Co-defendant's Statement.

33

55

mother (the latter swore) and denounced defendant, who denied (or, at any rate, did not admit) the charge. It was admitted that the jury were misdirected: c. q. on this ground: the judgment (per Pickford J.) is, since Christie, only of authority on the function of the judge under this head. It was followed in Hickey, 6 Cr. A. R. 200; 27 T. L. R. 441, 1911. Appellant denied the truth of a statement made by a co-defendant on arrest, and that it was made in his hearing: but the judge put it as evidence of the truth: c. q. In A. J. Wilson, 5 Cr. A. R. 207, 1911, the C. C. A. condemned the admission of a written adverse statement by defendant's wife, though she was not called; and in Stroud, 7 Cr. A. R. 38, 1911, that by two accomplices made in defendant's presence, to which he in no way assented. See Tacit Admissions, below.

Incriminating statements by co-defendant] But a difficulty occurs where a confession by one defendant is given in evidence, which implicates others by name, about the propriety of suffering those names to be mentioned to the jury. Several cases are collected in 1 Lewin, 107, 1829-33, which show that Littledale J., Alderson B., and Denman C.J. considered that the whole of the confession, whether verbal or written, ought to be presented to the jury, not omitting the names; Parke J. thought otherwise. See Fletcher, 4 C. & P. 250, 1829, and Clewes, in both of which Littledale J. says, that he had formed his opinion after much consideration,' and told the jury not to pay the slightest attention to anything implicating any one but the confesser (in Clewes, however, it does not appear that any one else was then on trial). Bromhead and C. were charged together with stealing and receiving, and C. while in custody made a written statement implicating Br., which was read to him by the police in the presence of C., and he made no reply; C. died before the trial; the C. C. C. R. held that the statement was properly received: 71 J. P. 103, 1906. See Thompson, 1910.

The confession of the principal is not admissible against the accessory. Turner was indicted for receiving [see that title] sixty sovereigns recently stolen by one Sarah Rich. To establish the larceny the prosecution proposed to prove a confession by her, made before a magistrate in the presence of Turner, but not on oath, in which she stated various facts, implicating herself and others, as well as him; she was not called. Patteson J. refused to receive anything which was said by Rich respecting defendant, but admitted what she had said respecting herself: Turner was convicted. Having afterwards learned that a case had occurred before Wood B. at York, where two persous were indicted together, one for stealing and the other for receiving, in which the principal pleaded guilty, and the receiver not guilty, and that Wood B. refused to allow the plea of guilty, to establish the fact of the stealing by the principal, as against the receiver, Patteson J. thought it proper to refer to the judges the question, 'Whether he was right in admitting the confession of Sarah Rich?' They were unanimously of opinion that her 'confession was no evidence against' Turner, and the conviction was held wrong; and many of them appeared to think that had' she 'been convicted and the indictment against' Turner 'stated not her conviction, but her guilt, the conviction would not have been any evidence of her guilt, which must have been proved' aliunde: Turner, 1 Moody C. C. 347, 1832; and see Appleby, 1821. But in Cox, 1 F. & F. 90, 1858, Crowder J. admitted against a receiver the confession of the thief made in defendant's

presence as evidence of the fact of stealing, but on what ground it is impossible to say from the extreme brevity of the report. In Murtrie, 6 Cr. A. R. 128, 1911, receiving, the thief first implicated, then exonerated defendant, but the first statement, which defendant denied at the time, was given in evidence: c. q. See under Receiving. Where counsel opened no case against one of two defendants, and was about to detail to the jury certain statements made by that one, incriminating the other, Pollock C.B. interposed, saying that those statements ought not to be repeated merely because they were jointly charged, and that the proper course would be to take an acquittal of the one and examine him as a witness, and this was done: guilty. Gardner and Humbler, 9 Cox C. C. 332; 56 C. C. C. Sess. Pap. 708, 1862: see Morse, 1838.

