THE QUEEN GALVIN. T. T. 1865. Thomas Galvin sen.; and he states that he considered it questionCrim. Appeal. able, on the entire evidence, whether the prisoner Farrell had in any way aided and assisted at the stabbing of the deceased Hickie. The jury, on the charge against Farrell and Thomas Galvin jun. being left to them, acquitted Farrell, and found Thomas Galvin jun. guilty of the homicide. The question on the whole is, whether the paper purporting to be "the information" of John Hickie was rightly allowed to go to the jury as evidence against Thomas Galvin jun.? The first obligation imposed by statute in this country on Justices of the Peace, of taking the informations in writing of persons knowing the facts and circumstances of a crime charged before them, was by the 10 Car. 1, sess. 2, c. 18, ss. 3 and 4, corresponding with the provisions of two English statutes passed in the reign of Philip & Mary. I say by statute, because Lord Mansfield, in Fearshire's case (a), seems to have been of opinion that there was a common law obligation to the same effect. The statute of Charles applied to charges of felony only, and was repealed by the 9 G. 4, c. 53. Provisions, however, of the same kind were enacted by the 9 G. 4, c. 54, ss. 2 and 3, corresponding with the English Act of 7 G. 4, c. 64, ss. 3 and 4; and these provisions applied to cases of misdemeanour as well as felony. Neither the Act of Charles nor that of G. 4 contained any provisions making the depositions evidence in the event of the death or other unavoidable absence of the deponent; though a somewhat peculiar provision for making such depositions evidence, in a particular class of cases, was made in Ireland, by the 50 G. 3, c. 102, s. 5. However, on the principles of the Common Law, depositions taken conformably with the provisions of the statutes of Charles and G. 4, were in practice admitted in evidence, in the event of the death or unavoidable absence of the deponents. But then, as in every other like case, in order to their admission, strict proof was required, not only of the death or unavoidable absence of the deponent, but also, first, that the depositions had been taken on oath; secondly, that they had been taken in a judicial proceeding; and, thirdly, that the person (a) 1 Leach, 202. The provi- T. T. 1865. charged had had an opportunity of cross-examination. 66 66 person so accused, it shall be proved, by the oath of any credible "witness, that any person whose deposition shall have been so taken "is dead, and that such deposition was taken in the presence and hearing of the person accused, and that he or his Counsel or "attorney had an opportunity of cross-examining such witness, "it shall be lawful to read such deposition as evidence on the trial, "without further proof thereof, unless it shall be proved that the "same was not signed by the Justice purporting to have signed "the same." It will be observed that, by the direction of the statute, the deposition to which it relates is to be taken, first, on oath; secondly, in a judicial proceeding-that is to say, when a person is before a Justice charged with an indictable offence; and, thirdly, in the presence of such person, who is to have an opportunity of cross-examination. THE QUEEN ข. GALVIN. THE QUEEN v. GALVIN. T. T. 1865. But, in the event of the death of the witness being proved at the Crim. Appeal. trial of the accused, then, in order to the admissibility in evidence of the depositions, one only of these three matters need be proved; though before the statute it would have been essential to prove all three, in order to the admissibility of depositions taken under the previous Acts. A form, however, is referred to in the enactment; and according to that form (which is in a schedule to the Act), the deposition purports to have been taken, first, on oath, and, secondly, in a judicial proceeding, in the presence of a person charged with an indictable offence; and purports also to have the signature of a Justice of the Peace attesting the whole. The 36th section of the Act provides that the several forms in the schedule to the Act, or forms to the like effect, shall be the proper forms to be used; but no departure from any of the said "forms, or omission of "any of the particulars required thereby, or use of any other words "than those indicated in such forms, shall vitiate or make void the proceeding or matter to which the same shall relate, if the form "used be otherwise sufficient in substance and effect; and the words "used clearly express the intention of the person who shall use the "same." Having regard to the state of the law when this Act was passed, it appears reasonably clear to me that no form can be sufficient in substance and effect, so as to be admissible in evidence, on proof only of the death of the deponent, and that the accused was present, and had an opportunity of cross-examination, which form does not purport to have been taken, first, on oath, and, secondly, in a judicial proceeding; or on the occasion of the accused being before a Justice, charged with an