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in opinion that the depositions of a girl deceased, on whose person the crime had been committed, taken on oath by the committing magistrate, had been properly admitted in evidence at the trial, though the depositions were not signed by the deceased. (1)
The information of witnesses, taken before justices of the peace, cannot be given in evidence on an indictment for a misdemeanor, (as, on an information for publishing a libel,) or in civil actions, or on an appeal for murder (2). Nor can a conviction for petty treason be grounded on such evidence (3); for the statute 1 Ed. 6. c. 12. s. 22. enacts, "that no person shall be indicted, arraigned, condemned, or convicted, for any offence of treason or petty treason, unless he be accused by two sufficient and lawful witnesses, or shall willingly without violence confess the same;" and this is confirmed by statute 5 & 6 Ed. 6. c. 11. s. 12., which enacts, "that no person shall be indicted, arraigned, condemned, convicted, or attainted, for any of the treasons specified in the act, or for any other treasons, unless the offender be accused by two lawful accusers; which said accusers at the time of the arraignment of the party accused shall be brought in person before the party so accused, and avow and maintain what they have to say against the said party, to prove him guilty of the treasons or offences contained in the bill of indictment laid against the party arraigned; unless the said party arraigned shall willingly without violence confess the same." However, as a prisoner may be convicted of murder, on an indictment for petty treason, the depositions are admissible in evidence to support a conviction of murder, though not sufficient to support a conviction of petty treason. (4)
The words of the statute 1 & 2 Ph. & M. c. 13. s. 4., which are also referred to and adopted by stat. 2 & 3 lJh. &
(1) Case of Flemming and Wind- (3) Foster Disc. 337. ham, 1 Leach Cr. C. 996. (4) Radbourne's case, 2 Leach Cr. C.
(1) R. v. Payne, 1 Ld. Ray. 719. 512. Swan's case, Foster Disc. 106.
M. C. IO., M. c. 10., are, "that the justices shall certify the examination taken before them at the next general gaol delivery within the limits of their commission." It often happens that the felon is taken and examined by a magistrate in a county, where the offence was not committed; in such a case, the examinations and informations are to be transmitted into the county, where the felon is indicted, and may there be read in evidence against him, though the magistrate had not original cognizance of the offence. (1)
As informations, when judicially and regularly taken, are evidence against a prisoner, if the informant dies before the trial; so, on the other hand, where the informant himself gives evidence, the informations may be used, on the part of the prisoner, to contradict his testimony. One of the objects of the legislature in passing the statutes, was to enable the judge and jury, before whom the prisoner is tried, to see whether the witnesses at the trial are consistent with the account given by them before the committing magistrate (2). Thus, it was admitted in Lord Stafford's case (3), that the depositions of a witness, taken before a justice of peace, might be read, at the desire of the prisoner, in order to take off the credit of the witness, by shewing a variance between the depositions and the evidence given in court viva voce. (3)
The statute 1 &2 Ph. &M. c. 13. s. 5. enacts, "that Depositions every coroner upon an inquisition before him found, kroner, whereby any person shall be indicted for murder or manslaughter, or as accessary before the murder, shall put in writing the effect of the evidence given to the jury before him, being material; and shall certify the same evidence, together with the inquisition or indictment before him taken and found, at or before the time of the trial thereof to be had."
(1) Dak. Just.c.m. p.369. aHaL (3) 381.Tr. p.131. Hawk. Pl . C. p. c. 185. b. a. c. 46.1. u.
(i) Se« the judgment in Lambe'i cate, 2 Leach Cr. C. 633.
On this statute, it has been resolved unanimously by all the judges, that in case any of the witnesses, who have been examined before the coroner, are dead, or unable to travel, or kept out of the way by the means and contrivance of the prisoner, their depositions may be read on the trial of the prisoner, the coroner first proving, that they are the same which he took upon oath, without any addition or alteration (1). And proof, that the witness has been inquired after and is not to be found, has bsen thought sufficient to authorize the reading of the depositions (2). The statute requires the coroner " to put in writing the effect of the evidence given to the jury before him, being material;" the true meaning of which appears to be, that he should at least take down the plain and obvious meaning of the words spoken by the witnesses, and not merely to state what, in his judgment, was the result of the evidence.
