CHAP. IV. CEEDINGS, &c. The evidence In general, the particular act creating the offence or making SUMMARY PRO- it punishable by summary proceeding, contains some express directions about the witnesses and evidence; as that the party and witnesses. aggrieved shall be competent to be a witness in support of the charge, but then that he shall not receive more than the costs of the proceeding; (z) or that inhabitants of the parish or district, although to be remotely benefited in an almost imperceptible degree by the penalty being applicable in aid of the county rate. When the statute is silent, the admissibility of the evidence will be governed by general principles and rules, the statement of which would be beyond the limits of this work. As a general rule, however, it is to be kept in view, that whenever the complainant or informer would derive any direct benefit from a conviction, his interest precludes him from giving evidence in support of the proceeding, (a) unless it be expressly otherwise directed; and this is one reason why it has been decided that convictions should state the names of the witnesses, so that it may appear that the informer was not one of them. (b) But the small advantage to a witness as the inhabitant of a parish, to whom a penalty is given, does not now constitute any objection to his evidence; (c) and all the late acts, we have seen, render the inhabitant of a county admissible as a witness, though the penalty is to be paid in aid of the county rate. (d) Oath of wit ness. The same oath should be administered to each witness as on the trial of an action; and it is established that in support of a summary charge all the evidence must be on oath (e) duly administered, and in the presence and hearing of the defendant, if he appear; and if the justice proceed otherwise, he will be liable to a criminal information. (f) It is clear that a justice of the peace has not jurisdiction to commit a person for contemptuously refusing to take an oath and give evidence touching a charge of an offence not indictable, if even he could do so upon a charge of riot; and where a party was committed by a justice "for refusing to give evidence be"fore him touching a certain riot and disturbance," without showing that there had been a person charged before the justices, and that the witness was apprised of the existence of such charge, with respect to which he was required to be examined (z) 7 & 8 G. 4, c. 29. s. 66; id. ch. 30. s. 29; 1 & 2 W. 4, c. 32. (a) R. v. Gobbold, Gilb. Cases, 111 R. v. Drake, 2 Show. 476. (b) R. v. Gobbold, Gilb. 111; Rex v. Drake, 2 Show. 476. (c) 27 Geo. 3, c. 29; Rex v. Davis, ; 6 T. R. 177. (d) 9 G. 4, c. 31; 7 & 8 Geo. 4, c. 29; id. ch. 30; and 1 & 2 W. 4, c. 32. (e) R. v. Corder, 4 Burr. 2279. (f) R. v. Vissont, 2 Burr. 1163; R. v. Constable, 7 Dowl. & Ry. 663; R. v. Crowther, 1 Term R. 125. as a witness, it was held that the warrant of commitment was no justification of the magistrate in an action of trespass. (h) When the conviction states, as it should do, the names of the witnesses, and that they were sworn before the justice, it will be inferred that they were duly sworn.(i) A magistrate cannot be required to hear evidence which ought not to affect his determination. (k) But if he should incorrectly refuse to hear a competent witness for the defendant, his subsequent conviction may be removed by certiorari, and quashed. (7) CHAP. IV. SUMMARY PRO CEEDINGS, &c. The examination of witnesses, as indeed all the proceedings, Mode of exashould be conducted as nearly as practicable the same as in the mination, &c. superior Courts; and the rule there observed that leading questions shall not be put to a witness, so as to suggest favourable and probably incorrect answers, so accords with justice, that it should be observed before magistrates with the utmost strictness. Justices, however, should be particularly cautious not to be led from the full investigation of truth by too strict an adherence to the rules of evidence, with which they may have become informed by a legal education or particular study, at least when probably the observance of those rules would prevent them from attaining full information upon every subject; the more especially as those rules have of late been much qualified, as will be found in the subsequent chapter upon evidence. Thus it has been a supposed rule, that a party cannot contradict his own witness; and yet it has been lately decided, that if a witness gave evidence against the interest of the party who called him, such party may now nevertheless bring other