indictable offence; and which does not purport to have the signature of the Justice attesting those two facts. I cannot even conjecture any more reasonable mode of ascertaining what is of the substance of the deposition required by the statute, than by looking to the previous law for what were the essentials to be proved in the like case, which are still required by the directory provisions of the statute, though the attestation of the signature of the Justice is substituted for the strict proof antecedently required. As the form of deposition used in the present case does not appear to me to show that it was taken in a judicial proceeding, or, that the accused was before the Justice charged with an indictable offence, it appears to me insufficient in substance; and, therefore, not admissible under the statute-that is, at least on the proof only of the matter required by the statute to be proved. I acknowledge the inclination of my opinion to be that, in consequence, it was not admissible at all; and that conclusion appears to me most conformable with the decisions on the Act of G. 4, in which it was more than once laid down that depositions under that Act, to be admissible, must be conformable with the Act; and also with the case of The Queen v. Newton (a), a decision on the English Act & 11 12 Vic., c. 42. Nor does this conclusion appear to me irreconcileable with the case of The Queen v Langbridge (b), which, as a decision, appears only to establish that the nature of the charge on which the accused is before the Justice need not be shown with the particularity of an indictment, and not that its being shown may be wholly dispensed with. As, however, in the present case, there may be some ground for saying that some evidence was given that a charge of stabbing had been antecedently made, and that the accused were in custody on that charge before the Magistrate in Barrington's hospital; and it was also proved, that the deposition was taken on oath; I am unwilling, without necessity, to decide that extrinsic proof of the essentials at Common Law might not make the deposition admissible. It does, however, appear to me that one matter, essential both at Common Law and under the statute, was not sufficiently proved— that is to say, that the accused had an opportunity of crossexamining the witness. It seems to me necessary for that purpose to be shown that the accused was apprised (previously to his being called on to cross-examine) of the charge against him. I think that he ought to be so apprised, and otherwise than by the statement of facts made by the witness in his presence, and to which he may or may not have attended; or, if that state of facts is (b) 1 Den. 448. (a) 1 F. & F. 641. T. T. 1865. THE QUEEN v. GALVIN. THE QUEEN v. GALVIN. T. T. 1865. to be considered as a charge on oath or an information in its Crim. Appeal. strict sense, it ought at least to be read over to him as such, before he can be legitimately called on to cross-examine. I think it is not to be assumed that the accused will attend to the witness in order to learn the charge against him; but that he is to be apprised of the charge in order that he may attend to the witness. In the present case, it not only does not appear that the prisoner was, on the occasion of the taking of the deposition in question, apprised of the charge against him, but it does appear that he was not so apprised, otherwise than by his being within hearing of the facts deposed to by the deceased, when stated by the deceased, and when read over to the deceased witness. I do not wish my decision to rest on any other matter peculiar to this case; and on this ground think the deposition was inadmissible. In the way of illustration, however, of the importance of the accused being apprised of the nature of the charge against him, in substance and practically, I cannot but refer to the evidence of O'Connor. According to that evidence, the charge or complaint made by the deceased on the night when he was wounded was, that the person who actually stabbed him was Thomas Galvin senior. The Judge informs us, that the variance between this statement and the statement in the deposition was urged, as one might expect it would be, by the Counsel for the prisoner at the trial. No one can doubt its importance; but how much more important might it have been, if known to the prisoner, as a material for cross-examination of the witness while living. Either the prisoner did or did not know that the charge was originally made in that form: there is no evidence that he did; if he did not, he lost from not being apprised of the charge, as made an important element of cross-examination; if he did, from his attention not being called to the information as a charge, his noticing the variance depended wholly on his distinguishing between the words "senior" and "junior" as the evidence was given. It is true that the charge or complaint, as originally made, might legally be described as a charge of stabbing against all the three prisoners as principals. But I do not allude to this circumstance |