Although the 7 Geo. 4, c. 64, s. 4, does not require the depositions of witnesses taken before a coroner to be signed, it is desirable that they should not only be so signed, but read over to the witnesses, before signature. See per Gurney, B., R. v. Plummer, 1 Car. & K. 608, 47 E. C. L. In Reg. v. Biggadike, ante, p. 61, Byles, J., admitted a statement made by the prisoner on oath, as a witness before the coroner, although it was not signed. The coroner was called and took the deposition down at the time. R. v. Wiggins, 10 Cox, C. C. 562.

The judges have power, by their general authority as a court of justice, to order a copy of depositions taken before a coroner to be given to a prisoner indicted for the murder of the party concerning whose death the inquisition took place, although the case is not one in which the coroner could have been compelled to return them under the 7 Geo. 4, c. 64, s. 4. R. v. Greenacre, 8 C. & P. 32, 34 E. C. L. It seems that depositions, taken before a coroner, of a witness too ill to attend, may be sent before the grand jury. R. v. Mooney, 9 Cox, C. C. 411.'1

As to giving a witness's deposition in evidence against himself, if he is charged with a crime upon the same facts, see supra, pp. 60, 61.

Depositions in India by consent, etc. By the 13 Geo. 3, c. 63, s. 40, in cases of indictments or informations in the King's Bench, for misdemeanors and offences committed in India, that court may award a mandamus to the judges of the supreme court, etc., who are to hold a court for the examination of witnesses, and receiving other proofs concerning the matters in such indictment or information; and the examination publicly taken in court shall be reduced to writing, and shall be returned to the Court of King's Bench, in the manner directed by the act, and shall be there allowed, and read, and deemed as good evidence, as if the witness had been present. The provisions of this *80] section are extended by 6 & 7 Vict. c. 98, s. 4, to *all indictments or informations in the Queen's Bench for misdemeanors or offences committed against the acts passed for the suppression of the slave trade in any places out of the United Kingdom, and within any British colony, settlement, plantation, or territory.

And by 33 & 34 Vict. c. 52, s. 15, foreign warrants of arrest and copies of depositions shall be deemed to be duly authenticated, if authenticated in the manner following, that is to say, if the warrant of arrest purports to be signed by a judge, magistrate, or officer of the foreign state, in which the same shall have been issued, and if the copies of the depositions purport to be certified under the hand of a judge, magistrate, or officer to be true copies of the original depositions; and if the certificate or document of conviction purports to be certified by a judge, magistrate, or officer where the conviction took

1 Such depositions are admissible on behalf of the accused. State v. McNeil, 33 La. An. 1332. But see McClain v. Commonwealth, 99 Pa. St. 86. Evidence taken before a coroner, when no crime is known to have been committed, and no person has been arrested, even if amounting to a confession, is admissible. People v, Mondon, 4 N. Y. Crim. Rep. 552.

place; and if in every case they are authenticated by the oath of some witness or by being sealed with the official seal of the minister of justice or some other minister of state; and all courts of justice and magistrates in her Majesty's dominions shall take judicial notice of such official seal, and shall admit the documents so authenticated by it to be received in evidence without further proof.

Before this statute it was necessary to verify the correctness of the copies of the depositions by the oath of the witness who produced them. 1 Chit. Stat. 2nd series, 123.

Depositions with regard to prosecutions for offences committed abroad by persons employed in the public service, are regulated by statute 42 Geo. 3, c. 85.

Depositions are sometimes taken by consent in prosecutions for misdemeanors when the witness is about to leave the country. R. v. Morphew, 2 M. & S. 602; Anon., 2 Chitty, 199. But if the trial comes on before the departure of the witness, or after his return, the depositions cannot be read. Tidd. 362; 2 Phill. Ev. 123, 10th ed. See R. v. Douglas, 13 Q. B. 42, 66 E. C. L.

