2ND EDIT. REVISED STATUTES 1906 REMARKS -(consisting in the cutting off of the head of a live cock or other fowl), is administered, instead of the less solemn "paper oath." (118) The administering of the Chinese "paper oath," to a Chinese witness, at his own suggestion, obligates him to give his evidence truthfully, under the like penalty for perjury as if the witness had affirmed or had been sworn, according to a form of oath recognized by Chinamen as more binding upon the conscience. (119) It has been held that section 684 (now sec. 1002) of the Code does not forbid an accused's committal for trial upon the uncorroborated evidence of one witness, but that it enacts that he shall not be convicted thereon. (120) Evidence taken under a commission is admissible not only before the Grand Jury and at the trial of the indictment when found, but also at the preliminary enquiry. (121) Ordering Witnesses Out of Court.-On the application of either of the parties, an onder will, as a general rule, be given for all witnesses except the one under examination, to leave the court. This order may be applied for at any stage of the enquiry, and it is rarely withheld; (122) although the authorities are somewhat conflicting as to whether it can be demanded of strict right, especially with regard to a prisoner. (123) If any of the witnesses remain in court after an order has been made to withdraw, the justices will have no right to exclude their testimony, however much the witness' wilful disobedience of the order may lessen the value of his evidence. (124) With regard to ordering witnesses out of court, an exception is made in favor of medical witnesses when their evidence is merely as to medical facts. Sec. 591. Sec. 684. Evidence for prosecution to be read to accused, and address to be made to him by the justice. After the examination of the witnesses produced on the part of the prosecution has been completed, and after the depositions have been signed as aforesaid, the justice unless he discharges the accused per (118) See R. v. Ah Wooey, 8 Can. Cr. Cas., 25, for a full description of the ceremony of administering the Chinese Oath. (119) R. v. Lai Ping, 8 Can. Cr. Cas., 467. (120) In re Lazier, 30 O. R., 419. (121) R. v. Venot, 6 Can. Cr. Cas., 471. (122) Southey v. Nash, 7 C. & P., 632. (123) Stark. Ev., 162; 2 Tayl. Ev., 8 E., sec. 1400; R. v. Cook, 13 How. St. Tr., 348; R. v. Vaughan, Ib., 494. (124) Chandler v. Horne, 2 M. & Rob., 423; Cobbett v. Hudson, 22 L. J. Q. B., 13. 2ND EDIT. REVISED STATUTES 1906 REMARKS son, shall ask him whether he wishes the depositions to be read again, and unless the accused dispenses therewith shall read or cause them to be read again. 2. When the depositions have been again read, or the reading dispensed with, the accused shall be addressed by the justice in these words, or to the like effect: Having heard the evidence, do you wish to say anything in answer to the charge? You are not bound to say anything, but whatever you do say will be taken down in writing and may be given in evidence against you at your trial. You must clearly understand that you have nothing to hope from any. promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any admission or confession of guilt, but whatever you now say may be given in evidence against you upon your trial notwithstanding such promise or threat, 3. Whatever the accused then says in answer thereto shall be taken down in writing in form 20, or to the like effect, and shall be signed by the justice and kept with the depositions of the witnesses and dealt with as hereinafter provided. Slightly altered. It is proper for the magistrate to ask the accused to sign the statement made by him under this section, even where his answer to the statutory question is merely, "I have nothing to say;" and it has been held that, the accused's signature to such statement may afterwards,-upon the trial of the charge of forgery upon which he was committed,-be used against him for purposes of comparison of the handwriting with the alleged forgery. (125) The preliminary enquiry before the magistrate of an offence punishable an indictment, is not, properly speaking, the enquete of the informant, but that of the magistrate; and if, on the preliminary hearing, the enquete has been declared closed and no evidence offered on the part of the accused, the magistrate may, in his discretion, and even after argument on questions of law arising from the evidence given, allow the informant to re-open the enquete and adduce further evidence. (126) (125) R. v. Golden. 11 B. C. R., 349; 10 Can. Cr. Cas., 279. (126) Belanger v. Mulvena, Que. Off. Rep., 22 S. C., 37. 2ND EDIT. REVISED STATUTES 1906 REMARKS Sec. 592. Sec. 685. Evidence of admission or confession. Unchanged. The onus of proving that an alleged confession was a free and voluntary one is upon the Crown. (127) An inducement held out to an accused person, in consequence of which he makes a confession must be one having relation to the charge against him, and must be held out by a person in authority, in order to render evidence of the confession inadmissible. (128) A "person in authority" means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him. (129) The reason that confessions, made as a result of inducements held out by persons in authority, are inadmissible is that the authority which the accused knows such persons to possess are supposed, in the majority of instances, both to animate his hopes of favor, on the one hand, and to inspire him, on the other hand, with awe, and so in some degree to overcome the powers of his mind. (130) If, however, it appears that the alleged confession was made under circumstances in which the accused could not have known or supposed that the person to whom the admission was made was a person in authority, then