthy of credit. 3 B. & C. 746.(a) However, in Oldroyd's case, Russ. & Ry. C. C. R. 88., where the counsel for the prosecution at first declined examining the prisoner's mother, but the judge thought it right to have her examined (her name being on the back of the indictment as having been examined before the grand jury), which was accordingly done, and she gave her evidence in favour of the prisoner; the judge ordered her deposition before the coroner to be read, in order to shew its inconsistency with her present testimony. And the twelve judges afterwards were of opinion, that the judge had a right to call for the deposition, in order to impeach the witness's credit; and Lord Ellenborough and Mansfield C.J. thought that the prosecutor had the same right. And in a late case in the Common Pleas at Lancaster, Wright v. Beckett, 1 Mood. & Rob. 414., Lord Denman C. J. approved of this opinion of the two chief justices, and held (Bolland B. dissentiente), after a full argument, that in a civil case where a witness gives evidence destructive of the case which he was called to prove, the party calling him may, in order to neutralize his evidence, shew that he had before the trial given to the attorney an account of the transaction entirely different from that sworn to by him at the trial. I. (5.) How many Witnesses are necessary. In general, the testimony of a single witness is a sufficient legal ground for conviction of a crime or misdemeanor; 4 Black. Com. 357. 2 Hawk. c. 46. § 3.; even though that single witness may have been the accomplice in guilt of the accused person: ante, p. 1025. But there are two exceptions to this rule, viz. the cases of treason and perjury. The evidence of one witness is not sufficient to convict the defendant on an indictment for perjury: as in such case there would be only one oath against another. (See tit. Perjury, Vol. III. p.664.) In high treason (not concerning the current coin, or the king's seals, or sign manual), no one can be convicted, unless by the oaths and testimony of two witnesses, either both to the same overt act, or one of them to one, and the other of them to another overt act of the same treason: unless the party indicted shall willingly, without violence, in open court confess the same. (See tit. Treason, Vol. III. (Criminal Law,) p. 927.) The confession contem plated is a confession in open court, or pleading guilty: any other confession, whether made to persons in authority or not, is evidence (a) Assumpsit for money had and received. Plea, that the promises were made with S. Baker and defendant jointly, and issue thereon. S. Baker was called by defendant to prove the partnership, but he proved the contrary. De fendant then tendered in evidence an answer in chancery of S. Baker's, in which he swore he was defendant's partner. The judge admitted it, (giving the plaintif leave to move,) and left it to the jury to find for the plaintiff or defendant, according as they gave credit to S. Baker's answer in chancery, or to his testimony given in court. The court of K. B. expressed a strong opinion that the answer was not admissible; but they granted a new trial, on the ground that the judge had left the answer to the jury, as it were substantive evidence of the fact of the partnership.-Holroyd J. said, that though the answer certainly was not admis sible to prove generally that the witness was not worthy of credit, it might perhaps, be admissible, if the effect were only to shew that, as to the particular fact sworn to at the trial, the witness was mistaken. 3 B. & C. 750. in the case, and must be proved, like other facts, by two witnesses, and it will have its weight with the jury according to the circumstances, as confessions have in all criminal cases. 1 East, P. C. 131. Foster's Crown Law, 240., &c. By stat. 39 & 40 G. 3. c. 93., "In Two witnesses all cases of high treason, when the overt act alleged in the indict- not necessary in ment is the assassination of the king, or any direct attempt against cases of personal his life, or against his person, the prisoner shall be tried according king. to the same order of trial, and upon the like evidence, as if he stood charged with murder." I. (6.) how the Attendance of Witnesses is to be compelled, remunerated, and protected. attacks on the The compulsory means to bring in witnesses are of two kinds: Two ways of 1.By process of subpœna (A.) issued in the king's name by the jus- causing wittices, or others, where the trial is to be, for disobedience to which nesses to apthe person served with the process is liable to an attachment. pear. Rex v. Ring, 8 T. R. 585. 