Abbildungen der Seite
PDF
EPUB

tion, with a view to excuse or palliate the is submitted that the question of its form falsehood of the statutory declaration, it was was only important to identify the instrusought on behalf of Cannon to prove that ment, and parol evidence is admissible to there was a draft of the statutory declaration; identify a written document—Taylor on that Cannon had seen it and corrected it, Evidence, 4th edit. pp. 379, 397. and that the statutory declaration which he (WILLES, J. read his notes of the evidence in fact made had been improperly drawn, given by Cannon on the trial, in which he not shewing the corrections so made in the described the alterations made in the draft; draft, and had been incautiously adopted and his Lordship added, that from the by Cannon upon Elworthy assuring him it beginning to the end the question in the was all right. Upon that cross-examination case must be taken to have been, whether Elworthy denied that there had been a there was a draft in existence such as condraft of the statutory declaration, and he tained those alterations. ] explained a passage in his depositions in It is useless to give a person notice to which a draft was referred to as a mistake produce a document the existence of which for a draft of the assignment by way of he has denied. Next, where the matter of security for the loan, in which there were the action or indictment is of such a nature corrections.

as to give the defendant notice that he will At the trial of Elworthy before me, it be called upon to produce the document, was alleged for the prosecution that his it is unnecessary to give him notice statement at the trial of Cannon, that 1 Taylor on Evidence, 4th edit. par. 422, there was not such a draft of the sta- p. 432, Aickle's case (1), Layer's case (2), tutory declaration was false, and that in Le Merchand's case (3) and How v. Hall (4), making such statement he had committed and it is submitted that is the case here. perjury. No notice to produce had been (WILLES, J.--The indictment rang the given, nor was there any subpoena duces changes. It must be taken to have contecum to the prisoner's partner to produce tained enough to shew that the contents the alleged draft, and the prisoner's counsel of the draft were material. KELLY, C.B. objected that secondary evidence could not -Where the nature of the action or inbe given thereof. I allowed the case to dictment is such that the defendant proceed and secondary evidence to be given, must know that he is charged with subject to the opinion of this Court as to the possession of the instrument, and is the propriety of that course.

called upon to produce it, notice is not The prosecution thereupon gave the evi- necessary, and such is the case in the action dence of Mr. and Mrs. Cannon, that there was of trover or an indictment for stealing; but a draft, and that it had originally been in the where the matter is collateral, is it not ne form ofthestatutory declaration, and had been cessary to give notice? BRAMWELL, B.-altered in the alleged particulars by Cannon This indictment does not necessarily give to the knowledge of Elworthy. The mate- notice to the defendant that he was charged riality of the existence of a draft turned with the possession of the document, and upon its form and the fact of its having called upon to produce it.] been so altered. The prisoner was convicted, In Colling v. Treweek (5) the copy of an and as I doubt the propriety of receiving attorney's bill not signed by the attorney, secondary evidence under the above cir- the original of which, duly signed, had cumstances, I request the opinion of the been delivered to the defendant, was held Court upon that point, whether the convic- to be rightly admitted in evidence on the tion was right.

trial of an undefended action, brought on The prisoner was admitted to bail. the bill after the expiration of a month

Carter, for the prisoner, was not called after delivery without notice to produce, the upon.

original having been given to the defendant. Besley, in support of the conviction.

Cur, adv, vult. The oral evidence was admissible, inasmuch as it was the fact only of the existence of (1) 2 East, P.C. 968; s. c. 1 L. C.C. 294. the draft that was in question; and as to

(2) 6 State Trials, the statement in the case that the materi

(3) Cited in a note to Aickle's case.

(4) 14 East, 274. ality of the draft turned upon its form, it (5) 6 B. & C. 394.

[ocr errors]

action itself and the description of the The case was argued on Nov. 16; and on Nov. 23 the following judgments were

document in the declaration, without fur

ther notice that he is called upon to progiven:

duce the document. He can therefore do so KELLY, C.B. - This was an indictment if he thinks fit. We do not, however, think for perjury. The perjury assigned was a that that case is applicable here. In The statement made by the prisoner that there Queen v. Aickle (1) the prosecution was was no draft of a statutory declaration which for larceny of a bill of exchange, and it was was referred to on the trial of one Cannon. held to be unnecessary to give the prisoner The point reserved for this Court is, whether notice to produce the bill before giving evia conviction founded, to a certain extent, dence of its contents. The reason is said to upon secondary evidence of the form of, and be given in an obiter dictum of Heath, J.alterations in that draft received without “If the bill had been in the custody of the notice to the prisoner to produce the ori- prisoner, there would have been no necesginal draft, was right. We are of opinion sity to prove that it was not in existence; that notice to produce the original was but parol testimony might undoubtedly in necessary to entitle the prosecution to give such case have been given of its contents.” such secondary evidence.

