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tion, with a view to excuse or palliate the falsehood of the statutory declaration, it was sought on behalf of Cannon to prove that there was a draft of the statutory declaration; that Cannon had seen it and corrected it, and that the statutory declaration which he in fact made had been improperly drawn, not shewing the corrections so made in the draft, and had been incautiously adopted by Cannon upon Elworthy assuring him it was all right. Upon that cross-examination Elworthy denied that there had been a draft of the statutory declaration, and he explained a passage in his depositions in which a draft was referred to as a mistake for a draft of the assignment by way of security for the loan, in which there were corrections.
At the trial of Elworthy before me, it was alleged for the prosecution that his statement at the trial of Cannon, that there was not such a draft of the statutory declaration was false, and that in making such statement he had committed perjury. No notice to produce had been given, nor was there any subpoena duces tecum to the prisoner's partner to produce the alleged draft, and the prisoner's counsel objected that secondary evidence could not be given thereof. I allowed the case to proceed and secondary evidence to be given, subject to the opinion of this Court as to the propriety of that course.
The prosecution thereupon gave the evidence of Mr. and Mrs. Cannon, that there was a draft, and that it had originally been in the form of the statutory declaration, and had been altered in the alleged particulars by Cannon to the knowledge of Elworthy. The materiality of the existence of a draft turned upon its form and the fact of its having been so altered. The prisoner was convicted, and as I doubt the propriety of receiving secondary evidence under the above circumstances, I request the opinion of the Court upon that point, whether the conviction was right.
The prisoner was admitted to bail.
is submitted that the question of its form was only important to identify the instrument, and parol evidence is admissible to identify a written document-Taylor on Evidence, 4th edit. pp. 379, 397.
[WILLES, J. read his notes of the evidence given by Cannon on the trial, in which he described the alterations made in the draft; and his Lordship added, that from the beginning to the end the question in the case must be taken to have been, whether there was a draft in existence such as contained those alterations.]
It is useless to give a person notice to produce a document the existence of which he has denied. Next, where the matter of the action or indictment is of such a nature as to give the defendant notice that he will be called upon to produce the document, it is unnecessary to give him notice 1 Taylor on Evidence, 4th edit. par. 422, p. 432, Aickle's case (1), Layer's case (2), Le Merchand's case (3) and How v. Hall (4), and it is submitted that is the case here.
[WILLES, J.-The indictment rang the changes. It must be taken to have contained enough to shew that the contents of the draft were material. KELLY, C.B.
-Where the nature of the action or indictment is such that the defendant must know that he is charged with the possession of the instrument, and is called upon to produce it, notice is not necessary, and such is the case in the action of trover or an indictment for stealing; but where the matter is collateral, is it not necessary to give notice? BRAMWELL, B.— This indictment does not necessarily give notice to the defendant that he was charged with the possession of the document, and called upon to produce it.]
In Colling v. Treweek (5) the copy of an attorney's bill not signed by the attorney, the original of which, duly signed, had been delivered to the defendant, was held to be rightly admitted in evidence on the trial of an undefended action, brought on the bill after the expiration of a month after delivery without notice to produce, the original having been given to the defendant. Cur. adv. vult.
(1) 2 East, P.C. 968; s. c. 1 L. C.C. 294. (2) 6 State Trials.
(3) Cited in a note to Aickle's case.
The case was argued on Nov. 16; and on Nov. 23 the following judgments were given:
KELLY, C.B.-This was an indictment for perjury. The perjury assigned was a statement made by the prisoner that there was no draft of a statutory declaration which was referred to on the trial of one Cannon. The point reserved for this Court is, whether a conviction founded, to a certain extent, upon secondary evidence of the form of, and alterations in that draft received without notice to the prisoner to produce the original draft, was right. We are of opinion that notice to produce the original was necessary to entitle the prosecution to give such secondary evidence.
