And if a party be charged with composing, printing, and publishing a libel, he may be found guilty either of printing or publishing merely (ƒ). "For," as observed by Lord Ellenborough, "this distinction runs through the whole criminal law; and it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified" (g).

With respect to the charge itself in the record on which the prosecutor relies, the material description must always be accurately proved; though unnecessary averments introducing or accompanying it may be rejected as surplusage. Thus, the name of the owner of goods stolen; the name of the party alleged to have been killed (h); the name of the owner of a dwelling-house broken, must always be proved as laid, otherwise the prisoner would be convicted of one offence on a record charging another (i). And a written instrument set out as a libel, must be proved as alleged, and a variance will be fatal. By Lord Tenterden's act, indeed, the courts at Westminster, and courts of oyer and terminer, have power to amend the record on trials of indictments for misdemeanour, where there is a variance between a written instrument as set out and as proved (k); but, as it has been holden that the court of quarter session is not, according to technical acceptation, a court of "oyer and terminer”(7), it seems that this act gives no power of amendment to the sessions; and that, on a variance at sessions, the defendant must still be acquitted.

The Prosecutor must prove the Affirmative.]-In general, the proof of the entire issue, on the plea of not guilty, lies in the first instance on the prosecutor, who must establish every thing essential to the charge. Thus, on an indictment against a parish for not repairing a highway, he must, on the plea of not guilty, show that the way is a public way; that the part stated to be out of repair lies within the parish; and that it is, in fact, out of repair. In general, however, a mere negative averment, though necessary to be alleged by a prosecutor in consequence of the rule of pleading on a statute, need not be proved by him, where the affirmative must be in the knowledge of the defendant; thus, in an information for sporting without a qualification before the late act 1 & 2 W. IV. c. 32 abolished qualification, it was not necessary to show the absence of it, though it must have been negatived in

(f) R. v. Hunt, 2 Campb. 585. (g) Id. ibid. see p. 196.

(k) R. v. Brinklett, 5 C. & P. 416.

(i) Ante, p. 190.
(k) 9 G. IV. c. 15.
(1) Ante, p. 141.

the conviction (m); and on an information for selling ale by retail without due license, it lies on the defendant, when shown to have sold ale, to prove his license (n). Knowledge and intent, when material, must be made out by the prosecutor: he cannot, of course, make them out by direct evidence, unless when they have been confessed; but both may be gathered from the conduct of the party as shown in proof; and when the tendency of his actions is direct and manifest, he must always be presumed to have designed the result when he acted. Counsel for a defendant accused of misdemeanour may, at a trial, dispense with formal proof by the prosecution, but attornies cannot agree to do so previously (o).

SECTION VI.

OF THE DEGREE (OR QUANTITY) OF PROOF REQUIRED TO
SUBSTANTIATE A CHARGE.

Of the Quantity of Proof required.]-The quantity of proof necessary to support a charge must, of course, depend in general on the circumstances of each case, for which no rules can be given. In treason and in perjury, indeed, two witnesses are required; but as neither of these offences is cognizable at the sessions, it is unnecessary to enter into these exceptions. A single witness swearing to the actual crime, or to such facts as necessarily lead to the inference that it has been committed, if unshaken and uncontradicted, is quite sufficient to substantiate the charge. And the prisoner's confession before a magistrate; if made in consequence of a charge against him, and in a direct and positive manner, voluntarily and without promise or threat operating on his mind at the time of making it, is sufficient, standing alone, to be presented to the jury, and for them to convict upon, if they believe it to be true (p); even though there is no proof aliunde that the crime charged was committed (q).

Degree of Proof-Evidence of Accomplice.]—Again, in point of law, as an accomplice is a competent witness, a jury believing his story

(m) R. v. Turner, 5 M. & S. 206.

(n) R. v. Hanson, 4 B. & Ald. 519. On 35 G. III. c. 113, which, being a police act, is not repealed by 48 G. III. c. 143; R. v. Drake, 6 M. & S. 116, or by 9 G. IV. c. 61, s. 35. See id. 318. (0) R. v. Thornhill, 8 C. & P. 575. Perjury.

