AS TO PROOF. GENERAL RULES medical opinions (1). A medical witness who has been in Court cannot be examined on the facts of the case, but only on matters of opinion (2). Agency. Although now an agent is a competent witness, parties' law advisers cannot be compelled to disclose what they have learned in preparing the case (3). This privilege applies only to legal advisers and their clerks. (4). A friend employed as an agent, though not a lawyer, would probably be held within the privilege (5). An agent is compellable, as to all matters learned while not acting as agent in relation to the crime under investigation, or prior to its commission (6). Latitude of cross, If an agent is asked as to any matter, to prove which he could not have been examined by the com Agent compellable. if agent ex amined. 1 Dickson ii. § 1973.-Alison ii. 544, 545.-Alex. Mackenzie, H.C., March 14th 1827; Syme 158.Thos. Braid and Mary Braid or Morrison, H.C., Jan. 27th 1834; 6 S. J. 220.-Chas. Donaldson, March 14th 1836; Bell's Notes, 269.-Alex. Murray, H.C., Nov. 15th 1858; 3 Irv. 262 and 31 S. J. 31. 2 Jas. Newlands, Inverness, April 1833; Bell's Notes 269.Elizabeth Jeffrey, Glasgow, April 30th 1838; 2 Swin. 113.-Sometimes a doctor is allowed to remain although he is to be examined as to facts, and withdrawn when other witnesses are to be examined as to facts to which he is to speak. This was done in the case of Edward W. Pritchard, H.C., July 3d to 7th 1865; 5 Irv. 88.-At one time an opinion was expressed against the practice. Christian Gilmour, H.C., Jan. 12th 1844; 2 Broun 23-See also David Gibson, H.C., May 18th 1848; Ark. 489.-But it is now quite common to admit them on a special motion.-Madeleine H. Smith, H.C., June 30th 1857; 2 Irv. 641 and 29 S. J. 564.-Alex. Murray, H.C., Nov. 15th 1858; 3 Irv. 262 and 31 S. J. 31.-Alex. Milne, H.C., Feb. 9th, 10th, 11th 1863; 4 Irv. 301 and 35 S. J. 470.-Case of Pritchard supra. 3 Act 15Vict. c. 27, § 1, as amended by 16 Vict. c. 20 § 2.-Dickson ii. §§ 1730, 1861, 1862, 1866. 4 Dickson ii. § 1863. - Alex. Humphreys or Alexander, H.C., April 3d and 29th 1839; Swinton's Special Report, and Bell's Notes 253. 5 Dickson ii. § 1863. Janet Hope or Walker, H.C., July 29th 1845; 2 Broun 465.-No absolute rule can be laid down. 6 Dickson ii. § 1865.-Hume ii. 350 Alison ii. 468, 469.-Alison goes too far when he says that confidentiality applies "to the matter "which has given rise to the trial, "though previous to the crime." There is no doubt that a communication to an agent with a view to the commission of a crime, is not privileged.-Dickson ii. § 1875.Hector Maclean, Inverness, Sept. 24th 1838; 2 Swin. 183 and Bell's Notes 253.-Alex. Humphreys or Alexander, April 3d and 29th 1839; Swinton's Special Report, and Bell's Notes 253. AS TO PROOF. mon law of Scotland prior to the recent statutes, his GENERAL RULES client cannot plead confidentiality against any crossquestion pertinent to the issue (1). Effect of dis A witness disqualified as to one accused, is equally so as to the rest (2). The spouse of one prisoner of several cannot be examined for or against the others, qualification. unless the trials be separated (3). The question whether the spouse of an accused person who is outlawed can be called against another accused under the same libel, is left in doubt by the decisions (4). Witnesses are sworn by a Judge (5). Those who swearing withave conscientious scruples against oaths make a solemn affirmation (6). A witness refusing to be sworn or Witness refusing. make an affirmation, may be imprisoned for contempt (7). This holds though the party against whom he is consent cannot called consents to his evidence being received without oath. the usual solemnities (8). 1 Act 15 Vict. c. 27.-See Will. Davidson, Aberdeen, April 18th 1855; 2 Irv. 151. Before the Act an agent could not give evidence on the facts.-See Harris Rosenberg and Alithia Barnett or Rosenberg, Aberdeen, April 16th 1842; 1 Broun 266 and Bell's Notes 285. 2 Dickson ii. § 1786.-Alison ii. 533.