if/3 ajnrnfU Slam i^rlyiinl IGtbtaty p^ Cornell University Library The original of tiiis book is in tile Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024627675 Cornell University Library KDC 913.M13 Practical treatise on the criminal law o 3 1924 024 627 675 PEACTICAL TEEATISE CRIMINAL LAW OF SCOTLAND BT S^\ >i r dissuading mitted the crime. And in the same way if a person be perpetrator. induced by the principal actor to supply him with poison, knowing the murderous purpose for which it is intended, but before it is administered demand it back, * and repudiate the plot, he is not guilty of what the prin- cipal actor afterwards does with the poison, although he may be liable to punishment for having supplied it. But he will not be held free in either case, if his with- But instigator drawal of his instigation, or his demand for restoration drawai of man- of the means supplied, have not reached the actual per- fa^^ to" prevent petrator, through accident or otherwise, as from a letter to o"™^. the principal actor not arriving in time, or from its having been impossible to find him before he had done the deed (2). Lastly, in reference to guilt by counsel, it must be 1 See observations by Baron the instnunent with which the for- Hume (1. 157, 158.) in reference to gery is effected, art and part of forgery by making 2 Hume i. 279, 280. li* INTRODUCTION. Instigation given abeoad. OONDDCT AT THB TIME OF THE OFFENCE. Participation may be taken Tip at tlio mo- ment. Participation combined with previous con- cert observed that the instigator is not less guilty of an offence against the laws of Scotland because the instiga- tion was given in a different country. The guilt is not of instigation — that may be a separate offence — ^it is guilt of the crime which is done in Scotland. When there is sufdcient proof of the counsel the instigator is, in the eye of the law, present at the offence. If per- sons conspire in London to procure a murder in Edin- burgh, and hire an assassin who commits it, they are guilty of the murder in Scotland, and are amenable to the jurisdiction of the Scottish courts (1). Third, accession may be inferred from the accused's conduct at the time of the offence, either taken by itself, where there is no evidence of previous concert, or taken along with the light thrown upon it by the proof of pre- vious concert, where such proof is available. As regards the first case, although the participation be only taken up at the moment, it may nevertheless be sufficient. Thtis it has been laid down that it is not necessary to prove previous concert, and that " it is sufficient, if the " party were conscious of what was going on at the time " — if he knew that some article, no matter what, was " about to be stolen. If there was privity, even by so " slight a communication as by a nod or a wink, that " would make the party so privy guilty of theft art and " part " (2). And if this be true of participation at the moment without prior concert, it is of course more clearly true where there has been any previous concert between the parties. Thus those who watch while another commits a murder or a housebreaking, are equally guilty with the actual perpetrator (3). 1 See Will. Duncan and Alex. Gumming, H.O., March 11th 1850 ; J. Shaw 331 (Lord Mackenzie's opinion). a John Mackenzie and Eliza Johnston, H.C., Nov. 2d 1846 ; Ark. 135. — See also Jas. Dooherty and Will. Scott, Nov. 9th 1838 ; Bell's Notes 46. 3 Hume i. 265.— Hume i. 102, and cases o£ Donaldson and Calder: and Wilson and others there. — All- INTRODUCTION. H But on the otlier hand, whether as regards cases conduct at where there has been no previous concert, or cases in ™!"?!^''^ ■*- ' THE OFFENCE. which there has been concert, it does not necessarily persons acting follow that on every occasion where several persons are ^°f^^^V°%t together at the commission of a crime, each individual of act of an in- who is present must be held guilty of every act com- ™'*"* ' mitted by the others. Take the cAse first of there hav- ing been no previous concert. If a quarrel suddenly Sudden souffle arise between several persons on the street, two or three "" ^^^h .