網頁圖片
PDF
ePub 版

evidence be the best evidence of the facts to which the witness deposes; and, if not, whether grounds have been laid for its admission as secondary evidence; whether the questions be relevant and pertinent to the matter in question; and whether they be leading questions. If the evidence of the witness be objectionable in any of these respects, the counsel should immediately interpose, and make his objection.

Supposing, however, the witness and his evidence not open to these preliminary objections, the opposite counsel must then proceed to cross-examine him, if in his judgment a cross-examination be necessary or advisable. In giving his evidence, a witness tells the truth, wholly, or partially, or tells a falsehood. If he tell the whole truth, a cross-examination may be dangerous, as it may have the effect of rendering his story more circumstantial, and impressing the jury with a stronger opinion of its truth; it is better, in such a case, either not to cross-examine him at all, or to confine your questions to his credibility, by impugning his means of knowledge, his disinterestedness, his integrity, or his veracity. See ante, p. 99-104.

If the witness tell only part of the truth, then the opposite counsel, if the residue be favourable to his client, will immediately proceed to cross-examine him as to it; but if unfavourable, the counsel will either refrain altogether from cross-examining him, or will confine his questions to the witness's credibility, as above mentioned.

If, on the other hand, the evidence of the witness be false, then the whole force of the cross-examination must be directed to his credibility; See ante, p. 99-104; and you may afterwards prove the truth by other witnesses.

In cross-examining a witness, the counsel may ask him leading questions: that is, he may lead the witness, so as to bring him directly to the point on which he requires the answer; but he will not be allowed to put into the witness's mouth, the very words he is to echo back again. Per Buller, J., in R. v. Hardy, 24 How. St. Tr. 755. The questions, however, must be either relevant and pertinent to the matter in issue, or calculated to elicit the witness's title to credit.

When, in cross-examining a witness, you show him a letter, and he admits it to be of his hand-writing, the ordinary course is to have the letter read as part of your evidence after you have opened your case. But if it become necessary to have the letter read, in order to found certain questions, with relation to the contents of the letter, to be propounded to the witness, the court upon application, will allow the letter to be read at the time of the cross-examination, subject of course to the consequences of the letter's being considered as part of your evidence. The Queen's case, 2 Brod. & Bing. 288.

If, upon the trial of an indictment, it appear upon crossexamination of one of the witnesses for the prosecution, that J. S. was employed by the prosecutor, for the purpose of procuring and examining evidence and witnesses in support of the indictment: the defendant cannot give evidence of J. S.'s having offered a bribe to a certain person, to induce him to give evidence, touching the matter of the indictment, unless such person have been examined as a witness. The Queen's case, 2 Brod. & Bing. 302.

Re-examination.] If any new fact arise out of the crossexamination, the witness may be examined as to it, by the counsel who first examined him. In the same manner he may be re examined, when necessary, in order to explain any part of his cross-examination. In the Queen's case, it was holden, that if a witness, upon his cross-examination, admit his having used certain expressions in a conversation with a person not a party to the cause, the opposite counsel, in re-examining the witness, is confined to such questions as may elicit the meaning of the expressions, and the motives of the witness for using them. But where a witness deposes to certain expressions being used by a party to the cause, the counsel for that party is entitled to re-examine the witness as to the whole of the conversation in which the expressions occurred; because the expressions are given in evidence in such a case, as an admission of the party, and the whole of the admission should be taken together. 2 Brod. & Bing. 294.

BOOK II.

PLEADING AND EVIDENCE IN PARTICULAR

CASES.

PART I

OFFENCES AGAINST INDIVIDUALS.

CHAPTER 1.

Offences against the Property of Individuals.

SECT. 1. Larceny.

2. Embezzlement.

3. Cheating.

4. Burglary.

5. Arson.

6. Malicious Mischief.

7. Forgery.

SECT. 1.

Larceny.

Indictment for simple larceny.

MIDDLESEX, to wit: The jurors for our lord the King upon their oath present that J. S late of the parish of B. in the county of M. labourer, on the third day of May in the third year of the reign of our sovereign lord George the fourth, in the parish aforesaid in the county aforesaid, [three pair of shoes of the value of twelve shillings, one shirt of the value of four shillings, and one waistcoat of the value of seven shillings] of the goods and chattels of one J. N. then and there being found, feloniously did steal, take, and carry away: Against the peace of our said lord the King, his crown and dignity.

