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on the information of others, and the knowledge is usually, and especially in the latter mode, acquired incidentally, and, if I may so say, unintentionally, without reference to any particular object, person, or document.

If a witness states that he has only seen a party write once, but thinks the signature is his handwriting, it is evidence to go to the jury. (e) Where on an information for a libel, in order to show that certain letters were in the handwriting of the defendant, a witness proved that he had never seen the defendant write, but he had seen a number of letters, which purported to have come from him on the subject of a cause in which he was engaged on one side, and the witness on the other side, and the witness had acted upon those letters in the course of the cause ; Lord Tenterden, C. J., held that the witness was competent to prove the defendant's handwriting. (f) But where an attorney for three defendants stated that he did not know the handwriting of one of the defendants, but before undertaking to defend the action, he had required a retainer signed by all three defendants, and had received a retainer purporting to be signed by all the defendants, upon which he had acted; it was held that the attorney was not competent to prove the handwriting of the one defendant ; for one of the other two defendants might have signed the retainer for him with his assent. (g) Where a witness had observed a name signed to an affidavit, which had been used by the plaintiff's counsel in answer to an application to postpone the cause, and in the affidavit it was sworn that the party signing it was the plaintiff's wife; Park, J. A. J., held that the witness might speak to that person's name as the attesting witness to an agreement purporting to be signed by the plaintiff. (h)

Before the 28 & 29 Vict. c. 18, it was an established rule, that Comparison of handwriting could not be proved by comparing the paper with

any handwriting. other papers acknowledged to be genuine. (i)

But now by the 28 & 29 Vict. c. 18, s. 8, "comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses (1) respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.' (k)

(e) Garrels v. Alexander, 4 Esp. 37. Jervis, 8 C. & P. 273. Bromage v. Rico, Lewis v. Sapio, M. & Malk. N. P. C. 39, 7 C. & P. 548. by Abbott, c. J. Stranger v. Searle, 1 (j) See R. v. Harvey, 11 Cox, C. C. Esp. 14. R. 1. Crouch, 4 Cox, C. C.

546.

R. v. Williams, 9 Cox, C. C. 448. 163. R. v. Barber, 1 C. & K. 434. (k) This clause extends by sec. 1, 'to witness may prove the identity of a mark all courts of judicature, as well criminal from having seen the person make it on as all others, and to all persons having several occasions. George v. Surrey, M. by law or by consent of parties authority & M. 516.

to hear, receive, and examine evidence.' ( ) Rex v. Slaney, 5 C. & P. 213. See Doe d. Mudd v. Suckermore, 5 A. & (9) Drew v. Prior, 5 M. & Gr. 264. E. 702. 2 Nev. & P. 16. R. v. Cator, 4

(h) Smith v. Sainsbury, 5 C. & P. 196. Esp. 107. Goodtitle v. Braham, 4 T. R. But see Greaves v. Hunter, 2 C. & P. 497. Gurner v. Longlands, 5 B. & A. 477.

330. As to cross-examining a witness as (i) Reg. v. Wilton, 1 F. & F. 391, to other documents which were not in Bramwell, B. Reg. v. Coleman, 6 Cox, evidence in the case, before this Act, C. C. 163. Reg. v. Shepherd, 1 Cox, see Young v. Honner, 2 M. & Rob. 536. C. C. 237, Erle, J. Griffith v. Williams, 1 C. & K. 51. Griffiths v. Ivory, 11 Ad. 1 Cr. & J. 47. Doe d. Perry v. Newton, & E. 322. Hughes v. Rogers, 8 M. & W. 5 A. & E. 514. 1 Nev. & P. 4. Solita 123. Parke, B. v. Yarrow, 1 M. & Rob. 133. Eaton r.

