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be employed in the slave trade, the prisoner was a merchant in London, and the ship was seized off the coast of Africa, several letters then found on board of her were held inadmissible, as they were not traced in any way to his knowledge. (d)

The prisoner inserted an advertisement in a newspaper offering employment to persons who would transmit him one shilling's worth of postage stamps, and giving an address. The advertisement contained false statements, and upon his being apprehended six envelopes addressed to him, and containing a reply to the advertisement, and a shilling's worth of postage stamps were found upon him. 281 other letters, contained in a sealed bag, were produced on the trial by a clerk from the post-office, and on the bag being opened, the letters were taken out and read, and appeared to be addressed to the prisoner replying to his advertisement, and enclosing each one shilling's worth of postage stamps. These 281 letters had been stopped and opened by the post-office authorities before delivery to the prisoner, and had never been in his possession, or their contents brought to his knowledge ; nor was there any proof as to their authenticity or otherwise. Held, that they were admissible against the prisoner on an indictment charging bim with obtaining and attempting to obtain money by false pretences from four persons other than the writers of the letters. (e)

If the papers found in the prisoner's custody be plainly relative Without proof to the design charged, they may be read in evidence without any of being in proof of the handwriting being that of the prisoner. (f).


handwriting. On an indictment against a county for not repairing a public On an indictbridge, the defendants may show under the general issue that the ment against bridge had been repaired from time to time by private individuals : a county for

not repairing for one question is, whether the bridge is a public bridge; and a

a bridge, eviupon that question it is material to inquire, by whom and in what dence may be manner it had been repaired, with a view of ascertaining whether given that

individuals those repairs were adapted to the service of the public, or merely have repaired to the purposes of ornament or private convenience. (g) It is one it.

. medium of proof to show that the bridge has been repaired by individuals, though that alone would be of very little weight. (h)

In a question put by the House of Lords to the judges, in the Whether a course of the proceedings in the Queen's case, it was assumed that prisoner may proof of the existence of a conspiracy between the prosecutor and invois vietence others to suborn witnesses against the accused is a legitimate of a conspiracy

give ground of defence. Lord Chief Justice Abbott, in delivering their to suborn opinion, observed, that the judges understood that such an assump- against him. tion had been made in the question put to them, and that the House did not ask their opinion on that point ;) from which it may perhaps be inferred, that their lordships had doubts whether such a defence is allowable.

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not have been written previously to the writing on the other side. Reg. v. Hare, 3 Cox, C. C. 247. The Common Serjt., after consulting Maule, J., and Wightman, J.

But quære whether, as the portmanteau was in the prisoner's lodgings, they were not both of them in possession of its contents ! If the shawls had been in the portmanteau, would they not have been in the posses

sion of both prisoners ? C. S. G.

(d) Reg. v. Zulueta, 1 C. & K. 215, Maule, J., and Wightman, J.

(e) R. v. Cooper, 45 L. J. M. C. 15.
(f) 1 East, P. C. c. 11, s. 56, p. 119.

(9) Rex v. (Inhab.) Northamptonshire, 2 M. & S. 262.

(h) 1 Phill. Ev. 170, 7th ed.
(i) The Queen's case, 2 B. & B. 310.


Evidence of In criminal proceedings, when the prosecutor is a witness, his character.

character may be attacked in the prisoner's defence, in the same Character of

way as is applicable to the impeachment of the credit of witnesses prosecutor.

generally. In the particular instance of an indictment for a rape,

for an assault with an intent to commit a rape, evidence is admissible on the part of the prisoner, not merely, as in the case of an ordinary witness, that from her general bad character the prosecutrix ought not to be believed on her oath, but her cbaracter as to general chastity may be impeached by general evidence. (k) And the prosecutrix may be cross-examined as to particular discreditable transactions, (l) and as to her having had connection with the prisoner previously to the alleged rape ; (m) and if she deny such connection, the prisoner may show that she has been previously connected with him. (n) On an indictment for an indecent assault, as in cases of rape, or attempt to commit rape, the answer