It does not appear from the report of either of the cases above cited, whether the depositions were taken by the coroner in the presence of the prisoner. But it seems to be the prevailing opinion, that they are admissible, though the prisoner may have been absent at the time of taking the inquisition. A book of authority (3), after stating the general rule, that depositions are not evidence, where there cannot be a cross-examination, adds, by way of exception, "yet, if the witnesses examined on a coroner's inquest be dead or beyond sea, their depositions may be read; for the coroner is an officer appointed on behalf of the public, to make inquiry about the matters within his jurisdiction." And in the case of the King against the Inhabitants of Eriswcll(4), (where Mr. Just. Buller, in support of his opinion on the case then before the court, stated, that depositions before a coroner had been long settled to be good evidence, though the person accused be not present when they are
(1) Lord Morley's caie, Kel. SS. cor. Holt C. J., Atkins J, and Nevil J, Thatcher's case, a Jon.53. Bromwich's 4 St.Tr. 496. Contra, 4th res. in Ld. case, i I>v. 180. Gilb.Ev. 124. See Morley's case, Kel.55. ante, p. 277. (3) Bull. N. P. 242.
(1) Adm. per Cur. in Harrison's case, (4) 3 T. R.713.
taken, taken, nor ever heard of them till the moment, when they are produced against him,) Lord Kenyon, who differed from Mr. Justice Buller on the principal question, said (1), that the case, alluded to, was an exception founded on the statute of Philip and Mary. Besides, he added, the examination before the coroner is an inquest of office; it is a transaction of notoriety, to which every person has a right of access; and writs of ad quod damnum have been frequently set aside, for want of this notoriety in the execution of them by the sheriff To this effect also Lord Hale lays it down (2), that the coroner's inquest must hear evidence on oath as well for the party accused as for the king, if it be offered to them; because the proceeding is not so much an accusation on an indictment, as an inquisition of office to inquire truly, how the party came to his death; and for an omission in this respect, an inquisition of felo de se has been quashed.
An inquisition of felo de se, taken before the coroner Inquisition, super visum corporis, is considered by Lord Coke (3) to be conclusive evidence of the fact, against the executors or administrators of the deceased. But Lord Hale in his Pleas of the Crown (4) is of a different opinion, conceiving it unreasonable, that they should be concluded, and lose the goods of the deceased without an answer, by an inquisition, which may be taken by the coroner behind their backs. And it is now settled that such an inquisition may be removed into the King's Bench, and traversed by the executors and administrators of the deceased. (5)
If it be found by the coroner's inquisition, in case of the death of a person who is not felo de se, that the person, who committed the offence, fled for it, the authorities hold this finding to be conclusive and not traversable; yet, upon
(1) 3 T.R. yit. (5) See I Saund.362. note I. by the
(a) 1 PI.Cr. 41 5. i PI. Cr. 60. Sco- Editor, who hat there collected the rey's case, 1 Leach Cr. C.50. cases on this subject. As to the duty
(3) 3 Inst. 55. of the coroner in taking an inqueit, see
(4) 1 PI. Cr. 416. 1 East, P. C. 389. stat. 1 H. i. c. 8.
principle, it should seem as if the one case were as much traversable as the other. (1)
There are various other kinds of inquisition of office, which, if regularly taken, and under a competent authority, will be admitted by courts of law as evidence of the facts there found. Some inquisitions are taken on an inquiry made by the sheriff, or coroner, or escheater, by virtue of their office, or under a writ directed to them for that purpose: others are taken by commissioners, specially appointed to examine witnesses on oath, and inquire into the several matters specified.
An inquisition of lunacy is evidence on the trial of an indictment, to shew that the prisoner was insane, when he committed the offence (2). Such inquisitions are evidence even against third persons, who were strangers to the proceeding. Thus, in a case, where an inquisition of lunacy was offered as evidence to affect the rights of third persons, and objected against as res inter alios acta, Lord Hardwicke overruled the objection, and said that inquisitions of lunacy, and likewise other inquisitions, as post mortem, &c., are always admitted to be read, but not conclusive (3). So an inquisition taken by virtue of a commission which issued in the reign of Queen Elizabeth, under the seal of the court of Exchequer, to commissioners to inquire, whether a prior was seised of certain lands as parcel of a manor, or whether the crown was seised of them after the dissolution of the priory, was adjudged to be good evidence of those facts (4). And an inquisition, taken under an order of the House of Commons, is evidence respecting the fees of certain offices. (5)
(1) See n. (5), ante, 181, and Hawk. Faultier v. Silk and Another, 3 Camffc.
b. 2. c. 9. s. 54. Ii6. See Jones v.White,ante, p.139.
(a) R. v. Bowler, O. B. June 1812, (4) Tooker v.D.of Beaufort, I Burr,
before Le Mane J. and the present 146.
Ch. J. of the Common Pleas, MS. (5) Green v. Hewett, Peake N.P.C.
(3) Serceson v. Sealey, a Atk. 411. 184.