R v Mathew Scaife and Thomas Rooke
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1852 |
| Date | 01 January 1852 |
| Court | Crown Court |
English Reports Citation: 169 E.R. 505
Crown Cases
S. C. 17 Q B. 238; 4 New Sess Cas. 731; 20 L. J M. C. 229; 17 L T O S. 152; 15 Jur 607; 15 J P 581; 5 Cox C C 243; subsequent proceedings, post, p. 513. Not followed R. v. Simpson, ex parte Simpson, 1913, 110 L T 67 Referred to, R. v. Bertrand, 1867, L. R. 1 P. C. 520; R. v. Murphy, 1869, L R. 2 P C 535; R. v. Duncan, 1881, 7 Q. B D 198; R v. Hampshire, 1869, L R. 2 P. C. 535; R. v. Duncan, 1881, 7 Q. B D 198; R. v. Hampshire, 1887, 3 T L R 712
[281] 1851 regina v mathew scaife and thomas rooke (Where, upon the trial of an indictment against three prisoners for felony, it was proved that a witness had been kept out of the way by the procurement of one of the prisoners Held, that the deposition of the absent witness was receivable in evidence against the prisoner by whose procurement she was kept away; but that it was not evidence against the other two prisoners, and that its reception, without a direction to the jury that it was not evidence against the latter, was ground for granting a new trial ) [S. C 17 Q B. 238 ; 4 New Sess Cas. 731 ; 20 L. J M. C 229 ; 17 L T 0 S. 152 ; 15 Jur 607 ; 15 J P 581 ; 5 Cox C. C 243 ; subsequent proceedings, post, p. 513. Not followed, R. v Simpson, ei parte Simpson, 1(J13, 110 L T G7 Referred to, R, v. Bertrand, 18b7, L. R. 1 P. C 520 ; R. v. Murphy, 1869, L R. 2 P. C 535 ; R. v. Duncan, 1881, 7 Q. B D 198 ; R v. Hampshire, 1887, 3 T L R 712 ] The prisoners were indicted, together with John Smith, at the Quarter Sessions ior the borough of Kmgston-upon-Huil, for stealing from the prosecutor two hundred pounds in sovereigns and half sovereigns The indictment was removed into the Queen's Bench by certtoran, and the case was tried before Mr Justice Cresswell, at the Yorkshire Spring Assizes At the trial the deposition of Sarah Ann Garnett, taken before tie magistrates in the mode directed by 11 & 12 Viet c 42, s 17, was tendered in evidence upon the ground that she had kept out of the way by the procurement of one of the prisoners ; and evidence was offered on the part of the prosecution to shew that one of the bail of Smith had paid some money to a girl who called herself Sarah Ann Garnett, who was about the age and resembled in appearance the absent witness It was submitted, on behalf of the prisoners, that these was not sufficient proof of identity. Secondly, that if there were, the fact proved might have been an indiscreet act of his bail without the concurrence of (a) A similar mistake occurs in R. v. llhdye, 1 Den C C 405 506 REQINA V. MATHEW SCAIFE AND THOMAS ROOKE 2 DEK. 282. Smith. Thirdly, that under any view of the case, the deposition could not be evidence against Scaife and Rooke The learned Judge received the deposition in evidence, subject to the third objection taken to it In the following Easter Term, in the Queen's Bench, a rule nisi for a new trial was obtained on behalf of [282] Scaife and Rooke, on the ground of the improper reception of evidence. On the 2nd June, Trinity Term, ad IH51, this case was argued before Lord Campbell C J , Patteson J., Coleridge J , and Erie J Hunter for the Crown At common law, if a witness cannot be found after a diligent search, the deposition which he haa made before a magistrate is admissible as secondary evidence In the King's Bench, 21 Jac. I (Godb 326, cited in 1 Pitt Tayl Ev 332), it was said, that " if the party cannot find a witness, then he is, as it were, dead unto him, and his deposition in an English Court, in a cause betwixt the same parties, plaintiff and defendant, may be allowed to be read to the jury, so as the party make oath that he did his endeavour to find his witness, but he could not see nor hear of him." Depositions before a magistrate on a primary inquiry are taken m the presence of the prisoner, who has then full opportunity of t ross-examuung the witnesses There is no ground for any distinction between civil and criminal proceedings respecting the adnussibihty of evidence. (1 Pitt Tayl. Ev. 332 , 1 Salk 286 , Show. 363 ; Com. Dig. tit. " Testmoigne " Buller's N. P 242 ) In Lord Morley't, case (6 How St Tr. 771, S C.) it was resolved by the Judges, that the examination of a witness taken before the coroner was not rendered admissiblo, on proof that the witness himself could not be found after diligent search , but in proceedings before the coroner the prisoner is not necessarily present In Rex v Hayatt, 8 Car & P. 167, which was an indictment for felony, the deposition of a witness for the prosecution, who had gone to sea, was read in evidence on the part of the prisoner, with the [283] consent of the prosecutor The deposition of a witness who has been searched for and cannot be found, and is kept away by the means or procurement of the opposite party or prisoner, is admissible. Fifth resolution of the Judges (Rex v Lord Morley, 6 How. St. Tr 770, 771 , Rex v. Harrison, 12 How St Tr 834) Lord Campbell C J -The cases in the State Trials before the Revolution, as to the admissibihty of evidence, are entitled to very little weight. Hunter cited R. v Gutteridye (J Car. & P. 47.3 ; and Green, v. Gate with, Buller's N. P 243. Dearsly for the prisoners The case of The King v. Hag an (8 Car. & P 167), cited, is adverse, to the prosecution, for, in that case, the Judge, in the first instance, refused to admit the deposition, and it was afterwards allowed to be read only by consent of both sides In this case there was no consent The opinion of Pitt Taylor (Pitt Tayl Ev. 332), that there is no ground for any distinction between civil and criminal proceedings in this respect, is not correct, inasmuch as there is this differenc e, that in the former, a bill of exceptions will lie, but not in the latter case (a) Most of the cases cited referred to civil proceedings, and the cases of R v. Lord Mori-ey, and R v Harrison, are of slight authority En civil proceedings it might be .safe to admit the deposition of an absent witness, but in criminal cases, in many instances, it might prove dangerous, and put in peril both life and liberty Suppose, a man from spleen or malice preferred a charge against another, and then, fearing the [284] risk of discovery through a cross-examination, absconded, would it be fair to...
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