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(as the incompetency may not at first be suspected), the rule is now so far relaxed that if it is discovered during any part of the witness's examination, or even after his cross-examination, that he is incompetent, the objection may be taken, and his evidence will be struck out. (P) But it seems that the objection comes too late after the witness has left the box ;() and it has been held that after a witness has been dismissed without any objection to his competency, it is not allowable to call a witness to prove his incompetency. (r) With respect, however, to the power of question
, ing a witness for the purpose of discovering his incompetency, there is still a material difference, which will presently be pointed out, between an examination on the voire dire and one after the witness bas been sworn in chief.
The party against whom a witness is called may examine him how to be respecting his competency on the voire dire, or may call another supported. witness and produce other evidence in support of the objection. (8) The old rule is said to have been, (t) that if the witness were examined by the opposite party as to the fact of the objection, and denied it upon his oath, the party would not be at liberty to call afterwards another witness to prove it, in order to repel him from giving evidence, unless the other side acquiesced. But the modern and more convenient practice seems to be, that if the fact of incompetency is satisfactorily proved, the witness will be incompetent, although he may have ventured to deny it on the voire dire. (u) It is now, however, clearly settled that, where a question arises Where a ques
tion is raised (p) Jacobs v. Leybourn, 11 M. & W. case, 9 St. Tr. 647. See also the obser685. 1 Phill. Ev. 153. Turner v. Pearte, vations of Parker, C. J., in Rex v. Mus1 T. R. 720. Howell v. Lock, 2 Campb. cot, 10 Mod. 193, in which case it was 15. Stone v. Blackburn, 1 Esp. 37. Pe- held that in criminal cases there could be rigal v. Nicholson, Wightw. 64. But an examination on the roire dire. where upon a trial for high treason it (u) 1 Phill. Ev. 154. In several cases appeared, after a witness had been exa- it seems to have been considered that it mined for the Crown, without objection is in the discretion of the judge whether on the part of the prisoner, that he had other evidence should be called to support been misdescribed in the list of witnesses, the objection before the witness is exwhich is required by the 7 Ann. c. 21, amined. And if the judge refuse to allow s. 14, to be given to the prisoner previous it to be then given, it seems that it may to his trial, the Court would not permit be given as part of the case of the party the evidence of the witness to be struck raising the objection, and if it support the out; but said, the objection ought to objection, then the evidence of the witness have been taken in the first instance ; objected to may be struck out of the notes. otherwise a party might take the chance Rex v. Wakefield, note (a), M. & Malk. of getting evidence which he liked, or, 197. Jones v. Fort, M. & Malk. 196. In if he disliked the testimony, he might this case the question was whether the then get rid of it on the ground of mis- defendant's examination taken under a description. Rex v. Watson, 2 Stark. commission of bankrupt was admissible, N. P. C. 158. And upon this ground, and Lord Tenterden, C. J., refused to Mr. Starkie expressed his opinion that a allow evidence to be given tending to party who was cognizant of the interest of show that from the mode of taking it, à witness at the time he was called, was and the state of the defendant's health, it bound to make his objection in the first was inadmissible before the examination instance. 1 Stark. Ev. 137 ; and see 1 was read, but held that it might be rePhill. Ev. 154, note (3), and Hartshorne ceived in the defendant's case, and v. Watson, 5 Bing. N. C. 477.
if the objection was supported, the evi(9) 1 Phill. Ev. 153. Beeching v. dence might be struck out. It certainly, Gower, Holt, N. P. R. 314.
however, is much the more convenient (r) Dewdney v. Palmer, 4 M. & W. course, as well for the purpose of saving 664.
time, as to prevent the jury from being (s) Per Hullock, B., Wakefields' case, influenced by inadmissible evidence, to p. 157. 2 Lew. 279.
receive the evidence before the examina(0) By Lord Hardwicke in Lord Lovat's tion of the witness. C. S. G.
as to the com
as to the competency of a witness before he is sworn, the proper petency of a
course is to receive all the evidence upon the question, both to imwitness, all the peach the competency of the witness and in support of it, before both sides he is allowed to give any evidence. Thus in a case at York, should be where a witness was objected to by a prisoner as incompetent on heard at once
the ground that he was insane, and the question arose as to the by the court.
mode to be adopted under such circumstances; Parke, B., consulted the judges upon it before he went the circuit, and they were of opinion that it ought to be tried on the voire dire, and evidence admitted both on the part of the prisoner and on the part of the prosecution to impeach the competency of the witness, and in support of it; (v) and it has since been held that where an objection is raised to the competency of a witness on the ground that he is insane, it is for the court to decide whether such person has the sense of religion on his mind, and whether he understands the nature and sanction of an oath ; and, in order to determine these questions, he may be examined and cross-examined, and witnesses on both sides may be examined, in order to found and to meet the objection to his competency before he himself is sworn. (w) If the court decides that he is a competent witness, 'then the jury are to decide on the credibility and weight of his
evidence.' (x) Where the
In one case, however, it bas been intimated that in every question arises case where any question is raised about the competency of a witafter a part ness after he has been sworn and partly examined, there ought examination of the witness. properly to be an inquiry made of the witness, who should be
Sworn to make true answer to all such questions as the court should demand of him ;' in other words, that an examination on the voire dire may be instituted at any period of the examination. (y)
(c) Anonymous, stated by Parke, B., held that that was the proper course, as in Attorney-General V. Šitchcock, í the question whether the account was a Exch. R. 91, and also in Bartlett +. privileged communication was to be deSmith, 11 M. & W. 483.
