New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1842-08-24
WHO'LL sS. aos.

out o. Corr: AI~tyn FsHylsaS; Chu. u
- gwen the deit n.iant coaul's
son 'r witnesses OF thr star. amt aiowr' hi 10
anime ether witnesses eadtonaly, as 'n EVIL caseS bo
these Or vegss confined iie defendant * - Sl
Sc IS, l5 These DIVISIONS show very satisfactorily Ia"
til, Legislature ,hongh; here no warrant for s1ani
ing witnesses ont # Court crpnol cases, AMI that h'
otfc-r
There i. Z case of Matthews v Pos, rComb 65l which,
after beading in three lines that the visitation boohs ke
by the herads good evidence has four constituting nr>
a. follows: The witnesses NAV be examined before
aug- by leave OF the court as well in crimaa causes a,
IN civil, where sufficient appears The
going 10 sea &c and thee the other sd, NAV cross.exaip
them" NJ Vince with his usual .uStry, has found
pa, to this dctu in ms grea aordgemrnt; but ths La'
added nothing TO its force ivn. ab Evidence, Alb 81
pL u As that civil suit il no, very pr babe tha,
the court made any such remark bat if they did there
no adjudication or practice TO support IL.
ordering the examination Mrs Purdy and the dispositions
taken before the Recorder therefore cxtraudcia and
void.
II. II remains consider these depasons they
taken by hr Merritt the cenmittins Magistrate Our
cases of eoay bu, extends to every criminal offence;
although IL desndant was only charged win nisoe-
meanor the Justice bad authority and II was hts duty TO
support of the prosecution r. S 7o6, Isl II The &C.
Tered no deTimen they were properly ADMITTED IN evi
dence on the ralhe witness being dead Were they Ia
Of the statutes of Philip and Mary that the defendant must
be present the examination of the witnesses against hun;
and statute expressly provides that ue eHan!naion
shall be had the presence OF the prisoner iS and
desired his counsel may also be present IA rhe Legs
ature thus carefully provsed that the defendant shall
have the opportunity to crossexanine, and if that right
not enjoyed the deposition cannot read in evidence
against him on the trial. The King Paine, Med loS;
Comb $685. c.; WoodeocRs case Leach 800; piag yer
Rex v Forbes, Holt NJ So, note; The State HILL
Hill Law Rep Is. Carr 697 Stark Ev 1892 Hawk
e ed ca E ST. n M H 9y
Chit Or l. 70; Cow. and Hills notes TO Phil ev sss,
note $685. The King Crowher t. r. l25 The answers
of the witness should be oath he should be first
and then examined instead OF taking the examination rst
and then swearing him the truth OF the statement The
King klddy, D. r. 7S4. and the deposition should
be taken nearly possible in the words used by the wit
closed the defendant; should be allowed TO at
large and the should be carefully SET down by the
Magistrate. In short the deposition should be SD taken
that the defendant will lose as little as the nauie OF the
viii permit by reading the deposition on the trial IN
stead OF having the oral examination OF the witness before
the jury.
In Rex Forbes Holt N. Rep $50, note the pris.
until OF the deposition had been
prepared when he introduced and heard the reman-
der Of the examination; and when II wa, concluded, the
whole deposition was read over to the prisoner Gnanrd
in the defendants absence. He said the intention ne
of Philip and sary is sufficiently plain 1t Lt
the prisoner shall be present while the witness actually de-
ves his testimony he may know the precise WORDS
and observe throughout the manner and dsmean.r
Rex VS. smith, i Holt ". p Rep 614 and Stark Rep.
2oa tried 1917, and afterwards csne before the
twelve Judges and is reported in Russ VS. Ryan, CT Gas
$3.50 where more g sIRea g ss o saeS
was - s Writing The prisoner present
when he examination commenced but brought into the
before the three lines the deposOn were taken
down. He was then informed that the magistrates were
taking the examination Of the witness, and was desired to
attend The oath was again administered TO Tue witness IN
presence the prisoner and the whole OF what had
been previously written down from the mouth OF the WIT
was in his presence read once very distinctly ana
prese5ce of the prisoner, whether what had e
true, and what he meant 70 say and the Wines an
swered that II perfectly correct Fhe thsn
proceeded examine the witness farther and ate, the
three last lines written the prisoner was asked wheh.
