and be imprisoned for any time not exceeding seven days, unless he shall in the meantime consent to be examined and to answer concerning the premises.

FORMS.

Whereas information hath been laid before the undersigned, [one] of her Majesty's justices of the peace in and for the said [county] of that A. B. [&c. as in the summons or warrant against the accused]; and it hath been made to appear to me upon [outh] that you are likely to give material evidence for the [prosecution]: These are therefore to require you to be and to appear before me on next, at - o'clock in the forenoon, at -, or before such other justice or justices of the peace for the same county as may then be there, to testify what you shall know concerning the said charge so made against the said A. B. as aforesaid. Herein fail not. Given under my hand and seal, this day of in the year of our Lord in the [county] aforesaid. J. S. (L. s.)

To the constable of
[county] of

- at

and to all other peace officers in the said

at

Whereas information having been laid before (c) the undersigned, [one] of her Majesty's justices of the peace in and for the said [county] ofthat A. B. [&c. as in the summons]; and it having been made to appear to [me] (d) upon oath that E. F. of -[labourer] was likely to give material evidence for the prosecution, I did duly issue my summons to the said E. F., requiring him to be and appear before me on or before such other justice or justices of the peace for the same county as might then be there, to testify what he should know respecting the said charge so made against the said A. B. as aforesaid: And whereas proof hath this day been made before me (e) upon oath of such summons having been duly served upon the said E. F.; And whereas the said E. F. hath neglected to appear at the time and place appointed by the said summons, and no just excuse has been offered for such neglect: These are therefore to command you to bring and have the said E. F. before me at o'clock in the forenoon, at —, or before such other justice or justices of the peace for the same [county] as may then be there, to testify what he shall know concerning the said charge so made against the said A. B. as aforesaid. Given [&c. as (L 1)].

on

(c) Or "J. S., esquire, one," &c.

(d) Or" the said justice."

(e) Or "me the undersigned, as one of such justices aforesaid."

To the constable of
[county] of

and to all other peace officers in the said

Whereas information hath been laid before the undersigned, [one] of her Majesty's justices of the peace in and for the said [county] of that [&c. as in summons]; and it having been made to appear to [me] upon oath that E. F. of [labourer] is likely to give material evidence for the prosecution, and that it is probable that the said E. F. will not attend to give evidence without being compelled so to do: These are therefore to command you to bring and have the said E. F. before me on

o'clock in the forenoon, at

or before such other jusat tice or justices of the peace for the same [county] as may then be there, to testify what he shall know concerning the said charge so made against the said A. B. as aforesaid. Given [&c. as (L 1), ante, p. 316.]

,

(L 4) Commit-
ment of a wit-

for be sworn to
ness refusing to
give evidence.

and to the keeper of the [house of correcTo the constable of tion] at in the said [county] of Whereas A. B. was lately charged before the undersigned, [one] of her Majesty's justices of the peace in and for the said [county] of that [&c. as in the summons]; and it having been made to appear to [me] was likely to give material evidence for the upon oath that E. F. of prosecution, I duly issued my summons to the said E. F., requiring him or before such other justice or justo be and appear before me on tices of the peace as should then be there, to testify what he should know concerning the said charge so made against the said A. B. as aforesaid; and the said E. F. now appearing before me [or "being brought before me by virtue of a warrant in that behalf, to testify as aforesaid"], and being required to make oath or affirmation as a witness in that behalf, hath now refused so to do [or "being duly sworn as a witness, doth now refuse to answer certain questions concerning the premises which are here put to him"], without offering any just excuse for such his refusal: These are in the county therefore to command you the said constable to take the said E. F., and him safely to convey to the [house of correction] at, aforesaid, and there deliver him to the said keeper thereof, together with this precept; and I do hereby command you the said keeper of the said [house of correction] to receive the said E. F. into your custody in the said [house of correction], and him there safely keep for the space of days, for his said contempt, unless he shall in the meantime consent to be examined and to answer concerning the premises; and for your so Given [&c. as (L 1), ante, doing this shall be your sufficient warrant. p. 316.]

SECT. 5. THE PRELIMINARY EXAMINATION.

not an open

court.

The room or building in which the justice or justices shall Place of hearing take the examinations and statement of the accused shall not be deemed an open court for that purpose; and it shall be lawful for such justice or justices, in his or their discretion, to order that no person shall have access to, or be or remain therein, without the consent or permission of such justice or justo him or them that the ends of justice will be tice, if it appear best answered by so doing (s. 19) (a).

As to variances misleading the party charged, entitling him Variances. to adjournment of the examination, see ante, s. 9, p.

306.

It will be seen by s. 3, ante, p. 309, that where the person In cases where charged is apprehended after indictment found, and brought indictment

An accused is not en-
(a) The practice was the same before this statute.
titled as of right to the assistance of an attorney on this examination.

found.

Examination in

• P. 321.

before a justice, no examination of witnesses is necessary, but merely a deposition that he is the same person as indicted.

