1 Atk. 27. sworn prior to the eighteenth year of Edward the First, when they were expelled the kingdom. Sect. 149. But it is said, that an atheist, who has no belief of a God, and an imprecation of the Divine Being upon him if he swear falsely, cannot be a witness; for persons denying the being or attributes of the Deity, cannot consider themselves as Bull. N. P. 202. bound by the obligation of an oath, and therefore are not credible. White's Case, Cases Cro. Law. 1 Atk. 43. 45. Sitt. after Buller, 292. Sect. 150. So also if it appear that a person has no idea of a God or religion, is altogether ignorant of the obligation of an oath, a future state of rewards and punishment, the existence of another world, or what becomes of wicked people after their death, he ought not to be sworn: but a person sworn on the New Testament, who, on being asked if he believed in the holy gospels, answered, after some prevarication, that he believed in them as far as he understood them, was allowed to give evidence. Sect. 151. And it is held, that persons excommunicated cannot be witnesses, because being excluded out of the church, they are supposed not to be under the influence of any religion. Sect. 152. The statute 3 Jac. 1. c. 5. enacts, 66 That every popish recusant convict shall stand to all intents and purposes disabled, as a person lawfully excommunicated," and therefore Lord Coke refused to admit them as witnesses between (a) 2 Bulst. 155. party and party (a); but it is said, that this is too severe, and Bull. N. P. 293. that the purport of the statute is satisfied by the disability to bring an action. (b) 2 Str. 854. (f) Co. Litt. 6. 1 Brownl. 47. 66 Sect. 153. But by 7 and 8 Will. 3. c. 34. s. 6. which allows the affirmation therein described to be accepted instead of an oath, it is enacted, "That no quaker or reputed quaker shall by "virtue of this act be qualified or permitted to give evidence in any criminal causes, &c." Sect. 154. And on this statute it hath been decided, that a quaker is not an admissible witness upon making affirmation in an appeal of murder (b), or on a motion for an attachment for not performing an award (c), on a motion for a misdemeanor (d), or on exhibiting articles of the peace (e). As to the FIFTEENTH POINT, viz. How far infants, aliens, and persons deaf and dumb, may be witnesses. Sect. 155. It is (ƒ) certain, that want of discretion is a good exception against a witness; on which account alone (g) it seems, that an infant may be excepted against; for in some cases an infant of nine years of age has been allowed to give evidence. Sect. 156. And in the case of a rape committed upon a female infant of such tender years that she has not sufficient understanding to be admitted to give testimony on oath, it was formerly held, that the information she gave to others of the facts (h) 1 Hale, 302. and circumstances might be given in evidence by those to whom she made the communication (h), but this was never practised 634. but 2 Hale, 278. but upon extraordinary occasions (i), and the doctrine was soon (i) 11 Mod.228. overruled (k); and it is now settled, that if an infant appear, by (k) 1 Atk. 29. answers to questions propounded by the court for the purpose, Rex v. Powell, to entertain sufficient sense of the danger and impiety of falsehood, Cases in Crown she may be sworn and examined, however young in years she Law, 104. may be (1); but that unless infants have such sufficient discre- (1) Brasier's tion, they cannot give their testimony; for no evidence can be received, under any circumstances, except upon oath (m). 1 Stra. 700. Case, Cases Cro. Law, 182. Sect. 157. But it seems agreed, that it is no good (n) excep- (n) 1 St. Tr. tion against a witness, that he is an alien, or villein, or bond- 253. man, &c. with Sect. 158. Also it seems, that a man deaf and dumb, whom communication can be made by means of signs, &c. may be admitted to give material evidence against a prisoner. As to the SIXTEENTH POINT, viz. In what manner witnesses are to give their evidence. Ruston's Case, Case C. L. 316. Sect. 159. It hath always (o) been agreed, that the evidence (6) 2 Hale, 285. for the king must in all cases be upon oath, and also that the 2 Bulst. 