Depositions under Merchant Shipping Act. By the 17 & 18 Vict. c. 104, s. 270, upon proof that a witness cannot be found in the United Kingdom, a deposition made out of the United Kingdom by him on oath in relation to the same subject-matter before any justice, etc., in presence of the accused, is admissible. The deposition must be authenticated by the signature of the judge, which need not be proved. The judge must certify that the accused was present. Where an officer of the Board of Trade after the examination of the official records stated that the ship of which the witnesses were officers had never been in this country, it was held sufficient evidence of their not being in the United Kingdom. R. v. Conning, 11 Cox, C. C. 134; R. v. Anderson, 11 Cox, C. C. 154; and see R. v. Stewart, 13 Cox, C. C. 296.

Evidence confined to the issue.

the mode of committing the offence

No objection that other offences are disclosed

What evidence is admissible as referable to the issue
Evidence to explain motives and intention

91

92

92

92

94

94

95

98

99

102

of witnesses

103

NATURE OF THE ISSUE RAISED IN CRIMINAL CASES.

THE Condition in which criminal pleadings now stand is somewhat peculiar. Indeed, so far as the prisoner is concerned, the pleadings are almost entirely useless, neither serving to inform him what the crime is for which he is about to be tried, nor as a record of the past, in case he should ever be put to the plea of autrefois acquit or convict. It is not the province of this work to discuss questions of criminal pleading, but to point out what evidence is necessary and what evidence is admissible upon a criminal indictment traversed by a plea of not guilty. And in order to do this it is essential first to discover what is the issue raised in such a case.1

1 The rule confining the evidence strictly to the point in issue is now rigidly applied in criminal cases. Dyson v. State, 26 Miss. 362. All facts upon which any reasonable presumption or inference can be founded, as to the truth or falsity of the issue, are admissible in evidence. Richardson v. Royalton & Woodstock Turnpike Co., 6 Vt. 496; Davis v. Calvert, 5 G. & J. 269. A. and B., when riding in a gig, were robbed at the same time; A. of his money and B. of his watch, and violence used towards both. There was an indictment for robbing A. and another for robbing B. Littledale, J., held, on the trial of the first indictment, that evidence might be given of the loss of B.'s watch, and that it was found on one of the prisoners, but that evidence could not be given of any violence offered to B. by the robbers. Rooney's Case, 7 C. & P. 517 a, 32 E. C. L. Evidence of a distinct substantive offence cannot be admitted in support of another offence; a fortiori cannot evidence of an intention to commit another offence be received. Kinchelow v. State. 5 Humph. 9. Although evidence

According to Lord Hale (2 Hale, P. C. 169), an indictment should be "a plain, brief, and certain narrative of an offence committed by any person, and of those necessary circumstances that concur to ascertain the fact and its nature." Every one, however, knows the narrow rules of construction, which rendered the adoption of this liberal canon, even in Lord Hale's time, impossible (2 Hafe, P. C. *193; rules [*82 which, by making it extremely difficult to draw indictments correctly, rendered the criminal law to a great extent nugatory; but such appeared to be the cruel severity of those laws, especially when contrasted with the mild manner in which, for the most part, criminal justice has in this country been administered, that men were only too glad, without much regard either to reason or logic, thus to nullify their effect, and in favorem vitæ, as it was called, to adopt the strangest rules of construing criminal indictments. But when the severity of the criminal code was relaxed, and men's eyes were no longer blinded by feelings of humanity, they saw at once the glaring nature of these fallacies, and they commenced a removal of them, at first warily, but eventually by a statute which, though of great practical value, yet by its somewhat vague and confused provisions, leaves the law, to say the least, in a very unscientific state.1