*J"^, . 1 , one individual on one side and two or three on the other, and a few stabbing, blows with fists or sticks are interchanged, whereupon an individual draws a knife and stabs one of his oppo- nents, the rest are clearly not art and part of this act, which was by no means a likely result of such a trifling brawl (1). Only those could be guilty art and part who actually encouraged it, either by inciting the person who did it (2), or by holding the injured party in the knowledge of what the principal assailant was doing (3), or by themselves making use of similar deadly weapons, or in some similar way (4). Again, take the Persons corn- eas e of several persons who, in pursuance of previous ^^^^ t^^n™" concert, are engaged in some illegal proceeding, but one offence, not in itself dangerous or indicating a disposition to outrage. For example, if one person go into an orchard to steal fruit, and another, who is watching outside, kill the orchard keeper, in such a case the thief who is in son i. 62, 289, 290, 291, and cases of there, — i. 273, case of Lindsay and Prior and M'Lachlan : and Boyd Brock there. — Alison i. 63, 64, and and others there. — In the case of cases of Marshall and others: and Jas. M'Eenna and others, H.C., Durrand and others there. April 8th 1826, it was laid down 2 Hume i. 267, case of Max- that — " If persons go into a house, well there. — Hume i. 271, case of and act so as to aid the individual Davis and Wiltshire, who takes, as by calHng off the at- 3 Hume i. 266, case of Koss and tention of the proprietor, they are Eoberts in note 3. — Hume i. 280, guilty art and part." — Lord Wood's case of Brown in note 1.— Burnett, MSS. 277, case of Kyach iu note. 1 Hume i. 270, and case of Bruce 4 See Hume i. 266, and case of and Arrot there, — i. 271, cases of Price Hanulton there, and others: and Crieff and Cordis 12 INTRODUCTION. Conduct at the time of the offence. "Whole body i'esponsible if all combined for highly cri- minal purposes. Body of men committing a robbery. Sufficient if combination formed at the moment. the orchard cannot be held guilty art and part of the killing, by the mere fact that he and the slayer were combined on an illegal enterprise (1). There must be proof that he concurred in or incited the other to do the deed. In such cases the rule seems to be the sound one, which infers responsibility against the whole body for the acts of the individuals composing it, where it is manifest that their concert has been from the first for a violent and outrageous purpose, or that such a pui-pose has been truly taken up at the time. Thus, if several persons violently attack an individual in order to com- mit a robbery, and he die in consequence of the injuries received, all who join in the attack are guilty of murder, though it cannot be proved which struck the mortal blow (2). Again, though there is no previous concert, if a com- bination be formed at the moment, that will be enough. Por example, in the case above supposed, of a sudden brawl taking place, if the whole of one party were to draw knives and rush on their opponents, they would all be equally guilty of the consequent injuries, though inflicted in reality by the hand of one of them only (3). In one case, where several persons were charged with murder, it was laid down by the late Lord Justice Clerk Hope — " In a charge of murder it is not '' necessary to prove previous concert. If they joined in " reckless assault upon the party — reckless whether he " live or die, and the party be killed, all joining are guilty, " though it is proved that one particular blow caused the 1 Hume i. 270. 2 Hume i. 266, case of Mackin- tosh and others in note 1. — Alison i. 65, 66. — Thefollowing note occurs in Lord "Wood's MSS., in the case of Bob. Hamilton and others, H.C., July 19th 1826, which was a case of robbery — "The Lord Justioe- " Clerk laiditdownas clear law that " all being engaged in the felonious "purpose, and one committing the " act while the others were present "and not interfering, aE were art "and part of the murder." — See also, Henry Swanston and others, H.C., Feb. 29th 1836 ; 1 Swin. 54. (Lord Justice Clerk Boyle's charge). 