--Thos. Hunter and others, H.C., Jan. 3d 1838; 2 Swin. 1 and Bell's Notes 285. 3 Alison ii. 533, 534.-Geo. Wilson and Rob. Wilson, H.C., Dec. 18th 1826; Syme 38. Francis M'Manus and others, H.C., March 4th 1833; Bell's Notes 251.-Will. Clark and Rob. Greig, Aberdeen, April 14th 1842; 1 Broun 250. 4 David Todd, July 6th 1835; Bell's Notes 251.-Will. Clark and Rob. Greig, Aberdeen, April 14th 1842; 1 Broun 250. In the first, a High Court case, the evidence was rejected; in the other, a Circuit case, it was received. It is not likely that the High Court decision was brought under notice in the Circuit case, 5 Hume ii. 376.-As to the mode 6 Act 28 Vict c. 9. 7 Dickson ii. § 1969.-Alison ii. 432, and case of Elphinstone there, --Christian Tweedie or Laidlaw, June 22d 1829; Shaw 222.-Bonnar v. Simpson and others, H.C., Feb. 15th 1836; 1 Swin. 39 and Bell's Notes 264.-Instructive observations will be found in Lord Justice General M'Neill's opinion in M'Laughlin v. Douglas and Kidston, H.C., Jan. 17th 1863; 4 Irv. 273 and 35 S. J. 322. 8 Hume ii. 376, and case of Muir in note 2. ness. dispense with GENERAL RULES AS TO PROOF. not put on oath. Children under twelve are not sworn, but are adYoung children monished by the Judge to be truthful (1). Young children above twelve may be sworn (2). Fourteen is the age at which witnesses may be sworn without inquiry (3); but the Judge may, if called on, test the knowledge of a youthful witness who is more than fourteen, before swearing him, and such a witness may be examined without an oath (4). Dumb witnesses may be sworn through an interpreter (5). But deaf and dumb persons who do not understand the nature and obligation of an oath are examined without being sworn (6). Deaf and dumb. Witness must answer. Prevarication. Witnesses must answer all competent questions, and may be sent to prison if they refuse (7). Any witness who prevaricates may be imprisoned (8). But that a witness is found to have prevaricated will not necessarily preclude his further examination in causa (9). If a witness appear to be swearing falsely, he may be committed with a view to prosecution (10). A witness may be asked whether he has committed 1 Hume ii. 341.-Alex. Bishop and Jas. Brown, Glasgow, Sept. 23d 1829; Shaw 213.-Rob. Edmond, Feb. 8th 1830; Shaw 230. 2 Dickson ii. § 1677.-Hume ii. 341, case of Main and Aitchieson in note 1.-Alex. Buchan, Perth, April 26th 1819; Shaw 35. 3 Dickson ii. § 1677.-Hume ii. 341.-Alison ii. 432, 433. 4 Dickson ii. § 1677, note 0.Burnett 392, case of Miller in note. 5 Hume ii. 340, case of Martin in note b.-Alex. Gibb and others, Aberdeen, Sept. 1835; Bell's Notes 245. In the case of Rob. Reid, June 29th 1835, Bell's Notes 246, a dumb witness was sworn partly by writing. 6 John Wintrup, Jedburgh, Sept. 19th 1826; Shaw 211.-Margaret Farquhar and Margaret Hunter or Macgregor, Jan. 8th 1833; Bell's Notes 245.-John S. Montgomery, Aberdeen, Sept. 25th 1855; 2 Irv. 222.-Edward Rice, Glasgow, April 21st 1864; 4 Irv. 493. 7 Hume ii. 140.-Alison ii. 438. -ii. 550.-Alex. Kerr, Ayr, June 3d 1822; Shaw 68.-M'Laughlin v. Douglas and Kidston, H.C., Jan. 17th 1863; 4 Irv. 273 and 35 S. J. 322. 8 Hume ii. 140, and case of Holmes in note 1.-ii. 410.-Alison ii. 549, 550, and cases of Alexander: Maclaren and others: Martin and Tod there.-Rob. Mochrie and others, Glasgow, Oct. 4th 1844; 2 Broun 293. 9 Daniel Grant and others, Glasgow, Oct. 6th 1820; Shaw 50 and case of Mochrie supra.-See also Will. Brown and others, Nov. 12th 1832; Bell's Notes 255. 