previous to the final examination is evidence, which must be proved in the usual way by a person who heard it, or by a memorandum acknowledged by the prisoner. As to the statement made at the final examination, when the prisoner is called upon, if it is returned in a form which is available under the statute, that return is the only evidence of it, exclusive of all parol testimony. If from some defect or informality this return is not available, then what is said by the prisoner on this occasion may be proved in the usual way. There is, perhaps, no direct authority for the last proposition, but it seems to be an inference from the two most recent cases. A confession made under circumstances which do not bring it within the statute stands as a confession at common law. See the concluding words of s. 18.

It was remarked by Platt, B., in R. v. Weller, 2 C. & K. 223, 61 E. C. L., that any observation made by the prisoner in the course of the examination which was material, ought to be taken down. This is useful, because the memorandum, though not evidence in itself, may be used by the witness to refresh his memory at the trial. R. v. Watson, 3 C. & K. 111.

It seems to be the duty of the magistrate, who presides at the examination, to advise the prisoner not to make any statement before the evidence is concluded and the caution is administered. R. v. Watson, ubi supra.

The prisoner is not to be precluded from showing, if he can, that omissions have been made to his prejudice, for the examination has been used against him as an admission, and admissions must be taken as they were made, the whole together, not in pieces, nor with partial omissions. Even the prisoner's signature ought not to stop him from proving, if he can, such omissions. 2 Phill. Ev. 118, 10th ed.

Mode of taking examinations-signature. The examination of a prisoner, when reduced into writing, ought to be read over to him, and tendered to him for his signature. But whether signed or not by him, it is still evidence against him, nothing being said in s. 18 of the 11 & 12 Vict. c. 42, about signature by the prisoner, and the *64] *statement being expressly made evidence without further proof, if read over to the prisoner and signed by the magistrate. In the schedule (N) it is said, "Get him (the prisoner) to sign it, if he will.” At common law, as has already been said, if a statement were made by a prisoner and reduced into writing, the memorandum could only be evidence if signed by the prisoner, or its truth acknowledged by parol: nor do the statutes previous to the last seem to contain anything which dispenses with the proof, which would be necessary in ordinary cases, that the truth of the written memorandum was thus recognized by the prisoner. All the cases before the statute seem 1 Pennsylvania v. Stoops, Addis. 383; People v. Johnson, 1 Wheeler's C. C. 150; Commonwealth v. Boyer, 2 Wheeler's C. C. 150; People v. Robinson, 1 Wheeler's C. C. 240. S.

1

The testimony of the defendant given at a preliminary examination, and reduced to writing, and signed by him, may be offered against him. State v. Miller, 35 Kan. 328.

reconcilable on this principle. See R. v. Lambe, 2 Leach, 552; R. v. Thomas, 2 Leach, 637; R. v. Bennet, 2 Leach, 553 (n); R. v. Telicote, 2 Stark, N. P. 483, 3 E. C. L.; and see R. v. Jones, 2 Russ. 658; R. v. Sykes, Shrewsbury Spr. Ass. 1830, 3 Russ. on Cr., by Greaves, 456, 4th ed.; R. v. Wilson, Shrewsbury Spr. Ass. 1830, Id. Where, therefore, before the 11 & 12 Vict. c. 42, the prisoner refused to sign the memorandum of his statement, or to acknowledge its truth, it was necessary to prove the statement by a witness who heard it. See 2 Phili. Ev. 116, 10th ed.

Examinations informal-used to refresh the memory of witness. It has already appeared that if the examination of a prisoner has been taken down in writing, but not in such a manner as that the writing itself is admissible under the statute, parol evidence of what the prisoner said is admissible; and in such case the writing may be referred to by the witness who took down the examination, in order to refresh his memory. Where a person had been examined before the lords of the council, and a witness took minutes of his examination, which were neither read over to him after they were taken, nor signed by him, it was held that although they could not be admitted in evidence as a judicial examination, yet the witness might be allowed to refresh his memory with them, and having looked at them, to state what he believed was the substance of what the prisoner confessed in the course of his examination. R. v. Layer, 16 How. St. Tr. 215. So where an examination taken at several times, was reduced into writing by the magistrate, and on its being completed, was read over to the prisoner, but he declined to sign it, acknowledging at the same time that it contained what he had stated, although he afterwards said that there were many inaccuracies in it, it was held that this might be used as a memorandum to refresh the memory of the magistrate, who gave parol evidence of the prisoner's statement. R. v. Jones, 2 Russ. 658 (n). So, in R. v. Telicote, supra, supposing the written document was inadmissible, yet the clerk of the magistrate, who was called as a witness, might have proved what he heard the prisoner say on his examination, and have refreshed his memory by means of the examination which he had written down at the time. 2 Russ. 658; see 4 C. & P. 550 (n), 19 E. C. L. And see R. v. Watson, 3 C. & K. 111. So where, on a charge of felony, the examination of the prisoner was reduced into writing by the magistrates' clerk, but nothing appeared on the face of the paper to show that it was an examination taken on a charge of any felony, or that the magistrates who signed it were then acting as magistrates; Patteson, J., permitted the clerk to the magistrates to be called, and to refresh his memory from this paper. R. v. Tarrant, 6 C. & P. 182, 25 E. C. L.; *and see R. v. Pressley, Id. 183, 25 E. C. L.; R. v. Bell, 5 C. & P. 162, 24 E. C. L.; and R. v. Watson, 3 C. & K. 111. [*65

Mode of proof. If the examination has been taken in conformity with the provision of the statute, it proves itself. But should there

be alterations or erasures, the clerk to the magistrates, or some person who was present at the time, should be called to explain them. Where, upon an indictment for murder, it was proposed to prove the prisoner's examination before the coroner by evidence of the handwriting of the latter, and by calling a person who was present at the examination, it appearing that there were certain interlineations in the examination, Lord Lyndhurst said, that he thought the clerk who had taken down the examination ought to be called, and the evidence was withdrawn. R. v. Brogan, Lanc. Sum. Ass. 1834, MS.