There had been an indictment for making a false statutory declaration, and the now prisoner, who was a witness on the trial of that indictment, swore that there was no draft of that statutory declaration. It afterwards became material to ascertain the contents of the draft. It became material, because it was alleged that there was a draft, and that its contents were such and such, and that the other party required a change in the language, and that that change had been incorporated in the draft. The exact contents of the draft, therefore, became essential to the prosecution on the present indictment, because upon its contents depended the materiality or immateriality of the evidence on the former trial. The prosecution then gave evidence of the existence of the draft, that it came into the prisoner's hands and had not passed from him. Parol evidence of its contents was thereupon admitted, and the question raised is, whether, in order to give parol evidence of the contents of that document, notice to produce it ought to have been given. There is no doubt that, according to the general rule of evidence, such notice must have been given; but it is contended that this case falls within those cases which have established an exception to the rule, and made the secondary evidence here admissible without notice to produce the original. For example, it is said that in trover for a deed or other written document, parol evidence might be given of the contents of the document without notice to the defendant to produce it; but the defendant there has notice by the nature of the
action itself and the description of the document in the declaration, without further notice that he is called upon to produce the document. He can therefore do so if he thinks fit. We do not, however, think that that case is applicable here. In The Queen v. Aickle (1) the prosecution was for larceny of a bill of exchange, and it was held to be unnecessary to give the prisoner notice to produce the bill before giving evidence of its contents. The reason is said to be given in an obiter dictum of Heath, J."If the bill had been in the custody of the prisoner, there would have been no necessity to prove that it was not in existence; but parol testimony might undoubtedly in such case have been given of its contents.' But Eyre, B. appears to give the chief reason in Le Merchand's case (3), in a note to Aickle's case (1), who says the copies of the letter were admitted, "not on the idea of the defendant's having after notice refused to produce the originals, but because they were the best evidence which the nature of the case would admit of, or that was in the power of the party producing them to give" (6). In such a case the prisoner has notice that he will be called upon to produce the document by the form of the indictment. That case, therefore, is also inapplicable to the one before us. Here there was nothing on the face of the indictment, which I have looked at, to shew that the draft had come into his possession; therefore there was nothing to shew that it was alleged to be still in his possession, and to tell him that he was called upon to produce it.
Four things must be made out: first, that the prisoner stated there was no draft; secondly, that such statement was false; thirdly, that he knew that statement to be false; fourthly, that the statement was material. What is there in those allegations to import that the draft ever came into his possession? He may have alluded to another document from the one described in evidence. There was nothing on the indictment or the evidence to shew that, in order to sustain this prosecution, the prisoner was called upon
(6) It is to be observed in Aickle's case that the prisoner had not possession of the bills which he was charged with stealing, but they were traced to the possession of one Smith, who was served with a subpoena duces tecum, but he did not appear, nor was the bill produced.
to admit secondary evidence of this document being given against him. If sufficient notice had been given to him, he might have produced it. Speaking for myself, I think that the admissibility of secondary evidence, without the production of the best evidence or the document itself, ought not to be extended.
WILLES, J. concurred.
BRAMWELL, B.-If the question had been merely as to the existence of the draft, I should have been inclined to think the evidence admissible; but the prosecution gave in evidence the contents to shew that the prisoner's denial of its existence was wilful; therefore the contents and the alterations therein became material. I think that parol testimony cannot be given of any existing written document without laying a proper foundation for it. No exception to that rule is here applicable. The indictment did not give notice to the prisoner that he would be required to produce the original draft. The prosecutor might have contented himself with giving evidence of its existence, but he chose to go further.
BYLES, J. and LUSH, J. concurred.
Perjury-Bastardy Summons — Information Evidence of Proceedings before Justices.
Upon an indictment for perjury committed at the hearing of an information in bastardy, which indictment alleged the appli cation for a summons, the issuing thereof, and the hearing upon it, proof of the information, of the appearance of the defendant, of the hearing, of evidence being given on both sides, and of no objection being made of the want of a summons, is sufficient to shew jurisdiction in the Justices who heard the information, without proof of the summons which issued upon that information;
*Coram Kelly, C.B., Willes, J., Bramwell, B., Byles, J. and Lush, J.
and a conviction for perjury upon the above indictment was upheld.