10 Alison ii. 549. AS TO PROOF. answer as to guilt of crime. questions affect a crime, but may decline to answer any question tend- GENERAL RULES ing to criminate himself (1), or to speak to facts from May decline to which guilt may be inferred (2). But he must answer questions affecting his credit, where legal guilt is not Must answer involved (3). Nor may he refuse to say whether he ing credit. has been convicted of or stands indicted for a crime (4). Where a witness is under promise of exemption from Socius criminis. prosecution, he cannot decline to answer as to his share of the crime under investigation (5). cancelled. A witness may have his signed precognition destroyed Precognition before he is examined (6). He may refresh memory Referring to by referring to notes taken at the time of, or immedi- notes or books. ately after, an occurrence (7), or to such documents (though not libelled on) as are truly a person's notes, such as business books. But where they are his own documents they must be written by himself, or if written by a clerk or partner, he must have satisfied himself of their accuracy at the time when the matter was fresh in his recollection (8). And though a witness may not refresh his memory by documents not his own and not produced, he may refresh his memory by looking at a document received from the accused at the time of the offence, and kept by him (9). A witness may not read his notes as evidence; he may only 1 Dickson ii. § 1796, 2016.-Alison ii. 447, 528. 2 Dickson ii. §§ 1797, 2019.Benjamin Pender, Glasgow, Jan. 8th 1836; 1 Swin. 25 and Bell's Notes 255.-Alex. Millar, H.C., March 18th 1837; 1 Swin. 483 and Bell's Notes 255.-Alex. Stephens, Aberdeen, April 20th 1839; 2 Swin. 348 and Bell's Notes 254. 3 Dickson ii. § 2017.-Benjamin Pender, Glasgow, Jan. 8th 1836; 1 Swin. 25 and Bell's Notes 258. Of course witnesses are protected by the Court from irrelevant inquiries. 4 Dickson ii. § 1797.-John Johnston, H.C., March 12th 1845; 2 Broun 401.-See several cases in 6 Dickson ii. §§ 1750.-Hume ii. 7 Dickson ii. §§ 2007, 2008.— Alison ii. 540, 541.-Felix Monaghan, H.C., March 15th 1844; 2 Brown 131. 8 Dickson ii. § 2014. 9 Geo. Wilson, jun., Aberdeen, May 1st 1861; 4 Irv. 42. GENERAL RULES Interpreter. Witness must not be led. use them to refresh memory (1). And a witness may not use a document not produced, to prove facts of which he has no independent recollection (2). Whether he may refer to a copy, without the original notes being at hand, depends on circumstances (3). The procurator of the party against whom he is called is entitled to inspect notes used by a witness (4). Witnesses ignorant of English may be examined through a sworn interpreter (5). But if a witness. understand English, it is not competent to take his evidence through an interpreter (6). Deaf and dumb witnesses are examined by an interpreter, either by alphabet or by gestures. The witness is first examined by the procurator of the party for whom he is called (7). He must not be led (8). But where a general question receives such an answer as I don't recollect," it is allowable to put a sufficiently leading question, to bring a circumstance Leading compe- to the witness' recollection (9). In cross, any pertinent question, however leading, is competent (10). Re-examination. The party calling the witness may re-examine him. When the re-examination is closed, if either party or a juryman wishes to put other questions, this is done Witness may be through the Court (11). A witness may, if necessary, tent in cross. Questions through Court. recalled. 1 Hume ii. 381, case of Kinloch in note 2.-Alison ii. 541. 2 Angus Macpherson, H.C., July 22d 1845; 2 Broun 450. In this case the doctrine laid down by Alison (ii. 613, 614) on this point was declared to be much too broadly stated. 3 Dickson ii. §§ 2011, 2012, 2013. -Alison ii. 510. 4 Dickson ii. § 2015.-Alison ii. 510. 5 Dickson ii. 8 2021.-Alison ii. 439.-Alex. Humphreys or Alexander, H.C., April 29th 1839; Swinton's Special Report and Bell's Notes 270. 6 Alex. M'Ra or M'Rae, Jan. 7th 1841; Bell's Notes 270. 7 For a statement of the general rules as to examination, see Dickson ii. 1977. As regards examination in initialibus, an expedient now almost never resorted to, see Dickson ii. § 1976. 8 Dickson ii. § 1983, 1984 passim. - Alison ii. 545. 9 Arthur Woods and Henrietta Young or Woods, H.C., Feb. 25th 1839 Bell's Notes 267. 10 Thos. Mure or Muir, H.C., Nov. 22d 1858; 3 1rv. 280.-Alison ii. 547 contra. 11 Dickson ii. § 1977. |