147. evidence for the defendant in an (p) appeal, whether capital or 77. (p) 2 St. Tr. not capital, or in an indictment or information for a (q) misde- 1 Siderfin, 325. meanor, must also be upon oath. And it is said by Sir Edward (9) 1 Sid. 211. (r) Coke, "That he never read in any statute, ancient author, (r) 3 Inst. 79. "book, case, or record, that in criminal cases, the party accused "should not have witnesses sworn for him, and therefore that "there is not so much as scintilla juris against it." And it is said by Sir (s) Matthew Hale, that there is no known law against (5) 2 Hale, 283. it. 1 St. Tr. 148. c. 4. Sect. 160. However, there having been a constant immemorial (t) C. Car. 292. (t) practice not to suffer witnesses to be sworn against the king 2 Bulst. 147. upon indictments of capital crimes (u), except in some cases spe- 2 St. Tr. 296. cially provided for by statute; and the judges being always tender 737. of departing from the settled practice of their predecessors, and (u) Vide S1 El. generally choosing rather to presume it originally founded on some statute or other good foundation, than to suffer the reasonableness of it to be nicely inquired into, which might be an inlet to endless uncertainties; it was thought necessary to enact by 1 Ann. c. 9. s. 3. "That every person who shall be produced or appear as a witness on the behalf of the prisoner, before he or she be admitted to depose, or give any manner of evidence, "shall first take an oath to depose the truth, the whole truth, " and nothing but the truth, in such manner as the witnesses for "the queen are by law obliged to do; and if convicted of any "wilful perjury in such evidence, shall suffer all the punish"ments, penalties, forfeitures, and disabilities, which, by any of "the laws and statutes of this realm, are or may be inflicted upon persons convicted of wilful perjury." cr 66 Sect. 161. It seems, that peers of the realm have no privilege in criminal cases (x), as they have in civil cases, of being (*) 3 Keb. 61. examined upon their honour but that the evidence they give as well before the grand jury as the petit jury, must be upon oath, and if they refuse to be sworn, may be fined and com(a) 1 Salk. 278. mitted for a contempt of the court (a). Dyer, 53. notis. (b) Sed vide vol. 1. tit. Perjury," contra. + Sect. 162. It is said also, that it is not sufficient for a witness to depose "as he thinks or persuades himself:" First, Because the court must give an absolute sentence, and therefore ought to have more sure ground than thinking. Secondly, Because the witness cannot be prosecuted for perjury (b). Thirdly, Because the judges, as judges, are always to give judgment secundum allegata et probata, notwithstanding private individuals think otherwise. + Sect. 163. It seems also, that a witness shall not be per(c) 5 St. Tr.445. mitted to read his evidence (c), but he may refresh his memory from any book or paper, if he can afterwards swear to the fact from his own recollection; but if he cannot swear to the fact from recollection any further than as finding it entered in a book or paper, the original book or paper must be produced (d). (d) Phillips v. Perkins, 3 Term Rep. 749. 7 Mod. 119. 4 Term Rep. 440. + Sect. 164. It is a general rule, that a witness cannot be Rex v. Edwards, asked any question the answering of which may oblige him to accuse himself of a crime, or subject him to penalties or punishment; and therefore a witness may be asked if he has ever stood on the pillory, for the answer cannot subject him to any punishment. (1) (e) 1 St. Tr. 969. 3 State Trials, 238. 252. 420. (f) Vide 1 St. Tr. 969. 