The following CASE was reserved by Cockburn, C.J.—
This was a case tried before me at the last assizes for the county of Leicester, on an indictment for perjury alleged to have been committed by the defendant on the hearing of an information before two Justices on an application by one Louisa Harrison, the mother of an illegitimate child, against one Tom Mee, for an order of affiliation. The indictment alleged that an information was exhibited before two Justices by Louisa Harrison against Mee, charging him with being the father of her illegitimate child, and that application was made by her to the said Justices for a summons against Mee to answer the said complaint; that a summons was accordingly issued by the said Justices, and that in obedience to the said summons Mee appeared at a petty sessions to answer the charge. The indictment went on to state the proceedings on the hearing of the summons, and alleged in due form that perjury had been committed by the prisoner Smith.
On the trial before me, evidence was given that an information was duly made 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 that upon the hearing of the information the evidence, which was the subject-matter of the present indictment, was given by Smith, who was called as a witness by Mee. But the summons was not produced on the trial of Smith, nor was secondary evidence given of its contents, nor was it proved that such summons had been served on Mee. It appeared that it was the practice to give duplicate summonses to the police constable whose duty it was to serve the summons. The police constable who served the summons in question not being present at the trial, no evidence of the service of any summons could be given. In all other respects the proceedings before the Justices on the hearing of the information were duly proved, and appeared to have been regular and correct.
On the close of the case for the prosecution, it was objected on the part of the prisoner that the want of proof of a sum
mons, as required by the 7 & 8 Vict. c. 101, having been served on the defendant in the information, was fatal to the present prosecution, inasmuch as the summons formed the basis of the Magistrates' jurisdiction.
I declined to stop the case in that stage, and witnesses having been called for the defence, and the case having gone to the jury on the merits, the prisoner was found guilty.
The question which I have reserved, and on which I desire the decision of the Court,' is whether, the information having been duly proved, as well as the proceedings upon it, at the hearing at the petty sessions, the absence of proof of the summons with which the defendant in the information ought, under the statute 7 & 8 Vict. c. 101, to have been served, in order to give the Justices jurisdiction to hear the information in bastardy, was fatal to the prosecution on this indictment for perjury.
Metcalfe, for the prisoner.-A summons was necessary to give the Magistrate jurisdiction-7 & 8 Vict. c. 101. ss. 2, 3; and therefore the summons ought to have been produced or notice given to the defendant in the bastardy proceedings to produce it, and in default secondary evidence of it givenThe Queen v. Newall (1). The defendant appears in answer to the summons, and the summons, therefore, is the basis and best evidence of the charge which is heard and of the issue then before the Justices, so as to shew what statements are and what are not material-The Queen v. Whybrow (2), The Queen v. Hurrell (3).
No counsel appeared for the prosecution. Cur, adv. vult.
The case was argued Nov. 23; and on Nov. 27 the judgment of the Court was delivered by
KELLY, C.B. This conviction must be affirmed. This was an indictment for perjury alleged to have been committed on the trial of an information laid under the Bastardy Act. The objection and the only objection before us was, that there was no evidence of the summons or of the service of the summons which issued upon that information. We are of opinion that that objection cannot be sustained. Though there was no summons (1) 6 Cox, 21.
(2) 8 Ibid. 438. (3) 3 Fost. & F. 271,
produced at the trial of Smith for perjury, nor was it proved that Mee had ever been served with such summons, there was the information, which described the complaint made; evidence was given on both sides, and all the proceedings were regular at the time of the appearance of the defendant before the Justices. The only question, therefore, is, was it necessary to produce the summons? The object of the summons is to bring the party into court. The defendant did appear and did not object to the want of a summons, and there was no necessity at the hearing of the information, or at allevents on the trial for perjury, to refer to the summons, and there being an informa tion, and the proceedings under that information being perfectly regular, therefore the production or evidence of the summons was not necessary.
Upon an indictment for robbery committed on the 13th of April, between eight and ten o'clock at night, a witness for the prisoner swore, not only that the prisoner was at home at that time, but in answer to the Judge said, that the prisoner had lived in the same house for the two years previous, and that during the whole of that time he had not been absent from the same house for more than three nights together. The last two statements were proved to be false, as the prisoner, for a whole year of the period spoken to, had been in prison :-Held, that the evidence so last given was material to the inquiry, and the proper subject of assignments of perjury, inasmuch as those latter statements tended to render more probable the previous statement made, that the prisoner was at home on the night of the 13th of April.