signed BY the witness and certified by the magistrates in
presence of the prisoner Richards e before whom
The defendant lried, OF opinion that Inc evidence
admissible since the deceased had been re.sworn IN
the presence of the prisoner aud had repeated what he
before, and the prisoner therefore had an opper
tuoiiv of xamnng hu Ten OF the eleven Judges
vino afterwards to consider tn case were OF 1pnloI
oags oheruise have been thus particular in stating
this because it has been supposed TO depart
is mistake In Rex VS. Forbes it did not appear that the
had been before the Grostlnn was read
"ncen the presence Of the prisoner. MI Shty 4. VI >.
says If original Information and evidence taken be-
tore the was issued, contain complete case, l.
practice resw-arn9 the accuser ana witnesses 10
thei, former dispositions III their presence an'
that the prisoner and to the latter that be IS at
liberty ssk the prosecutor and witnesses any question
respecting the charge against him. This practice may,
perhaps be tolerated. thong clearly Is not the most pro-
PEE course.
ay prepared and sworn .he defenaens absence, and
coI therefore be used the trial. usess the difficulty
obvisted wha took place aIterthe arrest And here
,ere are obj Although the defendant con
go with the Justice to the house Of Mrs Purdy
she gave. the copsen, being told by Justice that the
nuy u-ct in gnn. was 10 have the defendant d,nlhed D,
the witness When got 10 the house. the Justicr MOI
only prepared AFFIDAVIT identifying The defendant but n"
proceee,. 10 reWear tine u The original deposition,
evidence against be Defendant Although moth ug wrenp
was Intended hnk ais proper course of pro-
ceedng The hsband had gone alter cousscl Tor the very
purpose having assistance on the examination and 1t thr
iernGan- had been made 10 understand how muc vas 10
done on is visit % Mr. pury IT'S hgSy Sos0e a
had been allowed for The return OF her hnshanu Iherr
occasion TOR urging the woman away WIN SO ulaGh
after she bad desired TO have counsel ana "nen hr
return her husband might be expected Within nteeu VI
twenty Tbe witndss, 50 far as appears. was MOI
ID, dangerously ill., and she Gid not die untl the lap.e OF
more than month from that Tine The language OF the
statute is, if desired by the person arrstea ms counsel
may be present during The examination" r. b 1o3 i4
reasonable time after the arrest should be allowed for the
employ ueD Of counsel aad think The Jusce mijudsfh
OF MS duty in proceeding examination before rea-
ssnabe time bad elapsed for o. lhr husband
But what this supposed examination OF tue whess
he Justice did not pursue the w bsr gA'
relies. In that the magistrates in the first place re-
rore The witness IN The presence OF me pflsonef ana e
Siton had beer previously written The witness was
,h-n as.ed whether what had been writes was true and
hat he mean TO say and he answered, that it was per-
fecty The magistrates then proceede and COM
pleted the deposition. There examination Of the
witness oath AMI IN the presence Of the proner ana "pth
the drec. examination was through tne Pr'"TnThi T
ved 10 croas-exanaise. How was 1t here! Inc ousuce
without ssueartng the wisliess 10 answer dassu
The complaint read over the original apoagiG. en pr.
pared another and read that and then ,~ore e 10
both dispositions III the gross After an han 9een tnu Go
eted the defendant told that she could put Gueshon
She did put questions but il the witness had answered
falsely she could Fave besn convicted OF perjury Shs
had MS sworn that the DISPOSITIONS trne: but She had
not swarn TO answer questions at all! The whole matter
was accomplished and the parties let The house wthn
twenty or thirty minutes after they had entered IT, IL viii
do 10 bold this such examination as will make The
enotions evidence against the accused The witness was
NOT ahmed on OATH The presence Of the prisoner as
the statute requires S. 703 2S In our zeal TO punish
crime great care should be taken not to make
which NAV prove dangerous the innocent and should
never be forgotten that the guilty have rights which
should be scrupuloIsly regarded
think the Justice also erred in not giving the answer OF
the witness TO the questions put by OF
ton H. as the uslice understands the natter there was
ip pou, of fact but question: and The defendant put
AVID aoaie ia