Statutes relating to form of indictment. The statute alluded to is the 14 & 15 Vict. c. 100, which, by sect. 9, provides that "if upon of one offence is not admissible for the purpose of proving the charge of another, yet it may be so connected with the proof of a relevant and material fact, that its introduction cannot be avoided. Commonwealth v. Call, 21 Pick. 515. Where a person was indicted as accessory before the fact to the crime of murder, and it appeared that the inducement to the murder was the exertions of the deceased to ascertain the perpetrators of a former murder, it was held competent to show the guilt of the prisoner as to the former murder, for the purpose of showing a motive for his conduct respecting the murder in question. Dunn v. State, 2 Pike, 229. The necessity for enforcing the rule that no evidence can be admissible which does not tend to prove or disprove the issue joined, is much stronger in criminal than in civil cases. Hudson v. State, 3 Cold. 355; Wiley v. State, Id. 362; Lightfoot v. People, 16 Mich. 507. [But see Greenleaf on Evid., 13th edition, 65 and note; Brown v. Schock, 77 Pa. St. 471.] Affirmative testimony is better than negative. Dilk v. State, 3 Head, 79. Evidence of transactions occurring subsequent to the finding of an indictment is prima facie irrelevant, and is only admissible in connection with evidence of previous transactions. Smitheman v. State, 40 Ala, 355. S.

Where a civil action is brought to recover damages for an act which is indictable as a crime, a preponderance of evidence only is necessary to a recovery. (Overruling Barton v. Thompson, 46 Ia. 30.) Welch v. Jugenheimer, 56 Ia. 11; Wood v. Porter, Id. 161; Lewis v. Garretson, Id. 278; State v. McGlothlen, Id. 544.

A failure to prove an unnecessary averment cannot vitiate an indictment good without the averment. United States v. Vickery, 1 H. & J. 427. [So in an indictment for perjury, a slight variance between the complaint described and that offered in proof, which does not prejudice the defendant, is not ground to set aside the verdict. Commonwealth v. Soper, 133 Mass. 393.] An indictment will not be held defective or insufficient if enough remains to constitute it good after striking out the objectionable parts. State v. Wall, 39 Mo. 532. Facts not vital to the accusation and constituting merely matter of description, may be stated in an indictment as unknown to the grand jury, if such is the case. People v. Bogart, 35 Cal. 245. In murder "by some means, instruments and weapons to the grand jury unknown," held sufficient. People r. Cronia, 34 Cal. 191. S.

An allegation that one "did carry about his person a pistol," is supported by proof that he carried a pistol in his hand. Woodward v. State, 5 Tex. App. 296.

the trial of any person charged with any felony or misdemeanor it shall appear to the jury upon the evidence, that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the said indictment; and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried."

By the 24 & 25 Vict. c. 96, s. 41, "if, upon the trial of any person upon any indictment for robbery, it shall appear to the jury upon the evidence that the defendant did not commit the crime of robbery, but that he did commit an assault with intent to rob, the defendant shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict, that the defendant is guilty of an assault with intent to rob, and thereupon such defendant shall be liable to be punished in the same manner as if had been convicted upon an indictment for feloniously assaulting with intent to rob; and no person so tried as is herein lastly mentioned, shall be liable to be afterwards prosecuted for an assault with intent to commit the robbery for which he was so tried.”

Sect. 12 of the 14 & 15 Vict. c. 100, enacts that, "if upon the trial of any person for any misdemeanor it shall appear that the facts given in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for felony on the same facts, unless the court, before which such trial may be had, shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for felony; in which case such person may be dealt with in all respects as if had not been put upon his trial for such misdemeanor."

By the 24 & 25 Vict. c. 96, s. 72, upon the trial of any person *indicted for embezzlement where the facts amount to larceny,

*83] the jury shall be at liberty to return as their verdict, that such person is guilty of larceny, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for larceny, and vice versa; and no person so tried for embezzlement or larceny shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts. See the section set out in full, post, tit. Embezzlement.

By the 24 & 25 Vict. c. 96, s. 94, "If upon the trial of any two or more persons indicted for jointly receiving any property it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict