Attorney-General v. Le Merchant, 2 Term Rep. 201. is now settled, that there is no distinction, in this respect, between civil and criminal cases, and that a prosecutor may, without having given notice to produce the original writing, give attested copies, or, if no copies are taken, parol evidence of it in evidence; and on this ground parol testimony of a bill of exchange has been admitted on an indictment for forging it, on its being proved to (a) Aicle's case, be in the prisoner's possession (a). So also an attested copy of Cases C. L. 241. a letter directed to a prisoner, containing a challenge, may be given in evidence on a trial for murder, if sufficient proof be laid before (b) Gordon's case, Cases C. the court to raise a presumption that the original reached his hands (b). L. 245. notis. 572. (c) 3 Salk. 154. 247. (i) 1 Term Rep. 466. (k) 2 Str. 1073. + Sect. 65. It is also a general rule, that copies are admissable evidence where the originals are of a public nature (c); as the journals of the two houses of parliament (d); the transfer-books of the East India Company (e); the poll-books of an election (ƒ); the city books of the boundaries of public markets (g); the rolls of a court-baron (h); the customary of a manor (); the parishregister of christenings, marriages, and burials (k); the public books and papers of a corporation (1); the daily-book kept by the clerk of the papers of the prison of Newgate (m). Salkeld, 281. Sed vide Bull. N. P. 247. (1) 1 Str. 93. 401. (m) Cases C. L. 330. 632. 935. (n) 2 Stra 1005. + Sect. 66. It is also a general rule, that where it is necessary (0) 3 Term Rep. to prove that a person is in a public capacity, as an officer of the (p) 3Term Rep. post-office (n), a farmer of the post-horse duty (0), a beneficed clergyman (p), an attorney (q), an excise or custom-house officer (r), a captain of a man of war (s), a constable (t), it is sufficient to shew that they acted upon the occasion as officers in their respective capacities, without producing the written instrument by which they were severally appointed. 366. (9) 4 Term Rep. (*) Cases Cro. L. 278. notis. (5) 1 Show. 6. (t) Gordon's case, Cases C. L. 412. (u) Co. Litt. 6. 112. 187. 2 R. Ab. 686. 2 Term Rep. 4 Term Rep. 679. (r) Raym. 1. and the same point was admitted in Fielding's Trial, St. Tr. vol. 4. f. 754. Rex v. Cliviger, S. P. 2 Lord As to the EIGHTH POINT, viz. Whether husband and wife may be witnesses for or against one another. Sect. 67. It seems (u) agreed, that husband and wife, being as one and the same person in affection and interest, can no more give evidence for one another in any case whatsoever than for themselves; and that regularly the one shall not be admitted to give evidence against the other, nor the examination of the one be made use of against the other, by reason of the implacable dissension which might be caused by it, and the great danger of perjury from taking the oaths of persons under so great a bias, and the extreme hardship of the case. Sect. 68. And therefore it hath been (x) adjudged, that the husband cannot be a witness against the wife, nor the wife against the husband, to prove the first marriage, on an indictment on the statute of 1 Jac. 1. c. 11. for a second marriage. + Sect. 69. So also where a settlement was claimed by a person as the wife of J. W. and after a proof of a marriage in fact, the wife of J. W. was called to prove a previous marriage to her, the wife was rejected as an incompetent witness, because her evidence went to criminate her husband by proving him guilty of bigamy.. + Sect. + Sect. 70. So also if a husband be charged with having con- Field v. Curtis, cealed his effects as a bankrupt contrary to 5 Geo. 2. c. 30. his Cowp. 829. wife cannot be examined as to any thing that may tend to crimi nate him. + Sect. 71. So also it seems, that in questions between other Hill v. Hill, parties, the evidence of a wife shall not be admitted, if it directly 2 Str. 1092. tend to charge or criminate her husband; but she may give evi dence touching his estate. + Sect. 72. So in an information against two, one for perjury, Sid. 377. and the other for subornation of perjury, in swearing, on the trial Keble, 403. of an ejectment, that a child was supposititious, the husband of Mar. 120. one of the defendants was admitted to give evidence of the birth, but his testimony as to the subornation of perjury was rejected. Sect. 73. But no other relations, as parent and child, brother Co. Lit. 6. and sister, &c. are excused from giving evidence for or against Sayer, 45. each other. 