Simple larceny at common law, of goods above the value of 12d. (in which case it is called Grand larceny), is a felony within clergy; but in some instances, such as horse stealing, &c., which shall be mentioned hereafter, the benefit of clergy has been taken away by statute. Where a man commits a robbery or burglary in one county, and he is tried for it as a simple larceny in another county (see ante, p. 5.), and convicted, he shall lose the benefit of clergy, in the same manner as if he were convicted of the burglary or robbery in the proper county. 25 H. 8. c. 3. s. 3. 3 W. & M. c. 9. 8. 3. And the same in all other cases, where the larceny was originally committed under circumstances, which would deprive the party of the benefit of clergy. 3 W. & M. c. 9. s. 3.

Petit larceny (that is, simple larceny of goods of the value of 12d. or under) is a felony, but was never punishable at common law with death. It is now punishable by whipping or imprisonment, or, by stat. 4 G. 1. c. 11. s. 1, by transportation for seven years.

Evidence.

J. S. late of, &c.] It is little matter whether this be the correct name and addition of the defendant or not; if he do not plead the misnomer or wrong addition in abatement, he waives all objection to the indictment for any error in this respect. All therefore the prosecutor has to do, is to prove that the defendant is the person who actually committed the offence; which is done either by identifying him as the party who committed it, or by circumstantial evidence. See ante, p. 77, 78.

On the third day of May, &c.] The time and place here stated, need not be proved as laid: if the offence be proved to have been committed at any time before or after, provided it be some day before the finding of the indictment, ante, p. 14. 60, or at any other place, provided it be within the county, or other extent of the court's jurisdiction, ante, p. 14. 61, it will be sufficient. Or if it be proved that the larceny was actually committed by the defendant in another county, and that he carried the goods through or into the county or other extent of the court's jurisdiction, in which he is now indicted, it will be sufficient. Ante, p. 5.

Three pair of shoes, &c.] The species of goods must be proved as laid; for instance, upon this indictment, if the prosecutor were to fail in proving that shoes, or a shirt, or a waistcoat, were stolen, the defendant should be acquitted, although there might be indisputable evidence of his having stolen other articles. See ante, p. 22. 63. But it is not necessary that the prosecutor should prove all the articles, mentioned in the indictment, to have been stolen; if he prove the

defendant to have stolen any one of them, (as, for instance, if he prove that the defendant stole the waistcoat, or the shirt, or one pair of the shoes) it would be sufficient. Ante, p. 22. 63.

The goods taken, must appear in evidence to be personal goods; for none other can be the subject of larceny at common law.

First, Things real, or which savour of the realty, cannot be the subject of larceny, at common law; and so strict is the rule in this respect, that a larceny cannot be committed even of title deeds, 1 Hale, 510. 1 Hawk. c. 33. s. 35. 2 Str. 1137, or any other charter or writing concerning the realty, R. v. Westbeer, 1 Leach, 12, or even of the box in which they are kept. 1 Hale, 510. 3 Inst. 109. Lands, tenements, and hereditaments (either corporeal or incorporeal) cannot in their nature be taken and carried away. And of things also that adhere to the freehold, as corn, grass, trees, and the like, or lead or other thing attached to a house, no larceny can be committed at common law; but the severance of them was, and in many cases still is, a mere trespass, and the subject of a civil action only. But it was always holden at common law, that if the owner, or a stranger sever them, and another man come and steal them,—or if the thief sever them at one time, and that another come and take them away,-it is a larceny. 3 Inst. 109. 1 Hale, 510. And now, stealing, or removing with intent to steal, lead or iron (4 G. 2. c. 32.), or any copper, brass, or bell metal, 21G. 3. c. 68, fixed to any dwelling house or other building, garden, or court thereunto belonging, is made felony, and punishable by transportation for seven years. To cut or take away corn growing; to rob an orchard or garden; to break or cut a hedge, fence, &c., or to take up fruit trees, for the purpose of carrying them away; to cut or spoil woods, underwoods, poles, or trees standing; 43 El. c. 7; to steal or destroy turnips, potatoes, cabbages, beans, parsnips, pease, or carrots; 13 G. 3. c. 32. 42 G. 3. c. 67; to steal or destroy madder roots: 13 G. 3. c. 35. s. 5: are punishable, upon a summary proceeding before a magistrate, by whipping, fines, imprisonment, &c. To steal, cut down, bark, or destroy, in the night time, any timber tree, or any roots, shrubs, or plants of the value of five shillings, is made felony, and punishable by transportation for seven fears; 6 G. 3. c. 36; and if done in the day time, is punishable by fines for the first and second offence, and with transportation for the third; 6 G. 3. c. 48. 13G. 3. c. 33; which statute of 6 G. 3. c. 48, has since been extended to all woods and wood grounds belonging to his Majesty, 45 G. 3. c. 66 s. 1, and to all hollies, thorus, and quicksets in any of his Majesty's forests or chases. 9 G. 3. c. 41. s. 8. And lastly, to steal black lead or black lead ore from mines, or to break into the mines with intent to steal it,

« 上一頁繼續 »