The following CASE was reserved by the Recorder of London:
* Coram Kelly, C.B., Willes, J., Bramwell, B., Byles, J. and Lush, J.
At a session of the Central Criminal Court, held on the 10th of June, 1867, and following days, Thomas Tyson was tried before me on an indictment for perjury. It was alleged in the indictment and appeared in evidence, that at the May session of the Central Criminal Court, one Owen Sullivan was tried for a robbery, and that upon that trial Tyson was called as a witness on behalf of Sullivan. The indictment went on to allege that upon the trial of Sullivan it was material to ascertain whether Sullivan was or was not at a house No. 20, in Mint Street, in the borough of Southwark, on the evening of the 13th of April, 1867, between the hours of eight o'clock and ten o'clock; and whether Sullivan had lived at same house for two years then last past, or from March, 1865, to March, 1866, and that Tyson falsely swore as such witnessFirst, that on the 13th of April, 1867, Sullivan came to 20, Mint Street, at halfpast eight in the evening, and did not go out again that evening; secondly, that Sullivan had lived in the said house for two years then last past; and, thirdly, that during the whole of that time Sullivan had never been absent from the same house for more than three nights together. Perjury was assigned upon each of the above allegations, and the prisoner was convicted on the last two. The second and third allegations were distinctly contradicted by the oaths of two warders of the Wandsworth House of Correction, who proved that Sullivan was under their charge in that House of Correction from March, 1865, to March, 1866. The prisoner was undefended, and a question was raised whether the averments of the defendant were material on the trial of Sullivan. Counsel for the prosecution contended that they affected Tyson's credit as a witness on Sullivan's trial. I reserved the question for the consideration of the Court, whether the two last allegations of Tyson, upon which perjury was assigned, were sufficiently material on the trial of Sullivan to support the indictment for perjury in respect of them. The defendant is in prison awaiting judg
Nov. 16.-The Court remitted the above case, that it might be more clearly stated in what manner the question came to be put which produced the answers, and how the
circumstances arose which made the answers material.
Nov. 23. This case was now brought up amended, by annexing copy of Mr. Common Serjeant's notes of the trial of Sullivan, which were as follows:
"William Pearce, of 12, Windsor Terrace, saith-On 13th of April, at 8:45 p.m., I was in the Dover Road going to the train. I was passing Leicester House; felt a man seize me and pull me round, and I looked up and saw the man's face, and two others laid hold of me and pinioned my arms, rifled my pockets, took away my watch, a sovereign and 27s. silver, and then they all ran away, and I fell down. I caught the man's eyes, and am sure he is the man. I got up, ran after them to the corner of Kent Street, and lost sight of them. On the following Tuesday I saw prisoner and five others, and I at once picked him out. He said, I was not there, it was Bandy and some other; I said I know there were two others.
"Cross-examined—I am positive I could not swallow anything for a fortnight, my throat was so pinched. I looked up at the man's face; I never saw him before; I did not see the faces of the others.
"William Eldred, P.C. 160 M., saithI took prisoner at Red Lion, Suffolk Street, and took him to the station. Prosecutor picked prisoner out from six others at once. "Cross-examined-I told him I had a man in custody.
“Mr. Cooper addressed the jury for prisoner, and called
“Thomas Tyson, who saith-I am underdeputy at 20, Mint Street, Borough, a lodging-house; remember prisoner being taken up. On the Saturday before prisoner came in between eight and nine, and did not go out again. He came in about 8:30; he lay down on a form till 9:45, and then went to bed. He has lodged at the house nearly two years.
"Cross-examined-I know it was 8.30, because the prisoner is such a man for larking. The deputy was there at the time: he is not here.
"Re-examined-He makes the kitchen merry. Another man followed him. The deputy sent the prisoner away from the fire.
"By me--I went to the house in May,