S. 17 enacts, that in all cases where any person shall appear ordinary cases. or be brought before any justice or justices of the peace charged with any indictable offence, whether committed in England or Wales, or upon the high seas, or on land beyond the sea, or whether such person appear voluntarily upon summons, or have been apprehended with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit such accused person to prison for trial, or before he or they shall admit him to bail, shall, in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement (M)* on oath or affirmation of those who shall know the facts and circumstances of the case, and shall put the same into writing, and such depositions shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same; and the justice or justices before whom any such witness shall appear to be examined as aforesaid shall, before such witness is examined, administer to such witness the usual oath or affirmation, which such justice or justices shall have full power and Deposition to be authority to do; and if upon the trial of the person so accused as first aforesaid it shall be proved, by the oath or affirmation of any credible witness, that any person whose deposition shall have been taken as aforesaid is dead, or so ill as not to be able to travel, and if also it be proved that such deposition was taken in the presence of the person so accused, and that he or his counsel or attorney (aa) had a full opportunity of cross-examining the witness, then, if such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof, unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same.

read if witness

dead, &c.

Witnesses of

It would be always desirable, where a person of weak intelweak intellect. lect is examined before a magistrate in a case of felony, that the magistrate's clerk should take down in the depositions the questions put by the magistrate, and the answers given by the witness, as to the witness's capacity to take an oath. (Wilde, C. J., R. v. Painter, 2 C. & K. 319; S. C. 2 Cox, C. C. 244.) named throughout the

(aa) This is the only section in which an attorney statute. (Vide s. 19, ante, p. 317, and the note thereto.)

Every thing material occurring before the magistrate should Observations be taken down, and returned with the depositions, as where the by accused. prisoner interposes an observation which is material; but if such observation be not so taken down, no evidence at the trial will be allowed to be given of it. (Per Platt, B., R. v. Weller, 2 C. & K. 223.)

The justices are not bound to receive evidence offered for a Evidence for a prisoner. prisoner, but if he be charged with having stolen property, and gives a reasonable account of how he came by it, and refers to some person as the person from whom he received it, the magistrate should send for and examine that person with a view to exonerate or to contradict the accused. (Per Alderson, B., R. v. Cronhurst, 1 C. & K. 370; per Denman, C. J., R. v. Henry Smith, 2 C. & K. 207.) (See s. 25, p. 320.)

caution.

By s. 18, after the examinations of all the witnesses on the Statement of part of the prosecution as aforesaid shall have been completed, accused. the justice of the peace, or one of the justices, by or before whom such examination shall have been so completed as aforesaid, shall, without requiring the attendance of the witnesses (b), read or cause to be read to the accused the depositions taken against him, and shall say to him these words, or words to the like effect: (6 Having heard the evidence, do you wish to say Form of any thing in answer to the charge? you are not obliged to say any thing unless you desire to do 80, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial;" and whatever the prisoner shall then say in answer thereto shall be taken down in writing (N)* and * P. 322. read over to him, and shall be signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned; and afterwards upon the trial of the said accused person the same may, if necessary, be given in evidence against him, without further proof thereof, unless it shall be proved that the justice or justices purporting to sign the same did not in fact sign the same provided always, that the said justice or justices, before Proviso. such accused person shall make any statement, shall state to him, and give him clearly to understand, that he has nothing to hope from any promise of favour, and nothing to fear from

(b) If the examination is adjourned, the witnesses examined should be bound over to attend on the adjournment day, as the prisoner may wish, and has a right, to ask them any questions before the completion of the inquiry. Vide post, p. 321, form of examination (M 1), where same continued on remand day.

Discharge accused, or commit him, or take bail.

• P. 322.

Copies of depositions for prisoner.

part

any threat which may have been holden out to him to induce
him to make any admission or confession of his guilt, but that
whatever he shall then say may be given in evidence against him
upon his trial, notwithstanding such promise or threat(bb):
provided nevertheless, that nothing herein enacted or contained
shall prevent the prosecutor in any case from giving in evi-
dence any admission or confession or other statement of the
person accused or charged, made at any time, which by law
would be admissible as evidence against such person.
When all the evidence offered upon the
of the prose-
cution against the accused party shall have been heard, if the
justice or justices of the peace then present shall be of opinion
that it is not sufficient to put such accused party upon his trial
for any indictable offence, such justice or justices shall forth-
with order such accused party, if in custody, to be discharged
as to the information then under inquiry; but if, in the opinion
of such justice or justices, such evidence is sufficient to put the
accused party upon his trial for an indictable offence, or if the
evidence given raise a strong or probable presumption of the
guilt of such accused party, then such justice or justices shall,
by his or their warrant (T1),* commit (c) him to the common
gaol or house of correction for the county, riding, division,
liberty, city, borough or place to which by law he may now be
committed, or, in the case of an indictable offence committed
on the high scas, or on land beyond the seas, to the common
gaol of the county, riding, division, liberty, city, borough or
place within which such justice or justices shall have jurisdic-
tion, to be there safely kept until he shall be thence delivered
by due course of law, or admit him to bail as hereinbefore (d)
mentioned (s. 25). (See ante, p. 319, as to "Evidence for a
Prisoner.")

At any time after all the examinations have been completed, and before the first day of the assizes or sessions or other first sitting of the court at which any person committed to prison or

(bb) It seems also, from various opinions, to be necessary that the purport of this proviso should be stated to the prisoner by the justice. In the statement (N), post, p. 322, the necessary alteration is made. (See Law Times of 21st October, 1848; Saunders's Edition of Act, p. 35.)

(c) See post, p. 335, "costs of prosecution, &c." as to the application of money in possession of the accused at the time of committal.

(d) In sect. 23; see post, p. 331, as to" bailing accused after examination," and in what cases where committed a certificate of consent to bail must be given by the committing magistrate. A register of persons committed or held to bail for indictable offences should be kept at each petty sessions; vide form (U), post, p. 323. Vide also note (a), p. 327, as to where the accused can be tried.