But Eyre, B. appears to give the chief There had been an indictment for making reason in Le Merchand's case (3), in a note a false statutory declaration, and the now to Aickle's case (1), who says the copies prisoner, who was a witness on the trial of the letter were admitted, “not on the of that indictment, swore that there was idea of the defendant's having after notice no draft of that statutory declaration. It refused to produce the originals, but beafterwards became material to ascertain the cause they were the best evidence which the contents of the draft. It became material, nature of the case would admit of, or that because it was alleged that there was a was in the power of the party producing them draft, and that its contents were such and to give” (6). In such a case the prisoner such, and that the other party required a has notice that he will be called upon to change in the language, and that that produce the document by the form of the change had been incorporated in the draft. indictment. That case, therefore, is also The exact contents of the draft, therefore, inapplicable to the one before us. Here became essential to the prosecution on the there was nothing on the face of the indictpresent indictment, because upon its con- ment, which I have looked at, to shew that tents depended the materiality or immate- the draft had come into his possession ; riality of the evidence on the former trial. therefore there was nothing to shew that The prosecution then gave evidence of the it was alleged to be still in his possession, existence of the draft, that it came into the and to tell him that he was called upon to prisoner's hands and had not passed from produce it. him. Parol evidence of its contents was there- Four things must be made out: first, upon admitted, and the question raised is, that the prisoner stated there was no draft; whether, in order to give parol evidence of secondly, that such statement was false; the contents of that document, notice to pro- thirdly, that he knew that statement to duce it ought to have been given. There is be false ; fourthly, that the statement was no doubt that, according to the general material. What is there in those allegations rule of evidence, such notice must have to import that the draft ever came into his been given ; but it is contended that this possession? He may have alluded to another care falls within those cases which have document from the one described in evidence. established an exception to the rule, and There was nothing on the indictment or the madle the secondary evidence here admis- evidence to shew that, in order to sustain this sible without notice to produce the original. prosecution, the prisoner was called upon For example, it is said that in trover for a deed or other written document, parol (6) It is to be observed in Aickle's case that evidence might be given of the contents the prisoner had not possession of the bills which of the document without notice to the

he was charged with stealing, but they were traced defendant to produce it; but the defendant

to the possession of one Smith, who was served

with a subpoena duces tecum, but he did not appear, there has notice by the nature of the nor was the bill produced.

a

to admit secondary evidence of this docu- and a conviction for perjury upon the above ment being given against him. If sufficient indictment was upheld. notice had been given to him, he might have produced it. Speaking for myself, I The following CASE was reserved by think that the admissibility of secondary Cockburn, C.J.evidence, without the production of the This was a case tried before me at the best evidence or the document itself, ought last assizes for the county of Leicester, on not to be extended.

an indictment for perjury alleged to have WILLES, J. concurred.

been committed by the defendant on the BRAMWELL, B.--If the question had hearing of an information before two Jusbeen merely as to the existence of the draft, tices on an application by one Louisa I should have been inclined to think the Harrison, the mother of an illegitimate evidence admissible ; but the prosecution child, against one Tom Mee, for an order gave in evidence the contents to shew that of affiliation. The indictment alleged that the prisoner's denial of its existence was an information was exhibited before two wilful; therefore the contents and the Justices by Louisa Harrison against Mee, alterations therein became material. I charging him with being the father of her think that parol testimony cannot be given illegitimate child, and that application was of any existing written document without made by her to the said Justices for a laying a proper foundation for it. No summons against Mee to answer the said exception to that rule is here applicable. complaint; that a summons was accordingly The indictment did not give notice to the issued by the said Justices, and that in prisoner that he would be required to pro

obedience to the said summons Mee apduce the original draft. The prosecutor peared at a petty sessions to answer the might have contented himself with giving charge. The indictment went on to state evidence of its existence, but he chose to the proceedings on the hearing of the sumgo further.