Agents] An admission by an agent is never evidence in criminal, as it is sometimes in civil, cases, in the sense in which an admission by defendant himself is evidence. Thus, in order to make a client criminally responsible for a letter written by his solicitor, it is not sufficient to show that such letter was written in consequence' of an interview, but it must be shown that it was written by the instructions of the client. Downer, 14 Cox O. C. 486, 1880: C. C. R.: c. q. Where a person is charged with an offence through the instrumentality of an agent, then it becomes necessary to prove the acts of the agent; and, in some cases, as where the agent is dead, the agent's admission is the best evidence of those acts which can be produced. Thus, on the impeachment of L. Melville, it was decided that a receipt given in the regular and official form by Mr. Douglas, L. Melville's attorney to transact the business of his office as treasurer of the navy, and to receive and give receipts for all money, who was dead, was admissible against L. Melville to establish the single fact that a person appointed by him as his paymaster did receive from the exchequer a certain sum in due course. 29 St. Tr. 746-64, 1806. Had, however, Douglas been alive at the time, there can be no doubt that he must have been called; and of course he might have proved the receipt of the money. In allowing this receipt of Mr. Douglas to be read nothing is proved, but that this sum was issued to him under the power of attorney from L. Melville . . . but it is a totally different question in the consideration of criminal as distinguished from civil justice how' he may be affected by the fact when so established:-The receipt by ' Douglas would in itself involve him civilly, but could by no possibility convict him of a crime': per Erskine C.

6

Agent's conduct] In the Queen's case, at 304, the judges held that evidence to show that an agent of the prosecutor, not called as a witness, had offered a bribe to some one to induce him to give evidence in support of an indictment, or to bring him papers belonging to the accused such person not having been called as a witness could not be admitted to discredit generally the witnesses the prosecutor did call, but they were by no means prepared to say' that in some circumstances it might not be proper to let such proof go to the jury, and their inclination was rather to admit than to exclude it. Cf. p. 119.

By the prosecutor] In Arnall, 8 Cox C. C. 439, 1861, rape, Martin B. admitted evidence of what a relative of prosecutrix said in her presence to a relative of (absent) defendant about making it up,'

Defendant's Demeanour: Silence.

57

saying: In criminal cases the prosecutor, although not in strict law a party to the case, is so in fact, and I think that the rule applicable to conversation in the presence of a party in a civil case might be fairly extended to a conversation in the presence of the prosecutor in a criminal case': discussed 2 Russ. Cri. 2203 n. The point is not of much practical importance, but see Phips. 257.

Incriminating statements in judicial proceedings] A deposition of a witness, or the examination of a co-defendant taken before the magistrate, is not admissible merely because the party affected by it was present, and had an opportunity of cross-examining, or denying, or commenting on the evidence; neither can any inference be drawn from his silence. Appleby, 3 Stark. N. P. 33, 1821; Melen v. Andrews, M. & M. 336, 1829; Turner, 1832; Swinnerton, 1 Carr. & M. 593, 1842. See Silence, above. In none of these cases (except Melen v. Andrews) was anything said about the regularity of judicial proceedings (which prevents the free interposition allowed in ordinary conversation: per Parke J.); in the others it was held that defendant was not called on to answer statements not on oath, and therefore not those of co-defendants; in Melen, though the plaintiff against whom a deposition before magistrates was offered could have cross-examined or commented on it, but did not, yet the deposition was (doubtfully) rejected by Parke J., who remarked that, of course, it would be rejected if offered against a third person who merely happened to be present in court.' A fortiori, a deposition on a charge dismissed before the accused had an opportunity of replying would be inadmissible under the 'regularity rule. For other legal proceedings as evidence of conduct, see Tacit Admissions, below.