1 Wils. 332. 265. 209. 366. Sect. 74. And some exceptions have been allowed to this ge- (3) State Tr. neral rule in cases of evident ncessity. As in the Lord Audley's case, (2) who held his wife's hands and legs while his servant, by his command, ravished her; the wife was admitted to give evidence against him. vol. 1. f. 388. Hutt. 116. Rushw. Collections, part 2. vol. 1. f. 94.99. But this case is denied to be law, Raym. 1. Sect. 75. So also where a man is indicted for a (a) forcible marriage against the (b) purport of 3 Hen. 7. c. 2. the wife may be admitted an evidence against her husband. (a) Cro. Ca. 488. State Trials, vol. 4. f. 588. 3 Keble, 193. pl. 43. (b) See Felonies by Statute, bk. 1. Sect. 76. And it seems also, that on an indictment for a for- Rex v. Perry, cible marriage, the wife is an admissable witness for her husband; at Bristol, 1794. as to prove that the elopement and marriage were voluntary and not forced. Sect. 77. So also where either a husband or wife have cause to demand (c) sureties of the peace against the other, each may give evidence against the other of the cause on which such sureties are demanded. (c) See Bk. 1. 542. + Sect. 78. So in an indictment against a husband for an as- Rex v. Azir, sault on his wife, the wife is an admissible witness against him. a + Sect. 79. But it does not seem to be clearly settled, whether wife may be admitted as a witness against her husband in high treason. As to the NINTH POINT, viz. Whether a judge or juror may be a witness. 1 Stra. 633. Raym. 1. 1 Brownl. 47. 1 Hale, 301. 1 Sid. 133. Sect. 80. It seems (d) agreed, that it is no exception against a () 2 St. Tr. person's giving evidence either for or against a prisoner, that he 257.632.674. is one of the judges or jurors who are to try him. And in the Kelynge, 12. case of Hacker, two of the persons in the commission for the trial came off from the bench, and were sworn and gave evidence, and did not go up to the bench again during his trial. As Lindsay v. Talbot, Stra. 140. Bull N. P. 284. Bull. N. P. 284. Bull. N. P. 284. Doe v. Andrews, Cowp. 845. Stra. 1122. As to the TENTH POINT, viz. Whether a counsel or attorney may be a witness. Sect. 81. It is a rule of law that counsel and attornies ought not to be permitted to give evidence of any facts communicated to them by their clients in the practice of their profession; for that it is contrary to the policy of the law to permit any person to betray a secret with which the law has intrusted him: but this is to be considered as the privilege of the client, and not of the counsel or attorney, and is confined to such facts as have been communicated to them respectively in receiving professional instruction in the cause in which they are retained. Sect. 82. A counsel or attorney therefore may give evidence of facts which they knew before they were retained. + Sect. 83. So also a counsel or attorney may be called to prove a fact of which they might have had knowledge without being retained in the cause; as whether a deed erased was ever in a different plight; for that is a fact of their own knowledge, but they cannot disclose a confession of their client concerning it. + Sect. 84. So also if a counsel or attorney be witness to a deed produced in the cause, he shall be examined as to the true time when it was executed. + Sect. 85. So also on an indictment for perjury in an answer Bull. N. P. 284. in chancery, if the defendant's attorney was with him when he Cowp. 846. Espin. Dig.717. took the oaths, he may be called to prove the identity of the person; for this is collateral matter, and not communicated to him by his client professionally, but a fact which he might have known from his own observation. Cobden v. Ken'drick, 4 Term Rep. 431. Wilson v. Ras 753. + Sect. 86. So also an attorney may be called to give evidence of facts communicated to him in a conversation between him and his client touching the justice of his suit after a compromise of the suit; for the purpose of the suit having been obtained, the communication was not made by way of instruction for conducting his cause. + Sect. 87. And this privilege is strictly confined to persons tal, 4 Term Rep. acting in the situation of attornies or counsel in the cause; and therefore if a person consult with an attorney as a friend, such attorney may be called upon to disclose the facts which came to his knowledge on such consultation; but if he be consulted as attorney, he cannot disclose facts communicated to him in any case whatever. Cæsar Haw kins's case, in the trial of the + Sect. 88. So also this privilege of secrecy does not extend to persons of other professions, as physicians, surgeons, &c. Duchess of Kingston, 11 State Trials, 243. 12 Vin. Abr. 38. † Sect. 89. But a clerk attending upon a grand jury shall not be allowed to reveal that which was given in evidence before the inquest. As to the ELEVENTH POINT, viz. How far an accomplice may be a witness. Sect. Sect. 90. It has been long settled (a), that it is no exception (a) 1 St. Tr. 96. against a witness that he hath confessed himself guilty of the same 696, 697.723. crime, if he have not been (b) indicted for it; for if no accom- 501. plices were to be admitted as witnesses, it would be generally im- 3 St. Tr. 161. possible to find evidence to convict the greatest offenders. 2 St. Tr. 334. 217, &c. 595. 698.669. 4 St. Tr. 12. 33. 1 Hale, 303, 304. See Hale's opinion to the contrary arguendo. 1 St. Tr. 724. and Bracton, 118. (b) 1 St. Tr. 96. 2 St. Tr. 501. Sect. 91. Also it hath been often (c) ruled, that accomplices who are indicted, are good witnesses for the king, until they be convicted. 3 Keble, 136. Vide vol. 1. fol. 697. (c) 1 St. Tr. 966. 4 State Tr. 12. Kelynge, 17, 18. 10 State Tr. 190. + Sect. 92. It hath also been determined, that a prisoner may be legally convicted on the evidence of an accomplice, though unconfirmed by any other evidence (d). But it seems to be the (d) Atwood's general opinion, that unless some fair and unpolluted evidence case, Cases C. corroborate and give verisimilitude to the testimony of an accomplice, a person convicted under such circumstances ought to be recommended to mercy. Sect. 93. It seems also, that an accomplice may give evidence before a grand jury against a particeps criminis, though such accomplice be not previously admitted a witness for the crown, and was carried before the grand jury by a surreptitious and illegal order from the prison to which he had been committed for the same offence. Sect. 94. Also it hath been (e) adjudged, that such of the defendants in an information against whom no evidence is given, may be witnesses for the others. L. 367. Dr. Dodd's case, Cases C. L. 142. (e) 1 Sid. 237. (f) 2 R. Abr. Sect. 95. It hath been also (f) adjudged, that where A. B. and C. are sued in three several actions on the statute for a supposed 685. perjury in their evidence concerning the same thing, they may be good witnesses in such actions for one another. + Sect. 96. So also in an action of trespass, or in an informa- Sayer, 290. tion for bribery on the statute of 2 Geo. 2. c. 24. a particeps cri- Cowp. 199. minis is a good witness, though left out on purpose to enable him to give evidence, and though a recovery against the defendants in the action is a good bar, and in the information a good discharge of himself. As to the TWELFTH POINT, viz. Whether a person attainted or convicted may be a witness. Sect. 97. It seems agreed, that a conviction, and therefore à (g) 5 Mod. 16. fortiori an attainder or judgment of (g) treason, (h) felony, (i) 74. piracy, (k) pramunire, (1) perjury, forgery, (m) 5 Eliz. c. 14. and Kelynge, 33. (h) Raym. 369. also a (1) judgment in attaint for giving a false verdict, or in con- Co. Litt. 6. spiracy at the suit of the (0) king, and also (p) judgment for any 2 Bulstrode, 154. crime (i) 2 Roll. Ab. 686. (k) Co. Lit. 6. (1) Raym. 32. Infra, sect. 22, 23. Supra, c. 37. s. 52. Co. Lit. 6. Sum. 263. (m) Co. Lit. 6. Vide sup. c. 43. s. 25. 