, of the prosecutrix to questions put to her on cross-examination as to particular acts of connection with persons named to her, other than the prisoner, is final, and the party questioning is bound thereby, and if her answer be a denial the persons named cannot

be called to contradict her.'(o) Evidence of

In all criminal prosecutions the prisoner is always permitted to prisover's call witnesses to speak to his general character, (p) who are usually good cha

examined in his behalf, as to how long they have known him, and racter;

what his general character for honesty, humanity, or peaceable

conduct according to the nature of the offence charged) has been must be applic during that time. The inquiry ought manifestly to bear some cable to the analogy and reference to the nature of the charge against the charge ;

prisoner. On a charge of stealing it would be irrelevant and absurd to inquire into his loyalty or humanity; on a charge of

high treason, it would be equally absurd to inquire into his honesty must not refer and punctuality in private dealings. (q) The inquiry must also be to particular

made with reference to the general character of the prisoner ; for it is general character alone which can afford any test of general conduct, or raise a presumption that the person, who had maintained a fair reputation down to a certain period, would not then begin to act an unworthy part : and, therefore, proof of particular transactions, in which the prisoner may have been concerned, is

not admissible. (r) Cross-exami

It is not the practice to cross-examine witnesses to character nation as to unless there be some definite charge against the prisoner, to which character.

to cross-examine them. (8) But where a witness for the prisoner


(k) Vol. 1, p. 868.

(1) Rex v. Barker, 3C. & P. 589, vol. 1, p. 868.

(m) Rex v. Martin, 6 C. & P. 562, vol. 1, p. 868.

(n) Rex v. Aspinall, 3 Stark. Ev. 952, vol. 1, p. 868.

(0) R. v. Holmes, 41 L. J. M. C. 12; 12 Cox, C. C. 137. Semble, that the question may be put to her on crossexamination, but that she is not bound to answer it.

(p) Formerly evidence of the prisoner's good character was admitted in capital cases only, in favorem vitæ. Harris, 2 St. Tr. 1038. This evidence is

now admitted in all prosecutions which
subject a man to corporal punishment;
but not in actions or informations for
penalties, though founded on the fraudu-
lent conduct of the parties. Peake's Ev.
7. The true line of distinction, Eyre,
C. B., observed, is this : in a direct pro-
secution for a crime such evidence is
admissible ; but where the prosecution is
not directly for the crime, but for the
penalty, it is not. Attorney-General 0.
Bowman, cited 2 B. & P. 582.

(9) 1 Phill. Ev. 469.
(r) Ibid.

R. v. Rowston, post, 389.
(8) Rex v. Hodgkiss, 7 C. & P. 298,
Alderson, B. It sometimes, however, is

Rex v.


having proved that he had known him for some years, and given him a good character, stated, on cross-examination, that he had never heard anything against him; but admitted that he had heard of a robbery, which had taken place in the neighbourhood some years previously; and was then asked, “ Did you ever hear that the prisoner was suspected of having done it ?' it was objected that it was not competent to inquire about particular offences imputed to the prisoner. Parke, B., " The question is not whether the prisoner was guilty of that robbery, but whether he was suspected of having been implicated in it. A man's character is

A made

up a number of small circumstances, of which his being suspected of misconduct is one. The question may be put.' (t)

As to the course to be pursued where upon the trial of a person Where prisoner for any subsequent offence, he gives evidence of his good character, on trial for a

subsequent see vol. 1, p. 67. If a prisoner cross-examines the witnesses for the

offence. prosecution as to his character, he 'gives evidence' within the meaning of these sections, and the previous conviction may be proved. (u)

The prosecutor cannot enter into the defendant's character, un- Evidence in less the defendant enable him to do so, by calling witnesses in reply of pri

soner's bad support of it; and even then the prosecutor cannot examine to

character, particular facts, the general character of the defendant not being put in issue, but coming in collaterally. (v)