2. Which is the more ordinary and By recognizmore effectual means (in criminal cases), the justices that take the ance. examination of the person accused, and the information of the witnesses, may at that time, or at any time after and before the trial, bind over (B.) the witnesses to appear at the sessions; and in case of their refusal to be bound over, may commit them for a contempt. 2 Hale, 282. Bennet and Wife v. Watson, 3 M. & S. 1. (See this subject fully considered, tit. Examination, post, Vol. III. (Criminal Law,) p. 206, 207.) But justices have no power to issue a warrant to compel the attendance of a witness refusing to come and appear before them to be examined preparatory to trial, however material the facts may be which such witnesses could prove. Per Garrow C. J. and Burton J., Chester Spring ass. 1816. MS. Formerly where a person had entered into a recognizance to prosecute and give evidence, and did not appear, such recognizance was as a matter of course estreated. But now in such cases, by stat. 7 G. 4. c. 64. § 31., such recognizances are not to be estreated without the written order of the judge, &c. who shall have attended the court, who shall make an order touching the estreating or putting in process of such recognizance. (See this section stated verbatim, post, Vol. V. tit. Recognizance, p. 645.) 2d. The attendance of witnesses, if they have not entered into By subpoena. recognizances, may be compelled by process of subpoena, which may either be issued from the crown office, Rex v. Ring, 8 T. R. 585., or may be made out by the clerk of the peace of the sessions, or the clerk of assize. (a) And by stat. 45 G. 3. c. 92. §3., the 45 G. 3. c. 92. service of a subpoena on a witness in any one of the parts of the U. K., for his appearance on a criminal prosecution in any other of the parts of the same, shall be as effectual as if it had been in that part where he is required to appear. (See this statute fully stated, post, Vol. III. (Criminal Law,) p. 956.) (a) It is more prudent to sue it out of the crown office, if an application for an attachment for non-attendance is likely to become necessary. (See post, p. 1075.) How served. Subpoena duces tecum. Habeas corpus ad testifican dum. The prosecutor ought not to include more than four persons in one subpœna. Doe v. Andrews, Cowp. 845. Tidd, 855. And as soon as the writ is obtained, a copy should be made out for each witness, and served on him personally. In order to save expense, it is settled that leaving a ticket, containing the substance of the writ, will be as effectual as the writ itself; but the writ ought to be shewn. The writ or ticket should be served personally on the witness: Smelt v. Witmill, 2 Stra. 504.; and in reasonable time before the day of trial, that he may suffer the less inconve nience from his attendance on the court. Hammond v. Stewart, 1 Stra. 509. In Rex v. Sadler, 4 C. & P. 218., it was held by Littledale J. that, in a criminal case, a person who is present in court, when called as a witness, is bound to be sworn and give his evidence though he has not been subpoenaed: and that an indictment for stopping up a way is a criminal case for this purpose. If a witness have in his possession any deeds or writings, which it is deemed necessary to produce at the trial, there should be a special clause inserted in the subpoena, called a duces tecum, commanding the witness to bring them with him. The writ of subpœna duces tecum is the regular and established process of the court; and though it was formerly doubted, yet it is now settled, that this process is of compulsory obligation on the witness, to produce the deeds or writing required of him, which he has in his posession, and which he has no lawful or reasonable excuse for withholding; of the validity of which excuse, the court, and not the witness, is to judge. Amey v. Long, 9 East, 473. And a person in possession of any paper, who is served with a subpoena duces tecum, is bound to produce it, whether the paper belong him or not, or though there be a regular way prescribed by law for obtaining it. Corsen v. Dubois, Holt N. P. C. 239. The court, however, in all such cases, will exercise their discretion in deciding what papers shall be produced, and under what qualifications as respects the interest of the witness. (a) to When a witness is in custody, or on board a ship under the command of an officer who refuses to permit his attendance, the subpœna is ineffectual, and a habeas corpus ad testificandum is necessary to bring him up; for which an application may be made to any one of the judges or barons of the courts of king's bench, common pleas, and exchequer, in England or Ireland, who have discretionary power to grant it to any part of the U. K., to bring a witness before any court of record, to be examined before such courts, or any grand, petit, or other jury, in any cause, or matter, civil or crimi nal. (Stats. 