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prisoner, are competent and compellable to give evidence in every court of justice concerning the matters in issue.1

The persons not competent to be witnesses pointed out by this rule are

1. Idiots.

2. Lunatics.
3. Children.
4. Infidels.

5. Prisoner.

6. Husband or wife of prisoner.

Each of these classes requires to be noticed separately; but it may be here stated that the question of competency of the witness is one to be decided solely by the coroner on a preliminary examination. This preliminary examination is called the examination on the voir dire,2 and formerly it was held that no objection to the competency of witnesses could be made except upon the voir dire; but it appears that now a witness may be declared incompetent, and his evidence rejected at any time during the examination.3

There are various causes which may affect the credibility of a witness, but a blemish of this kind must not exclude the witness, and the amount of credit due to his testimony the jury will be the judges of.

1. Idiots, or those who never have had any understanding from their birth, are incompetent to The prisoner and his wife or husband are now competent but not compellable to give evidence. See the Canada Evidence Act, 1893, 8. 4, Dom.

2 See form No. 35.

3 Jarvis O. C. 261.

give evidence. Persons born deaf, dumb and blind, are looked upon in law as idiots. But this is a legal presumption which may be done away with by proof of understanding and sufficient religious belief. Deaf and dumb persons, if found competent, may give evidence by signs, or through an interpreter, or in writing, or in any other manner in which they can make themselves intelligible.1

2. Lunatics are those who, having had understanding, have lost their reason, by disease, grief or other accident. They are only competent wit

nesses during lucid intervals.

If

3. Children. The age of the child is immaterial, when judging whether or not he is competent of being a witness. The criterion in cases under the jurisdiction of coroners is his religious belief. he has such a knowledge of the obligation of an oath, as to understand the religious and secular penalties of perjury, he is competent-otherwise not. Where there is any doubt as to a child's competency, the practice is for the coroner to examine him as to his knowledge of the effect in this world and in the next of taking a false oath, and for the coroner on such examination to decide whether the child is competent or not.

Where a child is not competent and cannot be sworn, of course what he has said to others about the matter of inquiry is inadmissible.

Since the passing of the Canada Evidence Act, 1893, when a child of tender years is tendered as

11 H. P. C. 34; 1 Leach. C. C. 455; 3 Car. & P. 127; The Canada Evidence Act, 1893, s. 6, Dom.

a witness, and such child does not in the opinion of the coroner understand the nature of an oath, the evidence of such child may still be received though not given upon oath if in the opinion of the coroner such child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. But no case is to be decided upon such evidence alone, as it must be corroborated by some other material evidence.1

4. Infidels.-Infidels who do not believe in God, or if they do believe in God do not think that He will either reward or punish them in this world or in the next, cannot be witnesses, as an oath is no tie or obligation upon them, but if they do believe in God and that he will so reward or punish them, they are competent as witnesses. The only means at disposal of the coroner for determining whether a proposed witness is such an infidel as to be incompetent to give evidence, is to question him upon the void dire,3 as to whether he believes in God, a future state of rewards and punishments, and the sanctity of an oath. If his answers are orthodox, he must be admitted. Infidels such as Gentoos, who believe in a God the avenger of falsehood, can be received as witnesses.4

p. 22.

156-57 V. c. 31, s. 25, Dom.

2 Omichund v. Barker, Willes, 538; 1 Sm. L. C. 194; Powell on Evi.

3 See Form No. 35.

Omichund v. Barker, Willes, 538; but see section 23 of the Canada Evidence Act, 1893, which may have the effect of admitting infidels to affirm.

5. Prisoners. The prisoner and the wife or husband of the prisoner are now competent, but not compellable to give evidence,1 and accomplices are admissible to give their evidence for what it is worth. A settled principle with regard to the evidence of accomplices is, that a prisoner ought not to be convicted upon the evidence of any number of accomplices, if unconfirmed or uncorroborated by other testimony. The testimony of the wife of an accomplice is not a proper confirmation of his statement. The confirmation need not be in every particular, as long as it is sufficient to satisfy the jury that the evidence is worthy of credit. The accomplice's evidence ought, however, to be corroborated with regard to the identity of the prisoner, so as to satisfy a jury that the prisoner is the person who committed the crime which is charged against him by the accomplice.5

3

A confession made by a prisoner to be admissible as evidence against him, must be proved by the prosecution affirmatively to have been free and voluntary, and not caused by inducement proceeding from a person in authority. If it flows from hope or fear, excited by a person in authority, it is inadmissible."

6. Husband or wife of prisoner.-Husbands and wives of persons charged are now competent, but not compellable, to give evidence, but the

1 The Canada Evidence Act, 1893, s. 4.

25 C. & P. 236.

37 C. & P. 168.

Jervis, O. C. 260.

58 C. & P. 107.

6 The Queen v. Thompson, L. R. C. C. R. Weekly Notes, 1893, p. 86.

failure of the person charged or of the wife or husband of such person to testify, is not to be made the subject of comment by the coroner or by counsel for the prosecution in addressing the jury,1 and in the case of a wife mortally injured by her husband, her dying declarations, if not otherwise inadmissible, are evidence against him; as are also the dying declarations of the husband against the wife, under similar circumstances. And after a divorce a vinculo matrimonii, either husband or wife can give evidence for or against the other.1

3

2

7. Coroners.-The better opinion seems to be that a judge cannot be a witness and a presiding judge at the same trial, and the same objections which are applicable to a judge would naturally apply to a coroner. The cases are reviewed by ARMOUR, C.J., in his instructive judgment in Reg. v. Petrie, 20 Ont. R. 317. Where there is any chance of a coroner being required as a witness, he should decline holding the inquest.

8. Jurors.-Members of the coroner's jury can be called as witnesses on the inquest, but they must be sworn as other witnesses. It is better, however, to avoid calling jurors who may be wanted as witnesses, since ARMOUR, C.J., pointed out in Reg. v. Petrie 20 Ont. R. at p. 320, there are grave objections to a juror being sworn as a witness.5

1 The Canada Evidence Act, 1893, s. 4.

2 1 East. P. C. 357.

31 East, P. C. 455.

4 Peake's Evid. App. p. 39.

51 Salk 405; Roscoe 135; Reg. v. Winegarner, 17 Ont. R. 208.

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