3 Hume i. 271, observations on case of Davis and Wiltshire there. INTRODUCTION. 13 " death, and though, it cannot be proved by ■whom the Conduct at THE TIME OF THE OFFENCE. " particular blow was struck. If united in a murderous ™" '^™-^ "^ " and brutal assault, all are responsible" (1). The situation of aU others in which the strongest pos- Person wit- sible case would require to be made out, in order to con- and^uot inter- vict as art and part, is that of a person being present Bering. at, and witnessing the perpetration of an offence, and not interfering to prevent it (2). It is manifest that in the ordinary case this alone, and without any proof of previous concert or of concurrence displayed at the time, would be but slender ground on which to convict. Still Might amount it cannot be said that in no circumstances would such ° ^"^ ^ v^ • conduct be sufficient. Suppose the case of a person who stands by and witnesses, without a remonstrance or even a sign of dissent, the protracted efforts of one in- dividual to drown another, or to throw him over a preci- pice. It seems difficult to draw any distinction between such a case and one of direct participation. Perhaps strongest case the strongest example that can be supposed of this sort, :^^g°^°^\ is that of an official corruptly standing by and not doing breach of the that which his office made it his duty to do, and so allowing a breach of the law. One case has occurred which strongly indicates how an official may be art and part of a crime, by allowing it to be committed, viz., that of a magistrate required as such to assist an officer who was being deforced, and declining to do so (3). With the exception of the case of Treason, the rules in accession reference to which are special (4), the law of Scotland ^^^^''J.^V does not recognise accession after the fact, except as an cognised in '^ „ , . , . . scots law. element of evidence, from which previous accession may be inferred (5). Besides these general principles as to 1 Thos. WUson and others, Jed- 3 Hume i. 397, case of Mitchell burgh, October 4th 1849 ; .Lord there.— Alison i. 606. Wood's MSS.— See also Hume i. 4 Hume i. 533. 268, and case of Brown and Wilson 5 Hume i. 281, 282, and cases of in note 1. Ooutts (from Maclaurin, No. 97), 2 Hume i. 265.— Burnet 270, case and Bryce there, of Smith and Taylor there. 14 INTEODUCTION. SPEciAt, guilt by accession, it will be necessary to notice specially RULES AS TO j_ii •■! i* j. ' ' ACCESSION m the rules as to accession m the case oi certain crimes, as, crS^ for example, the crime of Mobbing and Eioting, But it -wiU. be most convenient to notice these special rules in treating of the particular crimes to which they relate. Who CAN COM- Such being the general principles on which questions MIT CRIME. i? -li • ■ i.- i J -i • of guut or innocence are investigated, it is necessary, m the next place, to state the principles on which indivi- duals are held responsible for the acts which they com- mit, either as "actors or art and part," when these acts are of a criminal nature. The general rule of law is, that every person, whether he be a British subject or a foreigner, is answerable for the offences which he commits against the laws of Scotland, and within the jurisdiction of the Scottish Courts. There are only three situations which are exceptions to this rule, and in which a person is held to be exempt from punishment for crimes, viz. : T. Non- age. II. Alienation of Eeason. III. Compulsion. Nonage. ^ child under seven years of age is held in law not to 7 irresponsible, he liable to any punishment as a criminal (1). But children above that age may be prosecuted and pun- Beyond pu- ished (2). Children who have reached the age of captoi punish- puberty — 14 in males, and 12 in females — are liable to ment suffer eveu the highest penalty of the law (3). Alienation Insanity or Idiocy (4) is an absolute defence against a OF EEASON ° 1 Hume i. 35. — Alison i. 6G6. dicates that there is no inflexible 2 Hume i. 32, cases of Gun and rule of law which shall exempt Chisholm : Quin and Macdonald : children even under puberty from and Campbell in note*. — Hume i. 35, capital punishment, and fixes lOJ cases of Menzies : and TumbuU and years as the probable limit to which Hay in note 4. — Alison i. 665, case such severity might be extended. — of Macleish and Stuart there. Alison i. 663, 664. 