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This section allows documents proved to be genuine but not relevant to the issue to be put in for the purpose of comparison. (1) The genuineness of such documents must be decided by the judge. (m) It seems that a person may write something in court for the express purpose of comparison under this section. A document, however, written under such circumstances, cannot altogether be relied on as representing the writer's ordinary hand

writing. (n) Peculiar

If a person has been in the habit of spelling a word in an unspelling of words.

usual manner, that is some evidence that a writing containing that word so spelled was written by that person, the value of such evidence depending on the degree of peculiarity in the mode of spelling and the number of occasions on which the person has used it; and the proof of such habit is not confined to the evidence of a witness who is acquainted with it from having seen the person write or correspond with him, but one or more specimens written by him with that peculiar orthography (o) will be admissible; for the object is not to show similarity of the form of the letters and mode of writing of a particular word or words, but to prove a particular mode of spelling a word, which may be evidenced by the person having orally spelt it in a different way, or written it in that way once or oftener in any sort of characters, the more frequently the greater the value of the evidence. Letters, therefore, written by a plaintiff, in which the defendant's name was improperly spelled Titchborne instead of Tichborne, were held to be admissible in evidence, in order to show that a libel in which the name was spelt in the same erroneous manner was in fact written by the plaintiff

. (P) As to the examination of skilled witnesses as to genuineness of

writing, see post, Book 6, ch. 5. s. 2. Proof of

A copy of a parish register purporting to be signed by the curate ancient docu

eighty years ago may be received with no other proof of handwritments.

ing than the evidence of the present parish clerk, who speaks from his having seen the same handwriting attached to other entries in

the register. (9) Unstamped Formerly a written instrument, which required a stamp, documents are

was inadmissible, as a general rule, in criminal as well as civil admissible in criminal

cases, unless it were duly stamped, and no parol evidence could cases.

be received of its contents. But now by the 17 & 18 Vict. c. 83, s. 27, 'every instrument liable to stamp duty shall be admitted in evidence in any criminal proceeding, although it may not have

the stamp required by law impressed thereon or affixed thereto.' (v.) Banking books By 39 & 40 Vict. c. 48 (the Bankers' Books Evidence Act, and copies of

1876), s. 3, from and after the commencement of this Act (11th entries in same when August, 1876), the entries in ledgers, day books, cash books, and evidence.

(1) Birch v. Ridgway, 1 F. & F. 270. (P) Brookes v. Tichborne, 5 Exch. R. Cresswell v. Jackson, 2 F. & F. 24.

(mn) Cooper v. Dawson, 1 F. & F. 550. (9) Doe d. Jenkins v. Davics, 10 Q. B. Bartlett v. Smith, 11 M. & W. 483.

As to proof of ancient writings, (n) See Cobbett v. Kilminster, 4 F. & F. see cases cited, Doe d. Mudd v. Sucker490. Arbon v. Fussell, 3 F. & F. 152. more, 5 Ad. & E. 718. R. v. Aldridge, 3 F. & F. 781. Williams's (r) See 33 & 34 Vict. c. 97, the Stamp case, 1 Lew. 137. R. v. Taylor, 6 Cox, Act, 1870, s. 17, which, except in crimiC. C. 58.

nal proceedings, prevents unstamped (0) Quære "cacography.'

documents being given in evidence.

929.

314.

other account books of any bank (s) shall be admissible in all legal proceedings (t) as primâ facie evidence of the matters, transactions, and accounts recorded therein on proof being given by the affidavit in writing of one of the partners, managers, or officers of such bank, or by other evidence that such ledgers, day books, cash books, or other account books are or have been the ordinary books of such bank, and that the said entries have been made in usual and ordinary course of business, and that such books are in or come immediately from the custody or control of such bank. Nothing in this clause contained shall apply to any legal proceeding to which any bank whose ledgers, day books, cash books, and other account books may be required to be produced in evidence shall be a party.

Sec. 4. Copies of all entries in any ledgers, day books, cash books, or other account books used by any such bank may be proved in all legal proceedings as evidence of such entries without production of the originals, by means of the affidavit of a person who has examined the same, stating the fact of said examination, and that the copies sought to be put in evidence are correct.