termined by himself; and the letter and (w) Reg. v. Hill, 2 Den. C. C. 254. evidence of the witness were received, (2) Per Lord Campbell, ibid.
and the account rejected as a privileged (y) Per Lord Abinger, C. B., and communication. Cleave v. Jones, Hereford Rolfe, B. Jacobs v. Leybourn, 11 M. & Sum. Ass. 1851 ; and the Court of ExW. 685. In Cleave v. Jones, Hereford chequer held that this ruling was correct. Sum. Ass. 1849, MSS. C. S. G., the 7 Exch. R. 421. In an action by the plaintiff's counsel, in order to take the payee against the maker of a promissory case out of the Statute of Limitations, note, payable two months after date, tendered an account in the defendant's with a plea that the defendant did not handwriting; and Rolfe, B., held that make the note, the defendant's signature the defendant's counsel might at once to the note was proved ; but the word put in two letters written by the plain- 'two' was evidently written on an eratiff to the defendant, in order to show sure. Erle, J., said that it was incumbent that the account was a confidential com- on the plaintiff to explain this, and a wit. munication by the defendant to the plain- ness was called for the plaintiff to prove tiff as her attorney. So on a subsequent that the note was in the same state when trial of the same cause, when the same it was signed by the defendant. Before account was tendered in evidence, the the note was read, it was proposed, on the counsel for the defendant claimed the right part of the defendant, to call witnesses to to interpose, and put in a letter of the prove that, when the note was signed by plaintiff, and to call a witness to show that the defendant, it was payable • three' the account was written out and sent by the months after date ; it was objected that defendant to the plaintiff in consequence
this evidence should be given as part of such letter; and Erle, J., held that this of the defendant's case but Erle, J., at might be done ; and upon the defendant's once received the evidence of two wit. counsel insisting that the witness ought nesses for the defendant, and upon their to be sworn on the voire dire, Erle, J., evidence decided that the alteration
is for the court.
On a prosecution for rape it appeared that the prosecutrix was deaf and dumb; and her father, who was sworn to interpret her evidence, said that he believed her to be ignorant of the nature of an oath,
An expert, however, came, and from his report to the court the prosecutrix was sworn, and her evidence taken down as interpreted by the expert. In the course of her examination it became apparent that she did not understand the questions, and that her answers could not be relied upon. The judge directed her to stand down, and struck out her evidence from the case : Held, that although the prosecutrix had been sworn, the judge acted rightly in striking out and withdrawing her evidence from the jury. (*)
Every question respecting the competency of a witness is to be The question determined by the court and not by the jury. (a) An examination on the voire dire is allowed to be conducted
Mode of exwithout strict regard to the general rule of evidence, which requires amination on the best possible proof of a fact, and admits no other. Thus a wit- voire dire. ness may be examined as to the contents of a written document without a notice to produce; (b) for the party objecting could not know previously that the witness would be called, and consequently might not be prepared with the best evidence to establish his objection. (c) And the same relaxation is allowed in removing an objection of incompetency as in raising it. Thus where in an action brought by a chartered company, a witness for the plaintiffs admitted on the voire dire that he had been a freeman of the company, but added that he was then disfranchised; Lord Kenyon ruled that it was not necessary to prove the disfranchisement by the regular entry in the company's books, and that the witness was competent. (d) So where, before the 6 & 7 Vict. c. 85, a witness was objected to as next of kin in an action by an
was not accounted for to his satisfaction, Painter v. Hill, 2 C. & K. 924, note. And where a witness for a plaintiff, being about to state the contents of a letter, a letter was put in his hands by the defendant's counsel, and he did not admit it to be the same; and the judge held that the defendant could not at that stage of the cause give evidence that it was the original ; the Court held that this was erroneous, and that the judge was bound at once to hear the evidence on both sides, and decide whether the document was the original ; and Parke, B., said, 'It is now well settled that all these preliminary questions, on which the reception of evidence depends, ought not to be submitted to the jury, but must be decided by the judge himself. Boyle v. Wiseman, 11 Exch. R. 360 ; and see Campbell's case, ante, p. 358.
nesses are called whom the opposite party
(3) R. v. Whitehead, 10 Cox, C. C. 234.
(a) Reg. v. Hill, 2 Den. C. C. 254, and see supra, note (y).
(6) Howell v. Locke, 2 Campb. 15.
