154. But if no evidence be given to affect one of several defendants who has pleaded, the court in its discretion may order him to be acquitted, in order that he may give evidence for his co-defendants; 2 Hawk. c. 46, s. 98; or the prosecutor may apply to have one of several defendants acquitted, in order to make him a witness for the prosecution, and the other defendants cannot object to it. R. v. Rowland, et al. Ry. & M. N. P. C. 401.

A wife is not a competent witness for or against her husband, when charged with a criminal offence, or a husband for or against his wife; Gilb. Ev. 133, 134. Bac. Abr. Evidence, A. }; except in the case of a personal injury committed by one upon the other, in which case (from necessity) the one may be a witness against the other. R. v. Azyre, 1 Str. 633, and see 1 Ph. Ev. 79. Even where a husband was indicted for a conspiracy with others, it was holden that his wife could not be called as a witness for the others. R. v. Locker, et al. 5 Esp. 107. And in all cases where a husband would be an incompetent witness, his wife is also incompetent. R. v. Williams, 9 B. & C. 549, and see 12 East, 250. But in no other case of relationship are the parties incompetent to give evidence for or against each other: a father may be a witness for or against his son, a son for or against his father, a brother for or against his brother, &c. 2 Hale, 276.

An attorney cannot be obliged, nor indeed will he be allowed, to disclose any confidential communications made to him as attorney, by his client. Gilb. Ev. 136. 4 T. R. 753. 2 Brod. & B. 4. The same rule applies to barristers; but not to medical men, or other persons. Per Buller, J. 4 T. R. 760.

An accomplice may give evidence against those jointly guilty with him. See ante, p. 113. But although in point of law they may be found guilty on his testimony alone, R. v. Jones, 2 Camp. 132, 131. R. v. Hastings, 7 Car. & P. 152, yet in practice it is not usual to convict, on the testimony of an accomplice, unless his story be confirmed in some material parts by the testimony of other credible witnesses; see R. v. Barnard, et al. 1 Car. & P. 88. Arch. Sess. Pr. 148, 149; and this confirmatory testimony, must not merely relate to the manner in which the offence was committed, for that proves only that the accomplice was present at the commission of it, R. v. Wilkes, 7 Car. & P. 272. R. v. Webb. 6 Id. 595, but it must be as to some facts or circumstances which tend to connect the accused with the offence, or to connect the accused and the accomplice together. R. v. Addis, 6 Car. & P. 388.

Lastly, a person who has been convicted and had judgment for treason, felony, perjury, 2 Hawk. c. 46, s. 19, or for conspiracy to obstruct the course of justice, Bushel v. Barrett, Ry, & M. N. P. C. 432, or other conspiracy for which the villanous judgment might formerly have been given. See Arch. Sess. Pr.

149, 150, is incompetent as a witness; but the only mode of objecting to him, is by proving the judgment, &c., by the record or an examined copy of it. Bull. N. P. 292. But the competency of such a witness may be restored by a pardon. And in all cases where a person, convicted of felony not punishable with death, or with any misdemeanor except perjury and subornation of perjury, shall have endured the punishment adjudged for his offence, it shall have the effect of a pardon, and his competency shall thereby be restored. 9 G. 4, c. 32,

s. 3, 4.

Number of witnesses required.] In all cases, except treason and perjury, one witness is all that is required by law, unless otherwise directed by the statute creating the offence; and wherever that is the case, it shall be particularly noticed in the course of this work, under its proper head. In treason, not relating to the coin or seals, there must be two witnesses; in perjury, there must be two witnesses to the same assignment of perjury.

Witnesses, how compellable to attend.] In prosecutions by indictment, the witnesses for the prosecution, who attend before the magistrate at the time the prisoner is committed, are usually bound over to attend at the trial and give evidence ; see ante, p. 236; and for non-attendance, they may be punished by their recognizance being estreated: all other witnesses, on the one side and on the other, may be compelled to attend by subpoena, issued either from the crown office in London, or by the clerk of the peace: if it issue from the crown office, the court of the Queen's Bench may punish the party by attachment, for non-attendance; R. v. Ring, 8 T. R. 585; but if issued by the clerk of the peace, the remedy is, not by attachment, R. v. Brownall, 1 Ad. & El. 598, but by indictment. In appeals also, the witnesses may in like manner be compelled by subpoena, to attend and give their evidence.

Where a party is charged with an indictable offence before a magistrate, if the magistrate be apprised that any person, who can give material evidence against the prisoner, will not voluntarily attend, he may issue his summons to compel his attendance. See ante, p. 235. But in cases of summary conviction, he cannot summon a witness, nor is there any mode of compelling his attendance, unless it be given by the particular statute creating the offence, or regulating the prosecution for it. See ante, p. 268.

