Printer, are allowed as evidence of such acts and articles.

A prosecutor may call on the prisoner to produce certain documents in his possession, such as orders, instructions, &c.,—and which may be required as evidence to substantiate the charges. If the prisoner refuse to produce the original papers, the prosecutor may adduce parol evidence of their contents, and exhibit properly authenticated copies of such originals. So, also, the prisoner may require from the prosecutor such documents in his possession as may be considered necessary for the defence; and in the event of their being refused, he has the same privilege as the prosecutor of resorting to parol evidence and copies.

CHAP. VII.

PAROL EVIDENCE.

Evidence. Parol Evidence.

Must be of Facts within the personal Knowledge of the Witness. In Matters of Science. Idiots and Lunatics. Persons deaf and dumb. Infants. Witness not to be rejected on the Ground of Crime or Interest. Evidence of Accomplice Lord Chief Justice Holt on the Evidence of Accomplices. - Husband and Wife. - Persons cohabiting together, but not married. Witness not bound to criminate himself.-In what Cases hearsay Evidence may be received. Dying Declarations. Evidence of sedi

admissible.

tious Speeches.

PAROL evidence cannot be received where there is written evidence to prove the facts in issue.

Parol evidence cannot be received of anything which is not within the personal knowledge of the witness: he must depose to facts that occurred within his presence or hearing; but in a matter of science a person may be called to prove the probable result of certain facts already proved.*

An idiot is not allowed to give evidence; neither is a lunatic, unless during a lucid interval. A person who is deaf and dumb may give evidence through a sworn interpreter who understands his * Archbold, 142.

signs. An infant may be examined, provided he understands the sanctity and obligation of an oath. By the statute 6 & 7 Vict. cap. 85. sect. 1., it is provided that no person offered as a witness shall be excluded by reason of incapacity from crime, or interest, from giving evidence, either in person, or by deposition, according to the practice of the Court, on the trial of any issue found, or of any matter or question, or any inquiry arising in any suit, action, or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, or person, having by law, or by consent of parties, authority to hear, receive, and examine evidence; but every person so offered may and shall be admitted to give evidence on oath, or solemn affirmation, in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or inquiry, or of the suit, action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence.*

The evidence of an accomplice is admissible, even although he should avow himself to have participated in the crime of which the prisoner stands charged; but the Court should hesitate to convict under such evidence unless it be supported by other testimony. It must here be remarked that the dis* Archbold, 143, 144.

tinction between a legal witness and a good one is a question for the members of the Court to decide, which every man will do according to the best of his judgment. Lord Holt, speaking of the evidence of accomplices, said, "Conspiracies are deeds of darkness as well as of wickedness, the discovery whereof can properly come only from the conspirators themselves; and the evidence of accomplices has been allowed good proof in all ages, and they are the most proper witnesses, for otherwise it is hardly possible, if not altogether impossible, to have a full proof of such secret contrivances." *

In some cases where the privacy of the offence renders it difficult of proof, it may be necessary to permit one of the offenders to be an evidence for the prosecution, on the express or implied condition that if he make a full and complete discovery of the particulars of the matter under investigation he shall not himself be subject to prosecution on account of the crimes he may have committed in connection with the prisoners. If the accomplice fail to make a fair and perfect disclosure, he loses his claim to protection, and remains liable to be tried and punished. Although in a strictly legal point of view, the evidence of an accomplice is alone sufficient to warrant a conviction, the just and merciful practice in criminal courts is not to convict a prisoner unless such evidence be confirmed by other and less objectionable testimony. A husband may not give evidence in a case af* 1 Phillips, 27.

fecting his wife; neither may a wife give evidence in a case affecting her husband: there are a few exceptions to these rules, but they are immaterial in the cases likely to be brought under the cognizance of courts-martial. Parties cohabiting together, but not actually married, are competent witnesses for or against each other. Evidence of relations (except husband and wife) for or against each other is admissible. A witness is not bound to give evidence that may criminate himself: whether or not it will have that tendency is a question for the decision of the Court; and while guarding the witness in this privilege which the law allows him on the principle of self defence, they must be careful that he does not assert his right to the detriment of justice: they must be satisfied that the probable answer to the question proposed would subject him to a prosecution; and he cannot be permitted to withhold his evidence on the ground that his private interests are likely to suffer by the testimony he is called upon to give. A witness cannot be compelled to make disclosures which would be prejudicial to public interests.

An infant of any age may be a witness, provided such infant appear to understand the nature and moral obligation of an oath: an objection to the evidence of an infant must be on the ground of a want of understanding, not of age.

It has been before remarked that parol evidence cannot be received of anything which is not within the personal knowledge of the witness: there are,