Sec. 5. Provided always, that no ledger, day book, cash book, or other account book of any such bank, and no copies of entries therein contained, shall be adduced or received in evidence under this Act, unless five days' notice in writing, or such other notice as may be ordered by the court, (u) containing a copy of the entries proposed to be adduced and of the intention to adduce the same in evidence, shall have been given by the party proposing to adduce the same in evidence to the other party or parties to the said legal proceeding, and that such other party or parties is or are at liberty to inspect the original entries and the accounts of which such entries form a part. (v)

Sec. 7. On the application of any party to any legal proceed- Judge may ings who has received notice, a judge of one of the superior courts order that may order that such entries and copies mentioned in the said copies are not

admissible. notice shall not be admissible as evidence of the matters, transactions, and accounts recorded in such ledgers, day books, cash books, and other account books.

Sec. 9. The fact of any such bank having duly made their Proof as to return to the Commissioners of Inland Revenue may be proved in status of bauk. any legal proceedings by production of a copy of such return, verified as having been duly made by the affidavit in writing of one of the partners, or of the manager, or of one of the officers of such bank, or by the production of a copy of a newspaper purporting to contain a copy of such return, published in such newspaper by the said Commissioners of Inland Revenue.

As to other points respecting the proof and effect of public and private documents, since they are of rare occurrence in criminal proceedings, it is thought more advisable to refer the reader to the general Treatises on the Law of Evidence, than to encumber this work with any notice of them.

(s) As to the meaning of this word, see (u) As to the meaning of 'the court,' sec. 1 of the Act in the appendix at the see sec. 1 of the Act, in the appendix. end of this vol.

(v) As to a judge of one of the supe. (t) As to the meaning of legal pro- rior courts having power to order an inceedings, see sec. 1 of the Act, noticed in spection of such book, &c., see sec. 6 of the appendix.

the Act, in the appendix.

440

CHAPTER THE FOURTH.

OF CONFESSIONS AND ADMISSIONS, P. 440. — OF STATEMENTS OF

THE ACCUSED BEFORE MAGISTRATES, p. 499—AND OF DEPOSI-
TIONS, p. 510.

Sec. I.

Of Confessions and Admissions. Confessions A FREE and voluntary confession of guilt made by a prisoner, sufficient for

whether in the course of conversation with private individuals, or conviction without proof under examination before a magistrate, is admissible in evidence aliunde. as the highest and most satisfactory proof, because it is fairly pre

sumed that no man would make such a confession against himself if the facts confessed were not true. (a)

A confession, if duly made, and satisfactorily proved, is sufficient alone to warrant a conviction, without any corroborating evidence aliunde (6)

(a) Gilb. Ev. 123. Lambe's case, 2 of memory, it should be recollected that the Leach, 552, 4th edition. Mr. J. Black- mind of the prisoner himself is oppressed stone, and Mr. J. Foster, entertained a by the calamity of his situation, and that different opinion. (See Fost. 243.) The he is often influenced by motives of hope former in the fourth volume of his Com- or fear to make an untrue confession. mentaries, p. 357, says, in speaking of The zeal, too, which so generally prevails confessions made to persons not in au. to detect offenders, especially in cases of thority as magistrates : ‘Even in cases of aggravated guilt, and the strong disposifelony at common law, they are the tion in the persons engaged in pursuit of weakest and most suspicious of all testi. evidence to rely on slight grounds of susmony, very liable to be obtained by arti. picion, which are exaggerated into suffi. fice, false hopes, promises of favour, or cient proof, together with the character of menaces, seldom remembered accurately,

persons necessarily called as witnesses in or reported with precision, and incapable cases of secret and atrocious crime, all in their nature of being disproved by tend to impair the value of this kind of other negative evidence.' A distinction evidence, and sometimes lead to its remay be properly made in the weight to jection where in civil actions it would be attached to confessions. If a confes. have been received.' The weighty obsersion be reduced into writing, either by vation of Mr. J. Foster is also to be kept the prisoner, or by some one else, and in mind, that 'this evidence is not, in the read over to him, and it be clearly shown ordinary course of things, to be disproved that the confession was the spontaneous by that sort of negative evidence by which and voluntary act of the prisoner, such the proof of plain facts may be and often a confession would be entitled to great is confronted.' Fost. 243. Mr. B. Parke consideration. But if a confession were has on several occasions observed that proved by a witness, and rested upon his 'too great weight ought not to be attached capability of understanding what was said to evidence of what a party has been by the prisoner, his competency to re- supposed to have said ; as it very fremember the very words used, and his quently happens, not only that the wit. fidelity and accuracy in relating them to ness has misunderstood what the party the jury, it ought to be received with very has said, but that by unintentionally great caution. For,' as has been well altering a few of the expressions really observed (Greenleaf's Evid. 247), "be. used, he gives an effect to the statement sides the danger of mistake, from the completely at variance with what the misapprehension of witnesses, the misuse party really did say.' Earle v. Picken, of words, the failure of the party to ex- 6 C. & P. 542, note. Rex v. Simons, press his own meaning, and the infirmity C. & P. 540.