the evidence of the admission is admissable. (131) The rector of a cathedral is a person in authority over the choir boys with respect to the investigation of an alleged assault committed by them while on the way to a meeting of the choir; and answers of a choir boy elicited by the rector and the choir master upon such investigation and stated to be only for the purpose of that enquiry, are not admissible in evidence against the choir boy afterwards prosecuted for the assault,-without proof that the statements of the boy were made voluntarily. The onus of proving that the alleged confession was a voluntary one is Crown. (132) upon the A confession, preceded by a statement from a person in authority, will, notwithstanding that the statement may have operated as an inducement to make the confession,-be admissible in evidence, if, after the inducing statement and before the confession itself, the person making the confession was duly cautioned by the magistrate who received it. (133) (127) R. v. Royds, 10 B. C. R., 407; R. v. Kay, 11 B. C. R., 157; R. V. Tutty, 38 N. S. R., 136. (128) R. v. Todd, 4 Can. Cr. Cas., 514. (129) Ib. (130) Greenleaf on Evid., sec. 222. (131) R. v. Todd, supra. (132) R. v. Royds, 8 Can. Cr. Cas., 209; 10 B. C. R.. 407. (133) R. v. Lai Ping, 8 Can. Cr. Cas., 467. 2ND EDIT. REVISED STATUTES 1906 REMARKS There is a distinction between a confession obtained before and a confession made after arrest. The arrest itself constitutes an inducement or pressure upon the accused to speak; and, in order to satisfy the onus resting upon the Crown of proving that a confession, made in answer to questions put by a constable to the prisoner, was voluntary, it must be shewn that the accused was warned that what he said might be used against him. And so it was held that a confession, made by a person, under arrest, for theft, in answer to questions put to him by a police officer, without any warning to the prisoner, is not admissible against him, upon a charge of murder subsequently preferred. (134) The proper mode of proving that the prisoner's statement was voluntarily made is by negativing the possible inducements by way of hope or fear that would have made the statement inadmissible, and not by merely taking the affirmative answer of the officer under oath that the statement was made volontarily. (135) A prisoner's admission to a Crown officer while in custoly is not admissible in evidence, if it appears that an admission was suggested to the prisoner by a peace officer with inducements which would make an admission to him inadmissible, and was shortly afterwards made to the Crown officer as a result of such inducement. (136) DYING DECLARATIONS Proof of a dying declaration in a homicide case must be restricted to the transaction from which the death ensued but may include all facts immediately connected therewith, and a statement of the circumstances which immediately preceded the fatal injury. A dying declaration is admissible in evidence either for the prosecution or for the prisoner in a homicide case. To admit a dying declaration in a homicide case it is requisite that the declarant must have been not only in actual danger of death, but must have had a sense or conviction that his death was impending. (137) A dying declaration made by a person who cannot speak the language of the country, and which is proved only through an interpreter, is admissible, if shewn to contain the actual purport of the statement made, without proof being necessary of the exact language of the declarant. (138) (134) R. v. Kay, 9 Can. Cr. Cas., 403; 11 B. C. R.. 157. (136) R. v. Hope Young, 10 Can. Cr. Cas.. 466; 38 N. S. R.. 427. (137) R. v. Laurin, (No. 1), 5 Can. Cr. Cas., 324; R. v. Laurin, (No. 4), 6 Can. Cr. Cas., 104. (138) R. v. Louie, 7 Can. Cr. Cas., 347; 11 B. C. R., 1. 2ND EDIT. REVISED STATUTES 1906 REMARKS Sec. 593. Sec. 686. Evidence for the defence. After the proceedings required by section 684 are completed, the accused shall be asked if he wishes to call any witnesses. 2. Every witness called by the accused who testifies to any fact relevant to the case shall be heard, and his deposition shall be taken in the same manner as the depositions of the witnesses for the prosecution. Slightly altered. ADJUDICATION AND SUBSEQUENT STEPS AND BAIL. Sec. 594. Sec. 687. Discharge of accused, if no sufficient case Unchanged. made out. A person discharged by a justice on a preliminary enquiry for an indictable offence may be summoned again upon a fresh information for the same offence; and, if the accused is committed for trial at the second preliminary enquiry, the depositions on the first, when he was discharged, need not be transmitted to the trial court. (139) Sec. 595. Sec. 688. Prosecutor may have himself bound over to prosecute. If the justice discharges the accused, and the person preferring the charge desires to prefer an indictment respecting the said charge, he may require the justice to bind him over to prefer and prosecute such an indictment, and thereupon the justice shall take his recognizance to prefer and prosecute an indictment against the accused before the court by which such accused would be tried if such justice had committed him, and the justice shall deal with the recognizance, information and depositions in the same way as if he had committed the accused for trial. 2. Such recognizance may be in form 21, or to the like effect. (140) Sec. 595. Sec. 689. Costs in such case; and securily therefor. If the prosecutor so bound over at his own request does not prefer and prosecute such an indictment, or if the grand jury does not find a true bill, or if the accused is not convicted upon the indictment so preferred, the (139) R. v. Hannay, 11 Can. Cr. Cas., 23. (140) The old sec. 595 is made into these two sections 688 and 689. |