mons, and alleged in due form that perjury BYLES, J. and LUSH, J. concurred. had been committed by the prisoner Smith. Conviction quashed. On the trial before me, evidence was

given that an information was duly made Attorney-Beard, for the prosecution.

by the applicant Louisa Harrison against the defendant Mee; and the information itself was put in and read. It was proved

that Mee appeared before the Justices, and (CROWN CASE RESERVED.]

that upon the hearing of the information 1867.

the evidence, which was the subject matter Nov. 23, 27. THE QUEEN V. SMITH.* of the present indictment, was given by

Smith, who was called as a witness by Mee. Perjury --- Bastardy Summons --- Infor- But the summons was not produced on the mation --Evidence of Proceedings before trial of Smith, nor was secondary evidence Justices.

given of its contents, nor was it proved

that such summons had been served on Upon an indictment for perjury committed Mee. It appeared that it was the practice at the hearing of an information in bas

to give duplicate summonses to the police tardy, which indictment alleged the appli- constable whose duty it was to serve the cation for a summons, the issuing thereof, summons. The police constable who served and the hearing upon it, proof of the infor- the summons in question not being present mation, of the appearance of the defendant, at the trial, no evidence of the service of of the hearing, of evidence being given on

any summons could be given. In all other both sides, and of no objection being made respects the proceedings before the Justices of the want of a summons, is sufficient to on the hearing of the information were shew jurisdiction in the Justices who heard duly proved, and appeared to have been the information, without proof of the sum- regular and correct. mons which issued upon that information; On the close of the case for the prose* Coram Kelly, C.B., Willes, J., Bramwell

, B., cution, it was objected on the part of the Byles, J. and Lush, J.

prisoner that the want of proof of a sum

}

[ocr errors]
[ocr errors]

}

mons, as required by the 7 & 8 Vict. c. 101, produced at the trial of Smith for perjury, nor having been served on the defendant in was it proved that Mee had ever been served the information, was fatal to the present pro- with such summons, there was the informasecution, inasmuch as the summons formed tion, which described the complaint made; the basis of the Magistrates' jurisdiction. evidence was given on both sides, and all

I declined to stop the case in that stage, the proceedings were regular at the time of and witnesses having been called for the de- the appearance of the defendant before the fence, and the case having gone to the jury Justices. The only question, therefore, is, on the merits, the prisoner was found guilty. was it necessary to produce the summons?

The question which I have reserved, and The object of the summons is to bring on which I desire the decision of the Court, the party into court. The defendant did is, whether, the information having been appear and did not object to the want of duly proved, as well as the proceedings a summons, and there was no necessity at upon it, at the hearing at the petty sessions, the hearing of the information, or at all the absence of proof of the summons with events on the trial for perjury, to refer to which the defendant in the information the summons, and there being an informaonght, under the statute 7 & 8 Vict. é. 101, tion, and the proceedings under that inforto have been served, in order to give the mation being perfectly regular, therefore Justices jurisdiction to hear the information the production or evidence of the summons in bastardy, was fatal to the prosecution was not necessary. on this indictment for perjury.

Conviction affirmed. Afetcalfe, for the prisoner.-A summons was necessary to give the Magistrate jurisdiction-7 & 8 Vict. c. 101. 8. 2, 3; and therefore the summons ought to have been

[CROWN CASE RESERVED.) produced or notice given to the defendant in

1867. the bastardy proceedings to produce it, and

THE QUEEN V. TYSON.

Nov. 23. in default secondary evidence of it given The Queen *. Newall (1). The defendant

Perjury-Materiality-Evidence. appears in answer to the summons, and the summons, therefore, is the basis and best

Upon an indictment for robbery comevidence of the charge which is heard and mitted on the 13th of April, between eight and of the issue then before the Justices, so as ten o'clock at night, a witness for the prisoner to shew what statements are and what are swore, not only that the prisoner was at not material The Queen v. Whybrow (2), home at that time, but in answer to the The Queen v. Hurrell (3).

Judge said, that the prisoner had lived in No counsel appeared for the prosecution. the same house for the two years previous,

Cur. adv. vult. and that during the whole of that time he The case was argued Nov. 23; and on

had not been absent from the same house for Nov. 27 the judgment of the Court was

more than three nights together. The last delivered by

two statements were proved to be false, as the

prisoner, for a whole year of the period KELLY, C.B. - This conviction must be spoken to, had been in prison -Held, that

: affirmed. This was an indictment for perjury the evidence so last given was material to the alleged to have been committed on the trial inquiry, and the proper subject of assignof an information laid under the Bastardy ments of perjury, inasmuch as those latter Act. The objection and the only objection statements tended to render more probable before us was, that there was no evidence of the previous statement made, that the prisoner the summons or of the service of the sum- was at home on the night of the 13th of April. mons which issued upon that information. We are of opinion that that objection cannot' The following CASE was reserved by the be sustained. Though there was no summons Recorder of London :

(1) 6 Cox, 21.
(2) 8 Ibid. 438.