witnesses, not indeed merely to discredit him generally, but to contradict him on the fact he has deposed, if it be material to the matter under investigation, though not so if it be merely collateral. (m) The same decision would authorize an informer or defendant to call successive witnesses to establish a fact, although a witness previously called by him had unexpectedly sworn the contrary. (m) the evidence However irksome it may be, it is nevertheless the duty of Mode in which magistrates, as well at common law as under the 3 Geo. 4, c. 23, must be taken upon all summary proceedings, whether for penalties incurred down. under the preceding acts or for any other penalty, or in any case where the proceeding may terminate in a conviction, to cause his clerk to take down the evidence verbatim in the language of the witnesses, not perhaps all the exact words, but the (h) Cropper v. Horton, 4 Dowl. & Ry. Mag. Cases, 42. (i) R. v. Selway, 2 Chitty's R. 522 ; R. v. Picton, 2 East, 195; R. v. Glossop, 4 B. & Ald. 616. (k) R. v. Minshul, 2 Nev. & Man. Rep. 277. (1) R. v. ——, 2 Chitty's R. 137. (m) Friedland v. London Assurance Company, 4 B. & Adolph. 193. CEEDINGS, &c. CHAP. IV. whole of the very words that are material, and these not in the SUMMARY PRO- terms of the statute, but in the natural and actual expressions of each witness; (m) and the difficulty of so doing is no excuse for the omission. (n) It is recommended that the questions and answers be taken down precisely in the words and tense in which they are uttered, and that in cases of importance the evidence be immediately afterwards read over by the magistrate to the witness, and he be asked whether he has any thing to add or explain or qualify. It has repeatedly been held, that justices should not allow depositions to be framed in the words of a statute under which the party is charged or committed, but as nearly as may be in the very words used by the witness; (o) and it is very irregular to take down the examination of a witness before he has been sworn, and afterwards to swear him to the truth of the statement; for the testimony at the very time it is given should be under the influence of the oath, and in the presence of the defendant, who may put questions to the witness altering the effect of his first statement. (p) When the statute upon which the proceeding is founded does not prescribe another form of conviction, the general act, 3 Geo. 4, c. 23, applies, and then expressly requires the justice to state in the conviction "the evidence, and as nearly as pos"sible in the words used by the witness, and if more than one "witness be examined, then the evidence given by each;" and if the magistrate should neglect to frame his conviction accordingly, he may be compelled to comply by mandamus;(q) so that the proper course is for the justice to take down all the questions as well as the answers of the witnesses, in the very words used by them, and in the form that was adopted before commissioners of bankrupt. (r) And if a statute state that if a party be convicted upon the oath of a credible witness, he shall be punished in a prescribed manner, it is not sufficient for the conviction to state that the party was convicted of the offence, but it must expressly state that he was so convicted "on the "oath of a credible witness." (s) In general, the evidence must state the facts upon which the conviction is afterwards founded, and not merely the result; and (m) R. v. Marsh, 2 B. & Cres. 717; and 4 Dowl. & R. 260, S. C. (n) Id ibid. (0) Ante, 165, 172, 3; Miles v. Gollett, 2 Man. & Ry. Mag. Cas. 262; In re Rix, 2 Dowl. & R. Mag. Cases. 251; Cohen v. Morgan, 6 Dowl. & R. 9. (p) R. v. Kiddy, 4 Dowl. & Ry. 734; R. v. Hall, 1 T. R. 320; 2 Burr. 1163. (q) R. v. Marsh, 2 B. & Cres. 717; 4 D. & R. 264, S. C.; and In matter Rix, id. 352; R. v. Warnford, 5 Dowl. & Ry. 489. (r) See also ante, 172, 3. (s) Ex parte Aldridge, 2 B. & Cres. 600; 4 Dowl. & Ry. 83, S. C. CHAP. IV. SUMMARY PRO therefore where a conviction on 45 Geo. 3, c. 121, s. 7, for carrying and conveying foreign brandy in half ankers, merely CEEDINGS, &c. alleged to be "then and there liable to forfeiture," the said offence being committed against the provisions of the acts for the prevention of smuggling, this was held insufficient, for not showing the particular grounds of forfeiture; (/) and if a justice perversely and wilfully state the evidence in terms different in substance from that which was really given, he may be proceeded against by criminal information. (u) The circumstance of the evidence varying in time