3 St. Tr. 1002. (g) St. Tr. 995. (h) The com pulsory process to bring in witnesses in criminal causes is either by subpœna issued in the king's name As to the SEVENTEENTH POINT, viz. In what manner witnesses are compellable to attend. Sect. 165. I take it, that in prosecutions for (e) misdemeanors the defendant may take out subpanas of course; but that in capital cases he hath no (ƒ) right, by the common law, to any process against his witnesses without a special order of the court. And it is said in Turner's case (g), that the court cannot grant the prisoner any precept to bring in his witnesses, &c. Sect. 166. But by 7 Will. S. c. 3. s. 7. "All persons accused "and indicted for any high treason, whereby any corruption of "blood may ensue, shall have the like process of the court where "they shall be tried, to compel their witnesses to appear for them "at any such trial or trials, as is usually granted to compel witnesses to appear against them." Sect. 167. And it seems, that since the statute of 1 Ann. c. 9. set forth more at large in the precedent section, which ordains, "That the witnesses for the prisoner shall be sworn," process may be taken out against them of course in any case whatsoever (h). As by the justices where the plea of not guilty is to be tried; or the justices or coroner who take the examination of the person accused, and the information of the witnesses, may at that time (and this is the usual way), or at any time after, and before the trial, bind over the witnesses to appear at the sessions, and if they refuse to be bound over, may commit them for contempt. 2 Hale, 52. 282. Where a witness is a prisoner in execution for debt, he must be brought up by habeas corpus ad testificandum, to give his evidence. 2 State Trials, 580. 4 State Trials, 37. (1) See stat. 46 Geo. 3. c. 37. by which a witness is obliged to answer questions relevant to the issue, which has no tendency to accuse himself, or to expose him to penalty or forfeiture. As to the EIGHTEENTH POINT, viz. In what cases witnesses may be allowed their expenses. 1529. Sect. 168. It seems, that in civil proceedings a witness is not obliged to attend, unless his expenses are tendered to him pursuant to 5 Eliz. c. 9. and if after such tender he neglect to appear, he may be fined according to the directions of that statute, or punished by attachment for a contempt of the court, as the circumstances of the case shall appear to be. (h) But in criminal (h) Ld. Raym. proceedings the demands of public justice supersede every conStrange, 1054. sideration of private inconvenience; and witnesses are bound, 1150. 510. unconditionally, to attend the trial upon which they may be sum- Black. 36. moned, and be bound over to give their evidence. To persons of opulence and public spirit this obligation cannot be either hard or injurious; but indigent witnesses grew weary of expensive attendance, and frequently bore their own charges to their great hinderance and loss; and Sir Matthew Hale (i) complains of the (i) 2 Hale, 282. want of power in judges to allow witnesses their charges, as a great defect in this part of judicial administration. B. R. H.313. By the 58 Geo. 3. c. 70. s. 4. the court, before whom any person Ante, p. 127. shall be tried for felony, are authorised to direct payment to the prosecutor and his witnesses and persons concerned in the apprehension of the felon, such sums as the court shall think reasonable to reimburse the prosecutor and his witnesses their expenses of prosecuting and to compensate them for their loss of time, &c. As to the NINETEENTH POINT, viz. What evidence maintains an indictment. sect. 115. Having already shewn, (k) that, according to the later opinions, (k) Ch. 25. where one is indicted upon a statute, and the evidence doth not bring the case within the statute, but yet proves the offence in the indictment as it is an offence at the common law, the defendant may be found guilty at the common law, and the words contra formam statuti rejected as surplus. Having also shewn, (1) that it is strongly holden, that a man (1) Ch. 35. cannot be found guilty of an indictment against him as principal, sect. 11. upon evidence which only proves him to have been accessary before, but shall be discharged of the indictment, I shall in this place take notice only of the following particulars. 