his trial for felony or misdemeanor shall be defended by counsel, but not otherwise,) it shall be the duty of the presiding judge, at the close of the case for the prosecution, to ask the counsel for the defence whether he intends to adduce evidence; and in the event of his not thereupon announcing his intention to adduce evidence, the counsel for the prosecution shall be allowed to address the jury a second time in support of his case, for the purpose of summing up the evidence against such prisoner; and upon every trial for felony or misdemeanor, whether defended by counsel or not, such prisoner or defendant or his counsel shall be allowed, if he shall think fit, to open his case; and after the conclusion of such opening, such prisoner or defendant or his counsel shall be entitled to examine such witnesses as he may think fit, and, when all the evidence is concluded, to sum up the evidence.

There are, however, still some points wherein a difference between civil and criminal evidence will be found to exist; and among these are the following (ƒ):—

First, in all cases of treason and misprision of treason, -by statutes 1 Edw. VI. c. 12; 5 & 6 Edw. VI. c. 11, and 7 Will. III. c. 3,-two lawful witnesses are required to convict a prisoner; unless he shall willingly and without violence confess the same (g). [And, by the last-mentioned statute, it is declared, that both witnesses must be to the same overt act of treason; or one to one overt act, and the other to another overt act of the same species of treason, and not of distinct heads or kinds: and that no

(f) Besides the differences which here follow, it is to be remarked that some of the rules of evidence introduced by 17 & 18 Vict. c. 125, (The Common Law Procedure Act, 1854,) do not apply to criminal, but only to civil cases. One of these, however, viz. 17 & 18 Vict. c. 125, s. 20, permitting any person called

as a witness and unwilling from
conscientious motives to be sworn,
to make affirmation instead, was
subsequently by 24 & 25 Vict. c. 66,
extended to criminal proceedings.
See also 32 & 33 Vict. c. 68, s. 4,
cited sup. vol. III. p. 535.
(g) 4 Bl. Com. p. 356.

[evidence shall be admitted to prove any overt act, not expressly laid in the indictment (h). And therefore in Sir John Fenwick's case, in King William's time, (where there was but one witness,) an Act of Parliament was made on purpose to attaint him of treason (i); and he was executed thereon (j).] Again, in prosecutions for perjury, there can be no conviction except on the oath of two witnesses: though it will be sufficient that the perjury be directly proved by one witness; and that corroborative evidence, on some particular point, be given by another (k); and where the alleged perjury consists in the defendant's having contradicted what he himself swore on a former occasion, the testimony of a single witness in support of the defendant's own original statement will support a conviction (1). [But, in almost every other accusation, the oath of one positive witness will be sufficient: the exception in case of treason, being allowed in order to secure the subject more effectually from false accusation in a case so penal, and where there may be danger of his being made the victim of political oppression: in the case of perjury, because it would not be reasonable to convict, where there is only one oath against another (m).]

Secondly, a confession of his guilt by the defendant, is

in general sufficient to support a conviction. But this is only on the supposition that it is freely and voluntarily made; for otherwise, it is not even admissible in evidence (n). If drawn from him, therefore, by means of any threat or promise, it cannot, in general, be received (o); and it is in no case evidence, except against himself (p). It is also a rule that if any part of a confession is used to establish the case on the part of the prosecution, the whole of it must be given in evidence; though the jury are at liberty to believe those parts which make against the defendant, and to disbelieve what he alleges in his own favour (q).

Thirdly, in a former volume it was mentioned, that, by a recent alteration of the law, the infamous character of the witnesses, or their being interested in the testimony they are about to give, does not now prevent their being examined, but affects only their credibility; and that the parties even to the cause are now made both competent and compellable (as the general rule) to give evidence (r). But this change does not operate so as to allow of the examination, at the time of his trial (s), of any person charged with any offence, whether indictable or punishable by way of summary conviction (t).

(n) See Parker v. Green, 2 B. & Smith, 299.

(0) See Reg. v. Luckhurst, 1 Dearsley's C. C. R. 245; R. v. Sleeman, ibid. 249.

(p) See also 7 Geo. 4, c. 64, by which provisions were previously made on the same subject, and which 11 & 12 Vict. c. 42, only repeals in part.

(q) R. v. Clewes, 4 Car. & P. 221. (r) As to proof of the previous conviction of a witness for crime, see 28 & 29 Vict. c. 18, s. 6; 34 & 35 Vict. c. 112, s. 18.

of a defendant, made on his being charged before a magistrate,—it will be remembered that when he makes the same after being duly cautioned, it is expressly provided by 11 & 12 Vict. c. 42, s. 18, that what he says may be given in evidence against him upon his trial. (Vide sup. p. 355.) See also an exception in the case of gaming-houses, noticed sup. p. 274.

