facie case of guilt against the prisoner as to warrant his sending the case to a jury; and if they should appear to him not to do so, he should inform the prosecutor thereof, and discharge the prisoner, unless the former should satisfy him that additional testimony can be adduced at a future day, or that there is some other reasonable cause why it is advisable to defer the further examination of witnesses to a future time; in such case the Justice should remand the prisoner by warrant (form in Act 1, Schedule Q 1, p. 66) for further examination on a future day, not exceeding eight clear days,(u) to be fixed so as to suit the convenience of the parties. When, however, the remand is for a time not exceeding three clear days, it is customary for the Justice verbally to order the constable or other officer in whose custody the prisoner is, to keep him in custody, and to bring him up for further examination on the day appointed; but in all cases the Justice has power to order the prisoner to be brought before him at any time before the day fixed for the further examination, if he shall see fit. either remanded or admitted to A discretionary power is given to the Justices Accused may be of either remanding the accused person to prison or until the day fixed for further examination, or bail. of admitting him to bail in the meantime, (w) which may be done upon the accused person entering into recognizances, (according to the forms in Act 1, Schedules Q 2 & 3, pp. 67, 68,) either with or without sureties; and in the event of his non-appearance at the appointed time, the recognizance may be transmitted to the Clerk of the Peace, to be proceeded upon as other recognizances, upon any Justice who may then be present, certifying the fact of the non-appearance of the defendant. (Form in Act 1, Schedule Q 4, p. 68.) (u) 11 & 12 Vict., c. 42, s. 21. (w) Ibid. The defence of the prisoner. Care should be ing any state ment of the prisoner in arswer to the charge. Should the Magistrate, however, consider that the evidence is sufficiently strong against the prisoner, to call upon him for his defence, he should ask him what he has to say in answer to the charge made against him, and if he is willing to make any statement, it is the duty of the Magistrate to receive it; though, before doing so, the Magistrate ought entirely to get rid of any impression that may exist on the prisoner's mind that the statement may be used for his benefit; and he should also state to him, before inviting him to make any statement, and give him clearly to understand, that he has nothing to hope from any promise of favor, and nothing to fear from any threat that may have been held 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. The Magistrate should also address him in these words, or words to the like effect:(x) "Having "heard the evidence, do you wish to say any thing in answer to the charge? You are not "obliged to say anything, unless you desire to "do so, but whatever you say will be taken down "in writing, and may be given in evidence "against you upon your trial."(y) Care should be taken to impress this on the taken in receiv- mind of the prisoner, lest he might be induced to say something which he thought might be favorable to him ;(z) at the same time, however, Magistrates ought not to dissuade a prisoner from confessing;(a) nor ought they to be over cautious in pressing upon a prisoner the propriety of not saying anything that may tend to his own crimi (x) 11 & 12 Vict., c. 42, s. 18. (y) Reg. v. Arnold, 8 Car. & P. 621, per Lord Denman. (z) Reg. v. Harris, S. W. Circuit, Lent Ass., 1844, per Maule, J. (a) Rex v. Green, 5 Car. & P. 312, per Gurney, B. nation, as is sometimes done from too strong a feeling on the side of mercy. It has therefore been held by many Judges that a Magistrate may question the prisoner ;(a) for although the practices pursued in former times, of entangling the accused in a web of suspicions, spun out from his own incautious answers, not to mention the barbarous evidence wrung from him by the rack, -cannot be sufficiently reprobated, yet there is justice due to the injured party as well as to the prisoner; and a Magistrate would not only act against the law, but also commit a breach of that moral obligation which is incumbent on mankind in general, were he not to aid, by every lawful expedient, the detection of the guilty, as well as the relief of the innocent. The general rule seems to be, that a statement Statement of a or confession of a prisoner may be used as evi- prisoner may be used against him, dence at the trial, provided there has been no when no induceinducement held out to him.(b) If therefore the ment is held out. prisoner-after having been cautioned that he is not obliged to say anything, but that what he thinks fit to say will be taken down, and may be used against him on his trial-either on Rex v. (a) Rex v. Ellis, R. & M. 432.-Littledale. b Prisoner may call defence. his own motion, or in reply to fair and open questions put to him from the Bench, should think proper to make any statement, it is the duty of the Magistrates to allow him to do so; and they should direct such statement to be taken down in the form pointed out in Schedule N. to Act 1, p. 62. The statement should be read over to him, and he should be invited to sign it; but whether he sign it or not, the Magistrate should sign it as having been taken before him, but not sworn.(a) If the prisoner be desirous of calling witnesses witnesses for his for his defence at this stage of the proceedings (which it is imprudent for him to do, unless he has strong grounds for believing that he can satisfy the Justices of his innocence, and thus procure his discharge, or at all events an admission to bail), he is at liberty to call as many witnesses as he pleases, and they must be sworn and examined, and their depositions taken down in writing in the same manner as those for the prosecution; and the prosecutor may cross-examine such witnesses respectively, as soon as their evidence in chief has been finished. When a prisoner is brought up for tion the former further examina depositions should be read over. When a prisoner has been remanded for further examination, the proceedings, on his being again brought up, should be commenced by reading over all the depositions and examinations before taken; and the additional evidence is then gone into with the same formalities; after which the Magistrate should consider the evidence, and decide whether to commit for trial, to hold the prisoner to bail, as noticed hereafter, or to discharge him. (a) It is quite essential that it should appear upon the face of the statement, that the prisoner has not been sworn, otherwise it will not be received as evidence. For in a case where the statement concluded "taken "and sworn before me," and under that the Magistrate's signature, the Judge refused to receive it in evidence, or to allow evidence to be brought that the prisoner was not in fact sworn, and that the words "and sworn" had been inserted inadvertently.-Rex v. Rivers, 7 Car. & P. 177.-Park. When the evidence on the part of the prosecu- when the Mation, either in the first instance, or on the gistrate shoul accused party being brought up for further ex-soner for trial. amination, is in the opinion of the Magistrate insufficient to put the party on his trial, he should forthwith order him to be discharged; but if, on the contrary, the charge is supported by positive and credible evidence of the facts, or by such evidence as, if not explained or contradicted, shall in the opinion of the Magistrate raise a strong presumption of the guilt of the accused person, it is the duty of the Magistrate either to commit him for trial or admit him to bail, and at the same time bind over the prosecutor and witnesses to prefer an indictment and give evidence at the trial.(a) ment. Upon deciding to commit the prisoner for trial, Mode of committhe Magistrate should inform him thereof publicly, in the words or to the effect following: “A. B. You stand committed to the com mon gaol at 66 case may be), when an Indictment "will be preferred against you for "the offence of which you stand charged." And a warrant of commitment should be forthwith made out according to form in Act No. 1, Schedule T. 1, p. 72. Court, or Quar nature of the If the charge against the prisoner involve a The commitment capital offence, or an offence of so serious a cha- should be to the SupremeCriminal racter as, in the opinion of the Magistrate, to Court, Circuit make it expedient to send the case for trial in the ter Sessions, achighest court, the commitment should be made cording to the accordingly. In England it was a serious com- charge. plaint, some few years ago, that Justices at the Quarter Sessions took upon themselves to try many offences of a very grave nature. The Middlesex Magistrates, in particular, were guilty (a) 11 & 12 Vict., c. 42, s. 25. |