Evidence against the prisoner only. In R. v. Haines, 1 F. & F. 86, Crowder, J., refused to allow the prisoner's statement which had not been put in evidence by the counsel for the prosecution to be put in on behalf of the prisoner. And it is evidence only against the prisoner who makes it. If two prisoners be taken before the magistrate on a charge, a statement made by the first prisoner cannot be given in evidence against a second prisoner, because when before the magistrate the second prisoner is only called upon to answer, if he pleases, the depositions which have been given on oath against him, and not what the other prisoner may have said on his examination. R. v. Swinnerton, C. & M. 593, 41 E. C. L., per Patteson, J. As to the examination being put in by the direction of the court, see post, tit. Practice.

Depositions-when admissible. The question of the admissibility of evidence in criminal cases of what are usually called depositions is one by no means free from difficulty. It is not within the scope of this work to enter at length into the discussion of this question, but it is necessary to point out the rules which have been generally acknowledged, the difficulties which have arisen, and the opinions which have been expressed in reference to this subject.'

It is a well-known rule of evidence, and one which is treated as generally applicable both to civil and criminal cases, that what a witness has once stated on oath in a judicial proceeding may, if that witness cannot possibly be produced again, be given in evidence, provided the inquiry be substantially the same on both occasions, and between the same parties. This applies not only to evidence taken at different stages of the same inquiry, but to successive inquiries into the same matter; as, for instance, to a new trial granted in a case of misdemeanor.

It is also a well-known rule of evidence that upon any point material to the issue, a witness may be contradicted or discredited by showing that he has on a previous occasion made statements at variance with that made by him at the trial. This includes all previous statements of the witness, whether on oath or not, and whether in a judicial proceeding or not. And as to this rule, see now 28 & 29 Vict. c. 18, ss. 4, 5, post, Examination of Witnesses.

Now it is obvious that a totally different class of considerations will apply to the proof of the previous statements according as they are used as evidence in chief, or to discredit the witness only. It is

There is no authority at common law for taking depositions in criminal cases out of court without the consent of the defendant. People v. Restell, 3 Hill, 289. Depositions in perpetual remembrance, taken before an indictment is found, are not admissible on the trial of the indictment. Commonwealth v. Ricketson, 5 Metc. 412. See Johnson v. State, 27 Tex. 758; Richardson v. People, 31 Ill. 170. S.

*67] *absolutely necessary, therefore, in considering how such previous statements are to be proved, never to lose sight of the purpose for which they are being used; and it is from not doing so that much of the confusion on this point of the law of evidence has arisen.

In criminal cases it is generally with respect to the preliminary inquiry before magistrates on charges of felony and misdemeanor that this question assumes its greatest importance; when, therefore, in what follows, we speak of depositions, it will be understood that depositions so taken are alone referred to.

Depositions when used to contradict a witness-how proved. The following rules relating to this question were laid down by the judges after the passing of the Prisoner's Counsel Act, 6 & 7 Will. 4, c. 114 (see 7 C. & P. 676, 32 E. C. L.).

1. That where a witness for the crown has made a deposition before a magistrate, he cannot, upon his cross-examination by the prisoner's counsel, be asked whether he did or did not in his deposition make such or such statement, until the deposition itself has been read, in order to manifest whether such statement is or is not contained therein, and that such deposition must be read as part of the evidence of the cross-examining counsel.

2. That after such deposition has been read, the prisoner's counsel may proceed in his cross-examination of the witness as to any supposed contradiction or variance between the testimony of the witness in court and his former deposition; after which the counsel for the prosecution may re-examine, and after the prisoner's counsel has addressed the jury, will be entitled to reply. And in case the counsel for the prisoner comments upon any supposed variances or contradiction without having read the deposition, the court may direct it to be read, and the counsel for the prosecution will be entitled to reply upon it.

3. That the witness cannot in cross-examination be compelled to answer whether he did or did not make such and such a statement before the magistrate until after his deposition has been read, and it appears that it contains no mention of such a statement. In that case the counsel for the prisoner may proceed with his cross-examination; and if the witness admits such statements to have been made, he may comment upon such admission or upon the effect of it upon the other part of his testimony; or, if the witness denies that he made such a statement, the counsel for the prisoner may then, if such statement be material to the matter in issue, call witnesses to prove that he made such statement. But in either event the reading of the deposition is the prisoner's evidence, and the counsel for the prosecution will be entitled to reply.

The effect of these rules is that the depositions returned by the magistrates before whom the preliminary inquiry took place must, if anything said upon that inquiry is to be used for the purpose of discrediting a witness, be first put in evidence; but these rules expressly recognize that what appears upon the depositions is not in any way conclusive as to what passed on that occasion, which, after the deposi