(t) See Parker v. Green, 2 B. & Smith, 299. But a defendant in a criminal suit promoted against him under the Church Discipline Act

(*) As to the statement, however, (3 & 4 Vict. c. 86) may be ex

Fourthly, the deposition or statement on oath of witnesses before magistrates, duly taken according to the provisions either of 11 & 12 Vict. c. 42, s. 17, or of 30 & 31 Vict. c. 35, s. 6,-may be produced at the trial, and given in evidence for or against the defendant, if the party who made the same be dead, too ill to travel, insane, or kept away by the prisoner; or may be given in contradiction of the evidence of the deponent, if called as a witness at the trial itself (u).

Fifthly, though, by the general rule of law, all hearsay, that is, any statement by a witness of what has been said or declared out of court,-is excluded; yet on a charge of homicide, it is the practice to admit testimony as to the dying declarations of the deceased, with respect to the cause of his death,-that is, if made under a sense of approaching dissolution (x).

Sixthly, though by 16 & 17 Vict. c. 83, the husband or wife of any party to a legal proceeding, is now in most civil cases competent and compellable to give evidence on behalf of either or any of the parties, yet it is also thereby expressly provided that this is not to extend to compel or enable a husband to give evidence for or against his wife, or a wife to give evidence for or against her husband, in any criminal proceeding. Such evidence therefore remains inadmissible, as it always was by the common law. Yet this rule is open to certain exceptions. Thus, in treason, a wife may give evidence against her husband, because the tie of allegiance is paramount to all others.

amined. See Bishop of Norwich v. Pearse, Law Rep., 2 Ad. & Ecc. Ca. 281.

(u) See R. v. Scaife and others, 20 L. J. (M. C.) 229; Queen v. Upton, St. Leonard's, 10 Q. B. 827; Queen v. Clements, 30 L. J. (M. C.) 193; Reg. v. Beeston, 1 Dearsley's C. C. R. 405; The Queen v. Cockburn, 26 L. J. (M. C.) 136; Aus

tin's case (per Willes, J.), 1 Dearsley's C. C. R. 612.

(x) See as to dying declarations, R. v. Moseley, 1 R. & M. C. C. R. 97; R. v. Hayward, 6 Car. & P. 157; R. v. Perkins, 9 Car. & P. 395; R. v. Scaife, 1 M. & Rob. 551; The Queen v. Reany, 26 L. J. (M. C.), 43; The Queen v. Hind, 29 L. J. (M. C.) 147.

So upon a charge of forcible abduction and marriage, or other violence to her person, the woman is a competent witness against her husband (a).

[Seventhly, it was an antient and commonly received practice (b), derived from the civil law, and which also has obtained in France (c),—that as counsel was not formerly allowed to any prisoner accused of a felony, so neither should he be suffered to exculpate himself therefrom by the testimony of any witnesses. And therefore it deserves. to be remembered to the honour of Mary the first, (whose early sentiments, till her marriage with Philip of Spain, seem to have been humane and generous,) that when she appointed Sir Richard Morgan chief justice of the Common Pleas, she enjoined him, "that notwithstanding the "old error, which did not admit any witnesses to speak, "or any other matter to be heard, in favour of the ad

versary, her majesty being party;-her highness's "pleasure was, that whatsoever could be brought in "favour of the subject, should be admitted to be heard; ❝and moreover, that the justices should not persuade "themselves to sit in judgment otherwise for her highness "than for her subjects" (d). Afterwards, in one particular instance,-when embezzling the royal stores was made a capital felony (e),—it was provided by statute, that any person impeached for such felony "should "be received and admitted to make any lawful proof "that he could, by lawful witness or otherwise, for his "discharge and defence:" and, in general, the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive, that a practice was gradually introduced of examining witnesses for the prisoner, though not upon

(a) 1 Chit. Bl. 444, n. ; 1 Phil. Ev. 71; Lord Audley's case, 3 St. Tr. 402.

(b) St. Tr. i. passim.

(c) Domat, Pub. Law, b. 3, tr. 1; Montesq. Sp. L. b. 39, c. 11.

(d) Hollingsh. 1112; St. Tr. i. 72. (e) This was by 31 Eliz. c. 4, a statute repealed by 7 & 8 Geo. 4, c. 27. As to the existing provision with regard to this offence, vide sup. p. 130.