If the witness be in custody on civil process, he can only be brought up by writ of habeas corpus.

Witnesses' expenses.] In a criminal case, a witness cannot refuse to give his testimony until his expenses have been paid

to him, even although subpoenaed on the part of the defendant. R. v. James, et al. 1 Car. & P. 322. After they have given their evidence, and the case is determined, if the party on whose behalf they attend be allowed his costs, a sum is usually allowed to him for his witnesses' expenses, at a rate regulated by the table of fees settled by the justices. See ante, tit. "Costs."

EXAMINATION.

See "Commitment."

EXTORTION.

Extortion is the taking of money by any officer, by colour of his office, either where none at all is due, or where he takes more than is due, or where it is not yet due. 1 Hawk. c. 68, s. 1. See R. v. Higgins, 4 Car. & P. 247. It is a misdemeanor at common law, punishable with fine, or imprisonment, or both. See 1 Hawk. c. 68. s. 5.

at

Commitment :-on being then a constable, unlawfully, corruptly, extorsively, and by colour of his said office, did extort and receive of and from one C. D., then in the custody of the said A. B. the sum of · as and for a fee due to him the said A. B. as such constable; [or as the case may be]. And you the said keeper, &c.

FACTOR.

See "Agent."

FACTORY.

See "Manufactures."

FALSE IMPRISONMENT.

False imprisonment is a misdemeanor at common law, punishable with fine, or imprisonment, or both. The slightest detention of a party, or restraint of his personal liberty, against his will, is an imprisonment; and if that be done without lawful authority, it is technically termed false imprisonment. If a constable or other person arrest a man by virtue of a warrant, which is bad on the face of it, or in a case where the justice granting it had no jurisdiction, this will be a false imprisonment; so if a constable or a private person arrest a man, without warrant, in a case in which he has no authority by law to do so, (see ante, p. 116, 117), he is guilty of a false imprisonment; and if a gaoler detain the party thus wrongfully arrested, without a fresh warrant legally justifying him, he will be guilty also. False imprisonment therefore a mixed question of law and fact: whether there was a detention of the party, against his will, amounting to an imprisonment, is a question of fact; see Cant v. Parsons, 6 Car. & P. 504; and whether the authority under which it was effected was lawful, or was such as did not justify the officer or gaoler, &c. in the detention, is a question of law, depending upon the circumstances of each particular case.

Every false imprisonment is said to inlcude an assault and battery.

at

Commitment:-on. didassault and beat one C. D., and did then and there unlawfully and injuriously, and against the will of the said C. D., and without any legal warrant, authority, or reasonable or justifiable cause whatsoever, imprison the said C. D. And you the said keeper, &c.

FALSE PRETENCES.

"If any person shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to cheat or defraud any person of the same:" misdemeanor, transportation for seven years, or such fine or imprisonment or both as the court shall award. 7 & 8 G. 4, c. 29, S. 53.

The false pretence must be a statement of some pretended existing fact, and made for the purpose of inducing the prosecutor to part with his property. Pretending to be sent to the prosecutor for goods by one of his customers, or for the amount of a debt by one to whom he owed it, or for a loan

of money by one of his friends, and thereby obtaining such goods or money: such a case would come within the statute. So if a foreman by falsely pretending to his master that his workmen have earned to a certain amount, obtain that amount from him, whereas in fact they had earned a less sum, and he applied the difference to his own use, this was holden to be within the statute. R. v. Witchell, 2 East, P. C. 830. But where a man induced a butcher to send him meat, under pretence that he would pay for it on delivery: the judges held this not to be a pretence within the meaning of the statute; it was merely a promise for future conduct. R. v. Goodall, R. & Ry. 461. It is not necessary, however, that the pretence should be in words: there may be a sufficient false pretence within the meaning of the act, by the acts and conduct of the party, without any verbal representations of a false or fraudulent nature. As where a man, in payment of some small articles, tendered a forged promissory note for 10s. 6d. in payment, and received the change: the judges held this to be a false pretence within the statute; for the tendering of the note as a genuine instrument, was tantamount to a representation that it was so. R. v. Freeth, R. & Ry. 127, and see R. v. John Story, R. & Ry. 81. If a bill of exchange, or the like, be obtained by false pretences, it must appear to be duly stamped; for otherwise it is not a valuable security within the meaning of the act. R. v. Yates, Ry. & M. 170.

Commitment :-on at --> unlawfully did falsely pretend to one C. D. that [here set out the pretence]; by means of which said false pretence, the said A. B. then and there unlawfully did obtain from the said C. D. -- of the goods and chattels of him the said C. D., with intent then and there to cheat and defraud the said C. D. of the same; against the form of the statute in such case made and provided. And you the said keeper, &c.