advantage of seeing the whole of the evidence on the depositions, and of being able to adapt the indictment to it. The judge also is enabled to make himself acquainted with the facts before the trial. Again, if there is any discrepancy between the deposition of a witness and his statement at the trial, this may afford substantial grounds for shaking his evidence. Lastly, if a witness dies, or is too ill to attend, his testimony is perpetuated."

"1

But it should be understood that only in quite rare cases can these depositions be read as evidence at the trial; this can be done when it has first been proved that the deponent is dead or too ill to travel, or is being kept out of the way by the other side; but a deponent who is called as a witness may be confronted with his previous testimony in case he contradicts it. One of the objects of the preliminary examination is to compel those who are able to give testimony for or against the accused to appear as witnesses at the trial; and this is done by "binding them over" to give evidence, that is, compelling them to enter into recognizances, so that if they are not forthcoming they will be debtors to the Crown.

There is one other form of preliminary investigation, namely, the coroner's inquest, but of this much has been said in another book of this series that we need not repeat,2 and the matter is hardly of first importance. It is the duty of a coroner to hold an inquest if he has reason to believe that any person has come to his death by any foul play, or that he has died suddenly from

1 From a judgment of Chief-Justice Cockburn, Law Reports, Queen's Bench Division, Vol. V., p. 7.

2 Chalmers, Local Government, pp. 95-98, and for the borough coroner, see pp. 80, 81.

some unknown cause, or if he has died in prison; and there are special provisions for bringing to the coroner's notice deaths in lunatic asylums and baby-farms. The inquest is held with a jury, which must consist of twelve or more-twelve must agree before there can be a verdict, but, subject to this rule, the opinion of the majority prevails. The coroner has power to compel the attendance of witnesses; evidence is given upon oath. It is usual to allow counsel or solicitors representing the family of the dead man, or any person who is under suspicion, to cross-examine the witnesses and address the jury. When there is a verdict of murder or of manslaughter, the coroner can bind over the witnesses to give evidence at the trial, and he will send their depositions to the court before which the trial will take place. The inquest may be useful for other purposes, but the main legal power that it has is that of finding a verdict of murder or manslaughter against some person. Then the coroner ought to issue a warrant for that person's apprehension and commit him to prison; in case of manslaughter he can take bail. This verdict is equivalent to an indictment, and the accused can be put on his trial before a petty jury without any proceedings before a grand jury. As a matter of fact, however, this is seldom, if ever, done. In general a murderer, before he comes to the gallows, will have against him (1) the decision of a magistrate that there is probable cause for putting him on his trial; (2) the verdict of a coroner's jury; (3) a bill of indictment found by a grand jury; (4) the verdict of a petty jury: but it should be understood that either the second and fourth, or the third and fourth of these are all that is essential. The investigation before a magistrate is

not essential, and a man may well be hanged though there has been no coroner's inquest.1

1 As to official inquiries into the causes of railway accidents, explosions, &c., see Citizen Series, Farrer, The State and Trade, p. 156. Possibly such inquiries will in time supersede the coroner's inquest, but they have no legal result; they merely obtain information which may, or may not, lead to a prosecution; witnesses however can be compelled to attend and give evidence on oath.

CHAPTER XII.

PROSECUTION.

1

THE arrest of the person suspected of crime, his examination before a magistrate, his commitment to prison or release on bail, though usual, are not necessary steps in our criminal procedure. A prosecution may begin with an indictment, or with a criminal information, or, in case of murder or manslaughter, with a coroner's inquisition; unless and until there is one of these a man cannot be put upon his trial before a petty jury. Of the coroner's inquisition enough has been said, and the criminal information shall be noticed hereafter; so we turn to the indictment, which is by far the most common means of bringing a criminal to trial by jury. It has an ancient origin. From the twelfth century onwards the King's judges were sent through the country to inquire, by the oath of good and lawful men of the neighbourhood, concerning crimes committed within that neighbourhood. The representatives of the neighbourhood became, in course of time, what we know as the grand jury, and their sworn accusations were known as presentments or indictments. The grand jurors were accusers who pledged their oaths to the truth of their accusation, and to this day an indictment

1 See below. p. 143.

is in form an accusation made by the grand jurors. "The jurors for our lady the Queen upon their oaths say" that (to curtail the story), on such a day and at such a place, John feloniously and of his malice aforethought did kill and murder Peter, against the peace of our said lady the Queen, her crown and dignity. The grand jurors still have it in their power to indict a man, although no one else has made, or is making, any charge against him; but, as a matter of fact, this is not now done. Some one prefers a bill of indictment to the grand jurors-a document stating, e.g. that John has murdered Peter-and the grand jurors, after hearing in private evidence for the prosecution but not for the defence, endorse the bill with the words " a true bill," if they think that there is a case which should go to trial, or with "no true bill," if the charge seems groundless. In the former case the accused, if in custody, will be discharged; but he is not acquitted: another indictment for the same crime may be preferred against him. In the latter case he will be " -called upon to answer the accusation. jury must consist of not less than twelve or more than twenty-three men. Of the qualification of grand jurors we shall speak below.1 There can be no indictment unless twelve at least concur.

arraigned " The grand

As already said, the first notice that a man may have of a criminal charge made against him may be notice that the indictment has been found, and, being indicted, a warrant for his arrest can at once be obtained and he can be brought to trial. Also it is to be remembered that " any person may present a bill to any grand jury accusing any other person whatever of any crime what1 See below, p. 165.