A confession is obviously not conclusive evidence against a pri- Of the effect soner, and when it involves matter of law as well as matter of fact, of confessions. is to be received with more than usual caution. Thus on an indictment for setting fire to a ship with intent to defraud Greenfell and Eddy, being part-owners of the ship, a declaration of the prisoner that Greenfell and Eddy were part-owners was received in evidence ; but it was objected that the bill of sale, under which Greenfell and Eddy claimed, was invalid in point of law; and it was held that, if by reason of the invalidity of the document evidencing the transfer of their shares, their legal title to them could not be established, the declaration of the prisoner could not be relied upon for that purpose.

purpose. (c) So where, on an indictment for bigamy, the prisoner had confessed the first marriage, but it appeared that the marriage was void for want of the consent of the guardian of the woman, the prisoner was acquitted. (d)

(a) Confessions must be free and voluntary, p. 441.
ii) What promises and inducements will exclude confessions,

p. 442.

(c) What threats and menaces will do so, p. 456.

(d) Confessions made after former one, unduly obtained; or after inducements once made, p. 458.

(e) As to persons whose inducements will exclude confessions,

P. 463.

(f) Confession elicited by questions, p. 472.
(9) When prisoner's examination on oath evidence, p. 473.

(h) Discoveries and acts done in consequence of confessions unduly obtained, p. 482.

(i) Against whom confessions and statements evidence, p. 485.

(Á) Proof of confessions and statements—When onus on prosecutor to contradict same, p.

491.

(a) Confessions must be free and voluntary. But a confession, in order to be admissible, must be free and Must be free voluntary: that is, must not be extracted by any sort of threats or and voluntary.

a

(6) Wheeling's case, in note, 1 Leach, 311. Rex v. Eldridge, R. & R. C. C. R. 440. Rex v. Falkner, ibid. 481. Rex v. White and Langdon, R. & R. 508. Rex v. Tippit, R. & R. 509. Reg. v. Burton, Dears. C. C. 282. Rex v. Tuffs, 5 C. & P. 167. In Rex v. Edgar, Monmouth Spr. Ass. 1831, MSS. C. S. G., the prisoner was indicted for obtaining money of a friendly society by false pretences; the rules of the society had not been enrolled, but the prisoner, who was a member of the society, had acted under them, and it was contended that he had thereby admitted their validity, and the position in the text was cited as a stronger decision; on which Patteson, J., said 'Could a man be convicted of murder on his confession alone, without any proof of the person being killed ? I doubt whether he could.' In Reg. v. Sutcliffe, 4 Cox,

C. C. 270, where a robbery had been
committed on a moonlight night, Cress-
well, J., left the case to the jury on con.
fessions of the prisoner, though the
prosecutor swore the prisoner was not one
of the men who robbed him. The re-
mark on this case is that the prosecutor
might be in error ; the prisoner must
know whether he was guilty or not. In
the United States the prisoner's confes-
sion when the corpus delicti is not other-
wise proved, has been held insufficient for
his conviction. Greenleaf's Evid. 251,
Guild's case, 5 Halst. 163, 185. Long's
case, 1 Hayw. 524 (455). 2 Hawk. P. C.
c. 46, s. 36.

(c) Rex v. Philp, R. & M. C. C. R.
263.

(d) Anonymous, 3 Stark. Ev. 894, note (m), cor. Le Blanc, J.

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