or place from the information, we have seen, will not in general be material; and if in other respects it suffice, the justice should convict. (2) In the case of a criminal charge, it has been laid down that The defence. if a prisoner be brought before a magistrate, his statement of the facts ought not to be taken till the evidence against him has been gone through, and he should be then asked if he has any thing to say in answer to the charge, (w) and be cautioned that if he make any statement, it may be used against him, and that he must not expect any favour if he confess; (x) and Mr. Baron Garrow censured the practice of taking a statement from a prisoner, who should only be asked if he wish to say any thing in answer to the charge, when he had heard all that the witnesses in support of it had to say against him; but at the same time a magistrate need not dissuade him against confessing. (y) Perhaps these suggestions should also be observed in cases even of summary proceedings. fence. With respect to the defendant's evidence, although we have Evidence in seen that sometimes the information must negative that the de- support of defendant was protected or privileged by any exemption in the enacting clause, yet it has frequently been decided that the informer need not adduce any negative evidence; (*) and the late Game Act, 1 & 2 W. 4, c. 32, expressly enacts that the defendant shall prove a licence or exemption, &c. (u) Independently of a denial of the facts charged at common Defence under law, and also expressly so under the recent acts, if the defendant bond fide claim (1) Ex parte Smith, 3 D. & Ry. 461. (u) R. v. Pearce, 9 East, R. 358. (v) Ante, 162, 3; Bunb. 223, 262. (w) R. v. Fagg, 2 Man. & Ry. Mag. Cases, 517. (x) R. v. Green, 5 Car. & Pa. 312. (z) R. v. Turner, 5 M. & S. 206; R. v. of right. SUMMARY PRO CHAP. IV. make it appear, by cross-examination of the complainant's witCEEDINGS, &c. nesses or by his own, that there was a bonâ fide claim of right, in asserting which the act was committed, then a justice or justices ought not to proceed, but should dismiss the complaint and leave the complainant to try the question in an action. (c) But the claim must not be merely colourable, but made under circumstances inducing at least a reasonable ground for supposing that it may be established; (d) and cases of this nature are, as we have seen, provided for by the three recent acts. (e) Postponing the decision of the justices, and Although there is not, it is believed, any express decision on the subject, it should seem that after the evidence on both sides presence of all has been closed, a justice or justices may take time to consider the justices together at the of his decision. (f) But then if two justices must convict, time of de ciding. they should be present together when they do resolve upon the conviction, so that the parties may have the benefit of their compared, considered, and discussed judgments and decision; and it will be proper for the justices to give the complainant and the defendant reasonable notice of the intended time and place when the justices will decide, so that they may be present if they should think fit, and hear their verbal judgment, and receive a copy of their conviction if they should so decide. In deciding, they are the sole judges of the weight of the evidence; and when the conviction is set out, if upon the face of their conviction, there be the least evidence that upon the trial of an action might have been left to a jury, then however slight, the Court of King's Bench will not interfere with their conviction, though perhaps they themselves might have drawn a different conclusion; as where upon an information under the then game laws, it was merely proved that the defendant walked across a field out of a footpath, as if in pursuit of game, or levelled his gun at game; (g) and on the other hand, if a magistrate should dismiss a charge after hearing evidence that might have justified a conviction, the Court also will refuse to interfere; (h) for only the justices are to judge of the degree of credit to be extended to each witness, and are not to be influenced alone by the exact words that may have been sworn. (7) The charge being of a criminal nature, all the rules relating to (c) Kinnersley v. Orpe, Dougl. 500; (e) 7 & 8 Geo. 4, c. 29; id. ch. 30; (f) Semble, Lord Raym. 1514; 1 Salk. 352; 1 East, 486. (g) R. v. Davis, 6 T. R. 178; R. v. Reason, 6 T. R. 376; R. v. Smith, S Term R. 590; R. v. Ridgway, 5 B. & Ald. 127; 1 Dowl. & R. 132; Paley Conv. 53. (h) Id. ibid. (i) Id. ibid. |