If a prisoner on his trial gives evidence that his character is good, it is open for the prosecution, by way of reply, to prove that the prisoner's character is bad— Martin, B., dubitante. "Evidence of character must not be evidence of particular facts, but (by all the Court, except Erle, C. J., and Willes, J.,) must be evidence of general reputation only, having reference to the nature of the charge. On a trial for an indecent assault, where the defendant had given evidence of his good character, a witness called by the prosecution to rebut such evidence, was asked, "What is the defendant's general character for decency and morality of conduct ?' The witness said, 'I know nothing of the neighbourhood's opinion, because I was only a boy at school when I knew him; but my own opinion, and the opinion of my brothers, who were also pupils of his, is, that his character is that of a man capable of the grossest indecency and the most flagrant immorality. Held, by the jority of the judges, that this answer was not admissible in evidence. (W)

Where on an indictment for stealing a shawl evidence of the prisoner's good character was given, it was held that evidence of


proper to ascertain from the witnesses whether they have had sufficient opportunities of knowing the prisoner's character ; as whether they have lived near him, or known him down to the time of the commision of the offence. C. S. G.

(1) Reg. v. Wood, 5 Jurist, 225.

(u) Reg. v. Gadbury, 8 C. & P. 676. Reg. v. Shrimpton, 2 Den. C. C. 319.

(v) Bull. N. P. 296, citing Martyn v. Hind. Cowp. 437. The ordinary course, however, is to ask the witness in crossexamination whether he has not heard

that the prisoner has been tried for a particular offence, Rex v. Hodgkiss, 7 C. & P. 298, Alderson, B.

(w) R. v. Rowton, 34 L. J. M. C. 57 ; 10 Cox, C. C. 25. Per Erle, C. J., and Willes, J., a witness's individual opinion respecting the general character and disposition of the prisoner with reference to the charge is admissible, although such witness knows nothing of the prisoner's general reputation. See R. v. Burt, 5 Cox, C. C. 284 ; R. v. Hughes, 1 Cox, C. C. 44.

stealing another shawl on the same evening was not admissible in answer to the evidence of character. (x)

On the trial of a prisoner for wounding a constable who had arrested him on suspicion of felony, the following questions, in order to assist in showing that there were reasonable grounds for the arrest, was put to the constable on the part of the prosecution, • What do you know had been the prisoner's previous character?' The answer was, 'I know the prisoner to be a very bad character.' It was held by the Court that this question ought not to have been put in the examination-in-chief, although it was open to the prisoner to have cross-examined the constable as to the grounds of his suspicion. (y)

Soon after the passing of the 6 & 7 Will. 4, c. 114, the Act allowing persons indicted for felony to make their defence by counsel or attorney, the judges promulgated, amongst others, the following rule of practice in cases of felony, that, if the only evidence called on the part of the prisoner is evidence to character, although the counsel for the prosecution is entitled to the reply, it will be matter for his discretion whether he will use it or not. Cases may occur in which it may be fit and proper so to do.' (2) And it has been since held in a case of felony that the counsel for the prosecution has in strictness the right to reply, (a) on the whole case, and not merely on the evidence to character, (6) although the counsel for the prisoner only calls witnesses to character ; but this is not a right which in practice ought to be exercised, except under very special circumstances. (C)


(x) R. v. Rogan, 1 Cox, C. C. 291, Erle, J.

(y) R. v. Turberfield, 34 L. J. M. C. 20, and 10 Cox, C. C. 1. With all deference it is submitted that this decision is erroneous. Every constable is justified in arresting any person whom he has reasonable grounds to suspect of having committed a felony ; and in every case where the question arises whether he had such reasonable grounds of suspicion, it is perfectly clear that it is competent to prove the grounds of such suspicion ; otherwise a right to apprehend would exist without the power of justifying the arrest. In civil cases (unless the defen. dant be authorized to plead the general issue by statute) the grounds of suspicion must be alleged in a plea to an action for the arrest; Davis v. Russell, 5 Bingh. R. 354 ; Hailes v. Marks, 7 H. & N. 56; and the reason is that, whether there were reasonable grounds of suspicion is a mixed question of law and fact. West v. Baxendale, 9 C. B. 141 ; and as where the grounds of suspicion are alleged in a plea, they must be proved on the trial ; so where the general issue is given by statute, they must be proved on the trial, Davis v. Russell, supra; and so in a criminal case like the present the grounds of suspicion must be proved, in order that the jury may determine whether in fact the grounds existed, and that the Court may decide, if they did exist, whether they were reasonable grounds. If a witness were asked whether he had reasonable grounds of suspicion, the question would clearly be erroneous ; as the answer would be a conclusion of

law and fact. In these cases the ques.