33 H. 6. 55. 2 Hale, 277. But Sum. 263. it is said in general, that one attaint of forgery cannot be a witness. (n) Co. Lit. 6. 2 Roll. 684. (0) 33 H. 6. 55. 24 E. 3. 34. Vide 1 Hale, 306. Sup. c. 43. s. 25. B. 1. tit. " Conspiracy," p. 449. Co. Lit. 6. 2 Hale, 277. But Sum. 263. it is said in general, that one attaint of conspiracy cannot be a witness. (p) That it is not material whether such judgment were actually executed, 2 Salk. 689. 3 Inst. 219. 3 Levinz, 426. But Co. Lit. 6. Kely. 37, 38. Sum. 263. 2 Hale, 277. 5 Mod. 75, 76. seem to make the execution of the judgment material. 3 Lev. 426. This point is (r) 2 Salk. 689. (†) crime whatsoever to stand in the pillory, (1) to be whipt or branded, being in a court which had a (s) jurisdiction, are good causes of exception against a witness, while they continue in force. 5 Mod. 15, 16. 75, 76. Skin. 578, 579. And it is said, that by the civil and canon law no such judgment disables a witness, unless the nature of the crime be infamous. 3 Lev. 426, 427. (s) 1 Sid. 51. Raym. 32. made a quære, (1) Co. Litt. 6. (u) Gilb. L. E. Bull. N. P. 292. 143. Prin. P. L. 62. Sect. 98. And as the common punishment inflicted on the crimen falsi was the pillory, it was formerly held, that no man who had been set on the pillory, whatever might be the cause, could legally be a witness (): but the rigour of this rule is now reduced to reason (u); and it is now held, that it is the nature of the crime and not the species of punishment, which renders the party infamous and creates his disability of being a witness; and therefore a person convicted of barratry and fined, is incapacitated from being a witness, although not sentenced to the pillory (x); (2) Rex v. Ford, but where the sentence of pillory is passed, if the crime be of an infamous nature, it is not necessary that he should have actually stood there in order to render him an incompetent witness, for it is the judgment which creates the infamy, and not the infliction, Salk. 690. (y) Rex v. Crosby, 2 Salk. of the punishment (y). 689. Davis's Case, Walker v. Kearney, 2 Stra. 1148. (2) 1 St. Tr. 268. 2 St. Tr. 307. 436. 455. 3 St. Tr. 425. Sect. 99. It hath been ruled, that a conviction of perjury doth not disable a man from making an affidavit in relation to the irregularity of a judgment in a cause where such person is a party; for otherwise he must suffer all injustice, and would have no way to help himself. But it can only be read in defence of a charge, and not in support of a complaint. Sect. 100. But it is (z) agreed, that no such conviction or judgment can be made use of to this purpose, unless the record be actually produced in court. Sect. 101. Also it is a general rule, that a (a) witness shall not be asked any question the answering to which might oblige him to accuse himself of a crime; and that his credit is to (b) be impeached only by general accounts of his character and reputaStafford, 605. tion, and not by proofs of particular crimes, whereof he never was convicted. 4 St. Tr. 44. Con. Rushw. et ibid. 551. one was not ad mitted to speak to clear himself. Nor are witnesses permitted to give evidence of their own infamy or turpitude. 3 St. Tr. 427. 4 Inst. 279. 2 Sess. Cases, 175. Stra. 1148. Salk. 461.689. (b) Kely. 38. 3 St. Tr. 256. 280. 4 St. Tr. 129. 3 St. Tr. 151. 267.297. Bull. N. P. 291. Rex v. Edwards, 4 Term Rep. 440. (c) Co. Litt. 6. 1 Hale, 303. But 33 H. 6.32. pl. 2. taken no Sect. 102. But on an application to bail a person accused of grand larceny, the bail may be asked whether he has not stood in the pillory; for his answer in the affirmative cannot subject him to any punishment. Sect. 103. It seems clear (c) at this day, that outlawry in a personal action is not a good exception against a witness, as it is against a juror. tice of 2 R. Abr. 675. seems contrary. (d) Sup. c. 33. s. 129. c. 37. Sect. 49. Ld. Raym. 370. Sect. 104. It also seems clear, that a person convicted of felony who is admitted to his clergy and (d) burnt in the hand, is thereby re-enabled 80. Godb. 288. Sty, 388. Kely. 38. Vent. 349. Skin. 578. 5 Mod. 15. 2 Sid. 51. Hob. & (1) Vide ante, vol. 1. p. 449. |