(p) See further, p. 521. R. v. Wheel ing, 1 Leach, 311, n.; R. v. Eldridge, R. & Ry. 440. See cases collected, Archb. on Cr. Pl. & Ev. 106, 6th ed.

(q) R. v. Falkner and Bond, R. & Ry.

482.

(r) R. v. Attwood, 2 Leach, 521; cited in R. v. Jones, 2 Campb. 132.

might convict on his testimony alone, and such conviction would be valid (r). But it is usual for judges, in the exercise of a sound discretion, to direct the acquittal of a prisoner, unless the accomplice be corroborated by evidence admitting of no suspicion, not as to the whole case, for then the testimony would be needless, but as to such parts as satisfactorily show that he has not fabricated the story. And he should be confirmed in some facts affecting the individuals whom he accuses: e.g. by showing the prisoner and the accomplice together under circumstances which were not likely to have occurred unless there had been concert between them (s); because otherwise his whole narrative may be true in its circumstances, and abundantly confirmed, and yet false as to the alleged actors. But this is a mere matter for the discretion of the court; and there have been instances where, on consideration, it has been deemed proper to convict and to execute prisoners on the evidence of an accomplice who was confirmed as to others of the party, but not as to those executed (t). On the other hand, in a case of great importance (u), where an accomplice swearing positively to several prisoners was confirmed as to some, and not confirmed as to others, Vaughan, B. recommended the jury to acquit the latter, and they were accordingly acquitted, while those as to whom the accomplice was confirmed were convicted and executed. But where, on an indictment against a principal for stealing, and accessories for receiving, the case against the principal was proved by the testimony of an accomplice, who was not confirmed as to the larceny of the principal, but proved the receiving, and was confirmed as to that, all the prisoners were held entitled to acquittal (v).

(8) R. v. Farler, 8 C. & P. 106; where in a case of night poaching, on 9 G. IV. c. 69, s. 9, the only confirmation of the accomplice's testimony was that he and the prisoner were drinking together at a public house, commonly frequented by the prisoner, and left the house together when shut up for the night.

(t) R. v. Dawber, 3 Stark. N. P. C. 34; R. v. Jones, 2 Campb. 133; R. v. Birkett, R. & Ry. 252.

(u) R. v. Field and others, Berks Spring Assizes, 1828.

(v) R. v. Wells and others, Mood. & M. 327, cor. Littledale, J., March 1829.

The note of the learned Reporters rests this decision on the proceeding against the principal being considered as really separate from that against the accessories, and consequently that the prin cipal is to be convicted or acquitted on the same evidence as if he had been indicted alone; so that the accessory (indicted with him, and not separately for a substantive felony, under 7 G. IV. c. 64, s. 9) could only be convicted after the guilt of the principal is established, ibid. See R. v. David Birkett, 8 C. & P. 732; Reg. v. Gould, 9 id. 364.

SECTION VII.

OF THE KIND OF PROOF BY WHICH A CHARGE MAY BE

SUPPORTED.

THE kind of proof by which charges may be sustained includes all relevant facts, evidenced by competent witnesses, which tend to produce a moral certainty of the imputed guilt. It may be positive, as by the direct testimony of a witness who saw the fact; it may be circumstantial, when a number of facts are presented as inconsistent with any other hypothesis than that of the prisoner's guilt; it may be presumptive, when the possession of a stolen article casts on the prisoner the burden of showing how he obtained it; or it may be confessional, when the party himself has admitted the guilt which is in issue. The three first descriptions of proof are merely matters for the decision of the jury; but the last is subject to legal restrictions which we shall briefly notice.

Confessions before Magistrates.]-A confession made by a prisoner when before a magistrate on a charge of felony or misdemeanour is of the highest authority when freely made, even in answer to questions (w). Caution ought always to be used that no promise or threat is employed to induce the prisoner to confess; for either will wholly prevent any confession made during the time when these inducements may be supposed to operate, from being received in evidence. It is well to warn him that what he says will be taken down, and may be used against him, particularly if he has been threatened or cajoled before he was brought before the magistrate (x). In one case where the magistrates' clerk had told a prisoner not to say anything to prejudice himself, as what he said would be taken down and “used for or against him at his trial," this was held to be such an inducement beld out to him as would prevent his statement from being admitted in evidence (y). That which he voluntarily says ought to be taken down carefully in writing in his exact words, by the magistrate or his

(w) R. v. Ellis, R. & M. N. P. C. 432; R. v. Wilson, Holt, 597; R. v. Thornton, id. 27.