. tion is on what grounds and motives the constable acted at the time,' per Bur. rough, J., Davis v. Russell. Now it cannot be doubted that the bad character of the party may form one ground of sus. picion : and the ordinary rule applicable to the receipt of evidence of character is that general evidence is alone admissible ; but in a case like the present, as both the general character of the party and particular facts might operate on the mind of the constable, it is plain that evidence of both would be admissible. It is obvious too that the general character of the party might be infamous, and yet the constable might himself know nothing of such general character except from what he had been told by others ; to limit the question, therefore, to what the constable knew of the prisoner would be to exclude all evidence of his general character, which possibly formed a most material ground of suspicion. Lastly, evidence of the character or conduct of a prisoner is always admissible in order to show that the acts of others, especially of officers of justice, are lawful; which is a totally different issue from that raised as to the guilt of the prisoner, though that issue may depend upon the other. C. S. G. See vol. 1, p. 625.

(z) Rules of Practice in cases of felony, promulgated by the Judges before the Spring Circuit of 1837. 7 C. & P. 676, post, ch. 3, s. 1.

(a) Rex v. Stannard, 7 C. & P. 673, Patteson, J., and Williams, J.

The practice in cases of misdemeanor has uniformly been that when witnesses have been called, on the part of the accused, to character only, and for no other purpose, the counsel for the prosecution has not addressed the jury in reply, (d) but it seems that in strictness the right exists in cases of misdemeanor, though it ought rarely, if ever, to be exercised. (e)

It has been usual to treat the good character of the party Method of accused as evidence to be taken into consideration only in doubtful leaving evi:

dence of pricases. Juries have generally been told that where the facts proved soner's chaare such as to satisfy their minds of the guilt of the party, cha- racter to the racter, however excellent, is no subject for their consideration; but jury. that when they entertain any doubt as to the guilt of the party, they may properly turn their attention to the good character which he has received. It is, however, submitted with deference that the good character of the party accused, satisfactorily established by competent witnesses, is an ingredient which ought always to be submitted to the consideration of the jury, together with the other facts and circumstances of the case. The nature of the charge, and the evidence by which it is supported, will often render such ingredient of little or no avail ; but the more correct course seems to be, not, in any case, to withdraw it from consideration, but to leave the jury to form their conclusion, upon the whole of the evidence, whether an individual whose character was previously unblemished, has or has not committed the particular crime for which he is called upon to answer.(f)


What Allegations must be proved, and what may be rejected.

In the present section it is proposed to consider, 1st, What allegations in an indictment must be proved to support it, and what may be disregarded in evidence; and, therewith, of the subjects of surplusage, and the divisibility of averments. 2ndly, With what precision those allegations, which cannot be disregarded in evidence, must be proved ; and, therewith, of the subject of variance.

(6) Rex v. Whiting, 7 C. & P. 771, Bolland, B.

(c) Rex v. Stannard, supra.

(d) Per Patteson, J., in Rex v. Stan. nard, 7 C. & P. 673.

(e) Rex v. Stannard, supra, per Patteson, J., and Williams, J.

(f) In Rex v. Stannard, 7 C. & P. 673, Patteson, J., said, 'I cannot in principlo make any distinction between evidence of facts and evidence of character ; the lat. ter is equally laid before the jury as the former, as being relevant to the question

of guilty or not guilty; the object of lay. ing it before the jury is to induce them to believe, from the improbability that a person of good character should have conducted himself as alleged, that there is some mistake or misrepresentation in the evidence on the part of the prosecution, and it is strictly evidence in the case. And per Williams, J., 'It is evidence to be submitted to the jury, to induce them to say whether they think it likely that a person with such a character would have committed the offence.'

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