43 G. 3. c. 40., 44 G. 3. c. 102.) The application for this writ must be made upon an affidavit sworn to by the party ap plying, stating that the party is a material witness, and willing to attend; and if he be at a distance, it should be shewn how he is material. Tidd. Pract. 858. (b) The writ being sued out, should (a) It will be observed, that there is a distinction between the obligation of a witness to answer, though it may subject him to a civil responsibility, and the obligation to produce writings under a subpoena. (See antè, p. 1052.) If a subpœna duces tecum be served, the party must bring his deeds in obedience to the subpœna; but if he states them to be his title-deeds, no judge will ever compel him to produce them. Pickering v. Noyes, 1 B. & C. 263. (b) It is said in 1 Chitt. C. L. 610., that the affidavit of readiness to attend only applies when the party is on board ship, and not then in all cases. beleft with the sheriff, or other officer, in whose custody the wit- At common law, a defendant in capital cases had no means of Subpœna for compelling the attendance of witnesses without the special order of prisoner. the court; 4 Black. Comm. 359.(a); although in misdemeanors the defendant has always been allowed to take out subpoenas. 2 Hawk. c. 46. § 170. But the stat. 7 W. 3. c. 3. § 7. provided, that in cases of high treason, where corruption of blood might be worked, the persons indicted shall have the like process of the court where they shall be tried, to compel their witnesses to appear for them, as is usually granted to compel witnesses to appear against them and since the stat. 1 Ann. stat. 2. c. 9. § 3., by which it is provided that witnesses for the prisoner, in cases of treason or felony, shall be sworn in the same manner as witnesses for the crown, and be subject to the same punishment for perjury, the process by subpoena is allowed to defendants in cases of felony as well as in other instances. 2 Hawk. P. C. c. 46. § 172. If a party, having been served with a subpoena, neglect to appear Remedy against in obedience to it, an application may be made to the court of K. B., person neglectif the subpoena issued from the crown office, for an attachment ing to appear on subpæna. against him; Rex v. Ring, 8 T. R. 585. And a witness who refuses, after being subpoenaed, to attend to give evidence for a defendant, is liable to an attachment as in the case of being subpoenaed by a prosecutor; 1 Stark. Ev. 119. And where the process is served in one part of the U. K. for the appearance of the witness in another of the parts, the court issuing the same may, upon proof to their satisfaction of the due service of the subpoena, transmit a certiorari of the default of the witness, under the seal of the court, or under the hand of one of the justices thereof, to the court of K. B. if the service were in England, to the court of justiciary if in Scotland, and to the court of K. B. in Ireland if in Ireland; which courts are empowered to punish the witness in the same way as if he had disobeyed a subpoena issued out of those courts, provided the expenses have been tendered. 45 G. 3. c. 92. § 3, 4. (See post, Vol. III. p. 956.) It has lately been decided that where a person has been served with a subpœna, not issued from the crown office, but under the seal of the custos rotulorum, to appear and give evidence at the quarter sessions, and makes default, the court of K. B. cannot attach him for contempt, either by its general authority, or by virtue of the above statute. Rex v. Brownell, I Adol. & Ell. 598. The parts signified in the statute are England, Scotland, and Ireland. Ibid. It is said to be doubtful whether the justices at sessions, &c. have authority to issue an attachment, and that the only mode of proceeding against a witness in such a case is by indictment. Archb. Cr. L. 108. (a) If they had attended they could not have been sworn before the stat. 1 Ann. st. 2. c. 9. § 3. |