3 Hume i. 31, and cases of Forbes: 4 The charge of the late Lord Middleton : Jamieson ; and Forres- Justice Clerk Hope in the case of ter there.— i. 32, cases of Urquhart : Geo. L. Smith and Eob. Campbell, Macdonald and M'Intosh : Main and B.C., Jan. 15th to 17th 1855 ; 2 Irv. 1, Atchieson: Moore and others : M'- may be referred to as a. most instnio- Laren and others : and M'Kay in tive statement of the general doc- notes 3 and *. — i. 83, case of Pirie trines as to insanity in criminal there. — ^Baron Hume (i. 34), in- INTEODUCTION. I5 criminal charge (1). But there must he truly an aliena- AuENAnoir tion 01 reason, such as misleads the judgment, so that —j: — -; the person does not know " the nature or the quality of must be total. the act " he is doing, or " if he does know it, that he does not know he is doing what is wrong" (2). If there be truly this alienation of reason, as connected with the act committed, he is not liable to punishment, though on aU other subjects his conduct may he rational (3). For example, if he put another to death, when truly under an insane delusion, as to the conduct and charac- ter of the person he kills, — ^believing that the person is about to murder him, or is an evil spirit, or being under some similar delusion, then it matters not that he has a general notion of right and wrong. For in such a case of delusion, as Baron Hume expresses it, " as well might he be utterly ignorant of the qualityof murder " (4). He acts knowing murder to be wrong, but his delusion makes him believe he is acting in self-defence, or against a spirit. Nor does it alter the effect of the fact of insanity Effect of at the time of the act, that the party has afterwards re- Jj^efte stme* covered his reason (5). Instances have even occurred of though the one short and sudden access of maniacal phrenzy, in which an act is committed, and where there is no recur- rence of the mania (6). Such a case of insanity is obviously the most difficult to prove, but if proved, it is as effectual to protect from punishment as any other. But, on the other hand, the alienation of reason must be oddneBs or substantial. Mere oddness , or eccentricity, however ^° t^nongh. 1 Hume i. 37. 4 Hume i., 38. — See Lord Justice 2 Hume i. 38, case of Thompson Clerk Hope's charge iu the case of there.— Jas. Gibson, H.C., Dec. 23d Jas. Gibson H.C., Deo. 23d 1844 ; 2 1844 ; 2 Broun 332, (Lord Justice Broun 332. ClerkHope's charge). —Alex. Milne, 5 Hume i. 39, and case of Kin- H.G., Feb. 9th to 11th 1863 ; 4 Irv. loch there. 301, and 35 So. Jur. 470 (Lord 6 Hume i. 41, 42, and case of Justice Clerk Inglis' charge). — An- Coalston there. — Ann Sparrow, drew Brown, H.C., Jan. 8th 1866 ; Glasgow, Sept. 2lBt 1829 ; Bell's 1 Sc. Law Eep. 98. Notes 6. 3 Hume i. 37, 38. — Alison i. 645, 646. INTRODUCTION. Alienation of reason. Monomania ■unconnected with crime no defence. Cause of insanity of no consequence. Intoxication no excuse. Compulsion. marked, or even weakness of mind, will not avail S,s a defence (1). And even monomania may be unavailing as a defence, where the delusion and the crime committed have no connection with one another (2), or where the party, though labouring under delusions, was yet aware that what he did was contrary to the law of the land. Disturbance to the mind is not enough, if the reason be not overthrown (3). If alienation of reason be proved, it is of no conse- quence how it was produced, whether by chronic disease or by a temporary cause, producing an access of delirium. It matters not though the cause have been the accused's own acts of excess (4). The law looks to the alienation of reason, and takes no cognisance of the cause which produced it. But intoxication alone is no ground of defence against a criminal charge (5). The defence of compulsion scarcely ever applies cor- rectly except in cases where a large body of persons 1 Hume i. 38, and cases of Gray : and Bonthom there, and case of Campbell in note 3. — Alison i. 654, 655.