(c) See Butler v. Carver, 2 Stark. R. 434. On the passage in the text being cited in Macdonnell v. Evans, 11 C. B. 937, Maule, J., said, 'In many cases wit
reason, therefore, given in that book is not a good
An examination on the voire dire is for the purpose of establishing something of which the court is to be the judge and not the jury. It may well be, therefore, that the rule there is not so exclusive as in the case of an examination going to a jury.' Either the 'no' or not' in italics seems inserted by mis. take in the report.
(d) Butchers' Company v. Jones, 1 Esp. 162. See also Botham v. Swingler, 1 Esp. 164. S. C. Peake, N. P. C. 219, where before 6 & 7 Vict. c. 85, the witness was allowed to remove an objection of interest raised on the roire dire by his own statement that he had become a bankrupt, and his estate had been assigned. See also Rex v. Gisburn, 15 East, 57. So where a bankrupt, before the above Act, called as a witness, stated on the voire dire that he had obtained his certificate and released his assignees ; Park, J. A. J., held him competent, without production of the release. Carlisle v. Eady, 1 C. & P. 234. See also Bunter v. Warre, 1 B. & C. 689.
administrator, but on re-examination answered that he had released all his interest, this was held by Lord Ellenborough to remove the objection. (e)
But it is only on the voire dire that the general rules of evidence are thus relaxed; for although objections to the competency of a witness may now be made at any stage of the trial, yet they are not to be attended with the privileges of an examination upon the voire dire. (f) So where a party, who calls a witness, attempts to remove the objection by other independent proof, and not on the voire dire, he will then be subject to all the general rules of evidence. (9) So where the objection is not raised on the voire
( dire, but appears in evidence in any other manner, the other party in answering it is bound by the usual rules of evidence. (h)
It is no exception against a person giving evidence for or against a prisoner, that he is one of the judges or jurors who is to try him. (i) And in the 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. ()
Judge or jury competent.
(e) Ingram v. Dade, MS. 1 Phill. Ev. 155. Lunniss v. Row, 10 A. & E. 606, overruling Goodhay v. Hendry, M. & Malk. 319, and a case in a note, ibid. 321. See 1 Phill. Ev. 156.
(1) Howell v. Lock, 2 Campb. 14.
(9) Corking v. Jarrard, 1 Campb. 37.
(h) Botham v. Swingler, 1 Esp. N. P. C. 165, by Lord Kenyon ; but see Cleave v. Jones, ante, p. 628, note (y).
(i) 2 Hawk. P. C. c. 46, s. 83.
ADDENDA ET CORRIGENDA
The 22 & 23 Vict. c. 17, s. 1, does not apply to the offence of 'at- Page 3. tempting to obtain money or other property by false pretences.' R. v. Burton, 13 Cox, C. C. 71.
On the trial of an indictment for robbery at the Kent assizes, the Page 5. offence appeared to have been committed in Surrey, at a distance of about 320 yards from the boundary of Kent and Surrey, as measured by a direct line, but at considerably more than 500 yards by the nearest road; and Parke, B., held that the distance must be measured in the direct line, and therefore the prisoner was triable in Kent. Reg. v. Wood, 5 Jurist, 225 ; see Mouflet v. Cole, 42 L. J. Ex. 8.
A hulk retaining the general appointments of a ship, registered as a Page 17. British ship, and hoisting the British ensign, although only used as a floating warehouse, is prima facie sufficiently a British ship to be within the 17 & 18 Vict. c. 267, and a crime committed thereon is within the jurisdiction of the Admiralty. R. v. Armstrong, 13 Cox, C. C. 184, Archibald, J.
The 37' & 38 Vict. c. 96 (the Statute Law Revision Act, 1874), repeals Page 31. 3 & 4 Vict. c. 111, s. 2, in part, i.e., from 'shall steal' to 'corporation or.' See 31 & 32 Vict. c. 116, s. 1, vol. 2, Larceny.
The Consolidation Acts as to punishment of principals in the second Page 81. degree and accessories are more correctly and at greater length set out, vol. 1, p. 185.
Add to note (6)—Trover for conversion of goods supplied by the plain- Page 83. tiffs to one Blenkarn. Blenkarn had taken premises at 37, Wood Street, and in ordering the goods had signed his name in such a way as to induce the plaintiffs to believe that he was a member of the well-known firm of Blenkiron and Co., Wood Street. For this fraud he was afterwards tried and convicted of obtaining goods by false pretences. Before his conviction, however, the defendants had honestly bought the goods in question from him, and had sold them again :-Held, that the defendants were entitled to judgment. The contract of the plaintiffs was with Blenkarn, and their intention being to part with the goods to their correspondent at 37, Wood Street, the property passed under it to him. Such contract, though voidable so long as the goods were in his hands, could not be avoided after the goods had been sold to a bona fide purchaser for value, so as to entitle the plaintiffs to recover them from such purchaser. By virtue of 24 & 25 Vict. c. 96, s. 100, on the conviction of Blenkarn, the property in the goods or proceeds revested in the plaintiffs, but such revesting did not relate back to the period previous to the conviction, when the goods were in the defendants' possession, and therefore the good title which they had acquired was not divested by the subsequent