2 Hale, 179. Sect. 169. FIRST, That it is a settled rule (m) in all cases, (m) Sum. 264. whether capital or not capital, that the day laid in the indictment 1 Hale, 361. or (n) appeal is not material upon evidence, but that the defen- 291. dant may be convicted upon proof of a fact at any other time, 3 Inst. 230. whether before or after the day laid, so (0) that it were before the 1 Salk. 288. time when the indictment or appeal were preferred and agree- 2 Inst. 318, Kelynge, 16. ably hereto Sir (p) Henry Vane was found guilty of an indict- 319. ment of high treason laid on the thirtieth of May, in the eleventh 4 State Tr. 9. (n) Sum. 187. of Charles the Second, upon evidence of a fact done the thirtieth (0) 1 Salk. 288. of January, in the first year of Charles the Second. 4 State Tr. 9. Sect. 3 Kelynge, 16. (p) Sum. 264. 2 Inst. 318. 3 Inst. 230. Confirmed by all the judges in the case of Lord Balmerino, 9 St. Trials, 587. and Townley's case, Foster, 7, 8. (q) Sum. 264. 270. 3 Inst. 230. and infra, Ch. 51. (r) Kely. 16. Summ. 264. 1 Hale, 361. 2 Inst. 318. 3 Inst. 230. (s) Salk. 185. 661. Sect. 170. SECONDLY, That where the time proved varies from that laid in the indictment or appeal, the jury may either find the defendant guilty generally, in which case the forfeiture shall reate to the time laid, till the verdict be falsified by the party intereted (as it may be in this (q) respect, though not as to the point ofthe offence); or they may (r) specially find him guilty on the day on which the fact is proved, whether before or after the day laid in the indictment or appeal, in which case the forfeiture shall relate to the day so specially found. But where a verdict expressly finds a defendant guilty before the time laid in the indictment or appeal, whether it may be falsified, as to the time, by the party interested, as it may be where it finds him guilty generally of the offence in the indictment or appeal, upon evidence of a fact after the time laid, may deserve to be considered. Sect. 171. THIRDLY, That where a certain (s) place is made Vide Fielding's part of the description of the fact which is charged against the Penal Law, 317. defendant, the least variance as to such place between the evidence and indictment is fatal; as where a trespass in taking away goods, or any other offence is alleged in such a parish in the house of J. S. or in such a parish in a play-house in Lincoln'sinn-fields, and upon evidence it appears to have been done at the house of a different person, or that there is no play-house in Lincoln's-inn-fields. (t) Sum. 264, 265. Salk. 288. 4 St. Tr. 9. Kely. 15. 33. (u) 2 Hale, 291. See the books above cited, and (x) Kely. 33. and Lord Pres ton's case, Sect. 172. But it is a settled (1) rule, that a place laid only for a venue in an indictment or appeal is no way material upon evidence; but that a proof of the same crime at any other place in the (u) same county, maintains the indictment or appeal as well as if it had been proved in the very same place. supra, ch. 25. sect. 35 to 54. and Cro. Eliz. 911. Sect. 173. Also it hath been (x) adjudged, that after a crime hath been proved in the county in which it is laid, evidence may be given of other instances of the same crime in another county, in order to satisfy the jury. in Hensey's case, 1 Burrow, 650. (y) Kely. 14, 15. 4 State Tr. 78. (2) For it is necessary that some overt-act Sect. 174. Also it was (y) adjudged, in Sir Henry Vane's case, that where one is indicted for high treason in compassing the king's death in one county, and the levying of war in the same county is laid as an overt-act of such treason, and (2) proved in be proved in the the same county by one witness, the levying of war in another county may also be proved by another witness. But it seems to have been (a) agreed at the same time, that where the levying of could no way be war is the treason for which the party is indicted, it must be fully proved in the county in which it is laid. same county, for otherwise the compassing said to be proved in the county wherein it is laid. See the books above cited. (a) Kelynge, 15. and Deacon's case, 9 St. Trials, 558. Foster, 9. (b) Fost. 245. Sect. 175. Also it seems, that at this day the levying of war can in no case be given in evidence as an overt-act in any county in which it is not laid, unless it tend to prove some overt-act that is expressly laid; for it is enacted by 7 Will. 3. c. 3. s. 8. "That no (b) evidence shall be admitted or given of any overt-act that 66 18 |