(x) See R. v. Cooper, 5 C. & P. 535. It is better, as a general rule, that a police constable should abstain from asking questions of a person in his custody, except after cautioning him that his answers will be evidence against him, R. v. Kerr, 8 C. & P. 176. In some cases a contrary course may be proper, ibid.

(y) R. v. Drew, 8 C. & P. 140.

Regina v. Banks, 8 C. & P. 621. Lord Denman.-"The frequent warnings given to prisoners not to say any thing that may criminate themselves, renders it necessary for me to set right a prevalent error on that subject, and to state what I conceive to be the proper course of proceeding.

A prisoner is not to be entrapped into making any statement; but when he

clerk, and, when ended, read over to him; when, if assented to as correct, it should be offered to him for signature. Where all these precautions are observed, and the prisoner has signed or made his mark to the paper, the confession so authenticated ranks among the most satisfactory species of evidence on which a jury can act. If the authentication be incomplete, as, if the prisoner, having made his statement, refuses, or the magistrate neglects, to sign it (z); or if by inadvertence it is not tendered for signature, and even if it be clearly shown that it was never reduced into writing at all, what the prisoner said at his examination may be received on the evidence of parties present, though subject to all the deductions in point of authenticity and weight which the circumstances occasioning its imperfection may imply (a).

But before oral evidence of a confession made on examination before a magistrate can be received at all, it must be affirmatively shown that the statement was not reduced into writing; because, if it was, such writing is the highest evidence; and it is to be presumed, until the contrary be shown, that the magistrate performed his obvious and cogent duty under 7 G. IV. c. 64, s. 2 (b). Parol evidence may in general be given of what the prisoner said, if proved to have been omitted from an examination signed by him and the magistrate (c).

is willing to make a statement, it is the duty of magistrates to receive it. Before doing so, they ought entirely to get rid of any impression that may have before been on the prisoner's mind, that the statement may be used for his own benefit and he ought to be told that what he thinks fit to say, will be taken down, and may be used against him on his trial." Verdict, Guilty.

Regina v. Wilkinson, 8 C. & P. 662. On 10 November minutes were taken of the evidence, and prisoner made a statement, which was taken down in writing by the magistrate's clerk.

On 14 November the depositions were taken down formally, and signed by the witnesses. The magistrate added at the end of them, "The prisoner, being advised by his attorney, declines to say any thing."

Held, that the statement made on the 10th might be given in evidence for prosecution by the clerk who took it down, as whatever the prisoner said is evidence, though a magistrate may have neglected his duty in not returning it with the depositions. (Littledale, J., and

Parke, B.) after R. v. Walters, 7 C. & P. 267, cor. Lord Abinger, had been cited contra. See Reg. v. Sarah Taylor, 8 C. & P. 733.

(z) R. v. Lambe, 2 Leach, 552, 555. (a) Ibid. R. v. Reed, M. & M. 403. The magistrate or his clerk may give the evidence, refreshing his memory by the notes, R. v. Jones, Carr. C. L. 13; (so held by three judges). So, perhaps, if the writing be lost or destroyed, &c. See 2 Leach, 582, R. v. Lambe.

(b) Phillips v. Wimburn, 4 C. & P. 273; R. v. Jacobs, 1 Leach, 310; R. v. Fearshire, id, 202, ante, p. 513. See the act set out, ante, p. 7, 8.

(c) R. v. Harvey, 1 Mood. C. C. 338. But where, on the examination before the magistrate of several persons charged with felony, the magistrate's clerk, in taking down their statements, had left a blank where either had mentioned the name of another of them, Patteson, J., refused to allow them to be supported by parol evidence of the clerk as supplementary evidence, Reg. v. Morse et al. 8 C. & P. 605.