38. (1) If the accused does not admit the truth of the information or complaint, the justice of the peace shall proceed to inquire into the charge, and for the purposes of such inquiry shall hear the evidence of witnesses both for the complainant and accused in the manner hereinafter provided.
(2) The evidence of the said witnesses shall be given upon oath, and in the presence of the accused, or, if he be absent, in the presence of his counsel.