* Coram Kelly, C.B., Willes, J., Bramwell, B., (3) 3 Fost. & F. 271,

Byles, J. and Lush, J.

[ocr errors]

a

At a session of the Central Criminal circumstances arose which made the answers Court, held on the 10th of June, 1867, material. and following days, Thomas Tyson was Nov. 23.— This case was now brought tried before me on an indictment for per- up amended, by annexing copy of Mr. Comjury. It was alleged in the indictment and mon Serjeant's notes of the trial of Sullivan, appeared in evidence, that at the May which were as follows : session of the Central Criminal Court, one “ William Pearce, of 12, Windsor Terrace, Owen Sullivan was tried for a robbery, and saith-On 13th of April, at 8.45 p.m., I that upon that trial Tyson was called as a was in the Dover Road going to the train. witness on behalf of Sullivan. The indict- I was passing Leicester House ; felt a man ment went on to allege that upon the trial of seize me and pull me round, and I looked Sullivan it was material to ascertain whether up and saw the man's face, and two others Sullivan was or was not at a house No. 20, laid hold of me and pinioned my arms, in Mint Street, in the borough of South- rifled my pockets, took away my watch, wark, on the evening of the 13th of April, a sovereign and 278. silver, and then they 1867, between the hours of eight o'clock and all ran away, and I fell down. I caught ten o'clock; and whether Sullivan had lived the man's eyes, and am sure he is the man. at same house for two years then last past, I got up, ran after them to the corner of or from March, 1865, to March, 1866, and Kent Street, and lost sight of them. On that Tyson falsely swore as such witness- the following Tuesday I saw prisoner and First, that on the 13th of April, 1867, five others, and I at once picked him out. Sullivan came to 20, Mint Street, at half- He said, I was not there, it was Bandy and past eight in the evening, and did not go some other ; I said I know there were two out again that evening ; secondly, that Sul- others. livan had lived in the said house for two “ Cross-examined—I am positive I could years then last past; and, thirdly, that dur- not swallow anything for a fortnight, my ing the whole of that time Sullivan had throat was so pinched. I looked up at the never been absent from the same house for man's face; I never saw him before; I did more than three nights together. Perjury not see the faces of the others. was assigned upon each of the above alle- “William Eldred, P.C. 160 M., saithgations, and the prisoner was convicted on I took prisoner at Red Lion, Suffolk Street, the last two. The second and third allega- and took him to the station. Prosecutor tions were distinctly contradicted by the picked prisoner out from six others at once. oaths of two warders of the Wandsworth " Cross-examined—I told him I had a House of Correction, who proved that Sul- man in custody. livan was under their charge in that House “ Mr. Cooper addressed the jury for priof Correction from March, 1865, to March,

soner, and called 1866. The prisoner was undefended, and “ Thomas Tyson, who saith-I am undera question was raised whether the aver- deputy at 20, Mint Street, Borough, a ments of the defendant were material on lodging-house ; remember prisoner being the trial of Sullivan. Counsel for the taken up. On the Saturday before prisoner prosecution contended that they affected came in between eight and nine, and did Tyson's credit as a witness on Sullivan's not go out again. He came in about 8:30; trial. I reserved the question for the con- he lay down on a form till 9:15, and then sideration of the Court, whether the two went to bed. He has lodged at the house last allegations of Tyson, upon which per- nearly two years. jury was assigned, were sufficiently material “Cross-examined-Iknow it was 8:30, beon the trial of Sullivan to support the in- cause the prisoner is such a man for larkdictment for perjury in respect of them. ing. The deputy was there at the time: The defendant is in prison awaiting judg.

he is not here. ment.

“Re-examined-He makes the kitchen Nov. 16.— The Court remitted the above merry. Another man followed him. The case, that it might be more clearly stated in deputy sent the prisoner away from the what manner the question came to be put

fire. which produced the answers, and how the “ By me--I went to the house in May,

« ZurückWeiter »