C. Tacit Admissions.

Inferences from demeanour and conduct] See, generally, B. above. The conduct or demeanour of a person charged, or on allusions being made to the charge, is frequently given in evidence against him. Thus, although neither the evidence nor the declaration of a wife was admissible against her husband on a criminal charge, yet observations made by her to him are within the (general) rule that whatever was said to a prisoner on that subject . . . to which he made no direct answer, was receivable, as evidence of an implied admission on his part': Smithies, 5 C. & P. 332, 1832: per two judges; prosecution alleged his reply was 'evasive': Bartlett, 7 C. & P. 832, 1837. So, also, a statement made by a wife of a defendant in his presence to a third person is admissible, at all events if made with his authority: Mallory, 13 Q. B. D. 33; 53 L. J. M. C. 134; 15 Cox C. C. 456, 1884: C. C. R. So evidence of a defendant's demeanour on a former occasion is admissible to prove guilty knowledge: Tattershall: Phillips, 1829. As the demeanour of a person on hearing a criminal charge against himself is liable to great misconstruction, evidence of this description ought to be regarded with much caution.

For such a charge in a letter to a third person shown to defendant, see Brooks, 1911.

In Ellis, 1910, evidence was properly given that there had been a civil action for fraud in respect of all the articles charged in the indictment; that defendant was not called to deny the fraud; that no

witnesses were called for him; that 'large' damages were given against him; that after the first day of that trial he had gone abroad and remained away till criminal proceedings were begun: the rule is that defendant's conduct on being charged may be given in evidence; if he is silent it may be evidence against him.' The prosecution would not have been entitled to put in that part of the statement of claim containing charges not in the indictment; but it ought not to have been stated that the judge ordered documents to be impounded (nor, perhaps, what the verdict was): 5 Cr. A. R. 54: five judges: c. q. In Firth, 1913, the C. C. A. approved of an incriminating statement having been put in against defendant, not a proof of its contents as it was not made in his presence-but of his conduct (silence) on hearing it. In Page, 1913, the answer to a charge was equally consistent with innocence and guilt: c. q.

Use] It is a well-known common law rule of evidence that what a witness has once stated (i) in a judicial proceeding, and (ii) subject to cross-examination, may, if (iii) that witness cannot possibly be produced again, be given in evidence, provided (iv) the inquiry be substantially the same on both occasions (or 'that the same issues are involved': Phips. 416), and between the same parties' or those claiming under them.' T. s. 464. Jolliffe, 4 T. R. 290, 1791. This applies not only to evidence taken at different stages of the same inquiry, but to successive inquiries into the same matter; as, for instance, to a new trial granted in a case of misdemeanour.

It is also a well-known rule of evidence that on any point material to the issue, a witness may be contradicted or discredited by showing that he has on a previous occasion made statements at variance with that made by him at the trial. This includes all previous statements of the witness, whether on oath or not, and whether in a judicial proceeding or not: see 28-9 V. 18, 4, 5.

Depositions here mean those taken in magistrates' or coroners' courts: occasionally the word means the information, e.g., in Fearshire. See, further, Purposes, below.

Witness-dead, ill, kept out of the way: common law] See Beeston, 1854. Depositions are admissible as substantive evidence at common law should the witness be either dead; 1 Hale P. C. 305: L. Morley and Bromwich, 1 Levinz 180; 6 St. Tr. 776; Kel. 55, 1666-coroner's depositions: Paine, 1 Salk. 281; 1 L. Raymond 729, 1695-rule not to be extended beyond felony; T. s. 472; Westbeer, 1739-information on oath of dead accomplice; no opportunity of cross-examination; strong corroboration held to be necessary; or be in such a state as never to be likely to be able to attend the assizes; Hogg, 6 C. & P. 176, 1833; Wilshaw, Carr. & M. 145, 1841-magistrate or clerk, if convenient, to be called; or if the witness be kept away by the practices of the defendant; L. Morley, above; Guttridge, 9 C. & P. 471, 1840; Scaife, 17 Q. B. 238; 20 L. J. M. C. 229; 2 Den. 281; 5 Cox C. C. 243, 1851; or is insane, Inhabs. of Eriswell, 3 T. R. 720, 1790. Admissibility is governed by 11-12 V. 42, 17:† In all cases where

The phrase is historical, going back at least to 1-2 P. & M. 13, 4, 1554; but it survived long after judicial interrogation of prisoners died out. See Wilson, 1817. In a sense the phrase has been revived, since defendants as witnesses may be examined.'

†The provisions of this Act are best understood from the history of the law, for which see Stephen, 1 Hist. Cr. L. 219–221.