| Chap. 164. |
Evidence against Felons.
And yet for Petty Larcenies, and small Felonies,
the Offenders may be
tryed at the Quarter-Sessions, and the Examinations and Informations may
be certified thither, and the Informers bound thither. See hereof,
antea,
tit. Fel. &. 3 H. 7. cap. 3. & Fitz. 251.
f. |
407 |
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The form of the Recognizance, see postea tit.
Recognizance. |
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The form of the Mittimus, see postea tit.
Mittimus. |
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The form of the Bailment, see postea tit. Bailments. |
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If the Offender, upon his Examination before the
Justice of Peace, shall
confess the matter, it shall not be amiss that the Offender subscribe his
Name
or Mark, under such Confession made by him. |
Confession. |
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If the Offender confesseth the Felony before the
Justice of Peace, and
notwithstanding he letteth him go, without committing or bailing of him;
this seemeth to be a voluntary Escape, and so Felony in the Justice, Cromp.
39, 44. |
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Lamb. 229. |
Also, if any Person shall be brought before a Justice
of Peace, and charged
with any manner of Homicide, (other than that which shall be done in
the orderly execution of Judgment) as it were done se Defendendo, or
by
casualty, (which are not Felonies of Death) or done by an Infant, a
Lunatick,
or the like; yet it is the Justices part, and safest for him, to commit
the Offender to prison, or at least to joyn with some other in the Bailment
of him, (if the Cause will suffer it) to the end the party may be discharged
by a lawful Trial, See antea tit. Homicide. |
Bailment. |
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The like is to be done where any Felony is committed,
and one brought
before the Justice of Peace upon suspition thereof, though it shall
appear
to the Justice, that the Prisoner is not guilty thereof: For it is
not fit that
a Man once arrested and charged with Felony (or suspition thereof) should
be delivered upon any mans discretion, without farther Trial, Vide Cromp.
34. Lamb. 229. |
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1 & 2 Ph.
& M. 13. |
The Justices of Peace have authority (by the words
of the Statute) to
bind by Recognizance, all such as do declare any thing material to prove
the
Felony, to give evidence against the Offender: And yet the Wife is
not
to be bound to give Evidence, nor to be examined against her Husband;
for, by the Laws of God, and of this Land, she ought not to discover his
Counsel, or his Offence, in case of Theft, (or other Felony, as it seemeth,)
See Stamf. 26. b. Nay, I have known the Judge of Assize
greatly to disallow,
that the Wife should be examined, or bound to give in any Evidence
against others that were parties to the same Felony, and not directly
against the Husband, See antea tit. Accessary. |
§. 2.
Evidence
by the Wife. |
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And Sir Edw. Coke, l. 6. b. saith,
That it hath been resolved by the Justices,
Termino Pasch. 10 Jac. that the Wife cannot be produced
either
against or for her Husband, Quia sunt duæ animæ in Carne
unas. |
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And yet it was resolved by the Judges (in the case
of the Lord A.)
that in Criminal Causes the Wife may be a Witness against her Husband,
especially where she is the party grieved. But that in Civil Causes
she cannot,
7 Caroli Regis. |
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' But in the Lord Audleys Case, the Lord
Audley had procured one to
' Ravish his Lady, and was assisting to it himself; and it was resolved,
' That the Wife might in that case be a Witness against her Husband:
' But the reason of that case, will not hold in other Cases of Felony,
' for there she was pars læsa, and the Case was capable of
no other
' proof. |
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