— Geo. Bryce, H.C., May 30th and 31st 1864; 4 Irv. 606. (Lord Justice General M'Neill's charge). 2 Eugene B. A. Whelps, H.C., July 25th 1842 ; 1 Broun 378 and Bell's Notes 5. 3 Jas. Gibson, E.G., Deo. 23d 1844 ; 2 Broun 332. (Lord Justice Clerk Hope's charge). 4 Alex. Milne, H.O., Feb. 9th to 11th 1863 ; 4 Irv. 301 and 35 So. Jur. 470 (Lord Justice Clerk Inglis' charge). The extraordinary rule laid do"wn by Sir Archibald Alison, (i. 654), that where there is a tem- porary alienation of reason in con- sequence of the accused's excesses, he is to be held guilty of what he does when so bereft of reason, if "this infirmity was known to him," but that if insanity supervenes on excessive drinking, "without the panel's having been aware that such an indulgence in his case leads to such a consequence," and he does some criminal act, he is to be more leniently dealt with, seems to be wholly inconsistent with prin- ciple. 5 Hume i. 45, 46, and cases of Hume; M'Lauchlan: and Hamilton and Green there, and case of Bowers in note a. Baron Hume seems to think that in the case of offences which consist in the uttering of words, such as using seditious lan- guage or the like, it ought at least to be a mitigation that the words were not deliberately spoken, but were uttered when the speaker was intoxicated, (i. 46, 47.)— See also Hume i. 570, and John Alves, April 14th 1830 ; 5 Deas and Anderson 147. INTRODUCTION. 1 7 force individuals to act along with them, or to assist Compulsion. them hy absolute compulsion, or by the constraint of Large body threats of death or serious injury. Such cases may occur ^^^uaia.^ ™" in great public commotions, where a person is forced against his will to aid rebels, or to go along with a treason- able or riotous mob (1). And in the same way, an Innocent per- innocent person may, from inability to escape, be a ship!'' ^"^ " witness of, or even to some extent an actor in, piratical offences (2). It is, however, quite possible to conceive a chUd com- case in which the defence of compulsion would be suf- parent. ^ ficient, though the constraint was the act of one indi- vidual. If a father were to concuss a young child into the commission of a crime, by threats of death or outrageous violence, it cannot be doubted that in such a case the compulsion would be held to render the child irresponsible (3). And the same might hold in the case wite by hus- of a wife, if the circumstances strongly indicated absolute ''^'"*" compulsion (4). In fixing the amount of punishment, the law looks not Aggrava- only to the act committed, but takes into consideration all the circumstances which may reasonably tend, either to aggravate or to palliate the offence. A crime may crime aggra- be aggravated in various ways, according to circum- o^^^ayl™"' stances. All those aggravations which are constituted by statute, or which consist in specialties, such as the mode of the commission of the offence, or the position of the injured party, or the character of the delinquent, will be noticed in speaking of the crimes to which they are severally applicable. But there is one aggravation which Previous oon- it is always competent to charge (5), viz., previous convic- ™''™- tionof a similar offence ; and itwUl therefore be convenient to notice the rules connected with it here, and once for 1 Hume i. 61, S2, and cases of Hews and others there.— Alison i. Eiddell : Fairny and others : Gil- 639, 640, 673. Christ : and Main and others there. 3 Hume i. 50. —Alison i. 672, 673. 4 Hume i. 49. 2 Hume i. 52. — i. 484, and case of 5 John or Alex. Campbell, H.O. June 3d 1822 ; Shaw 66. B 18 INTEODUCTION. Aggrava- tions. ■Conviction must have been previous to offence under trial, Co.nviction must have been for same But convic- tions of aggra- vated charges of the same crime compe- tent in case of unaggravated offence, and' ■vice versa. And where aggra- vations the same on both occasions this an additional aggravation. Slight varia- tions in de- scription be- tween convic- tion and new cliarge do not exclude con- viction. all In the first place, it is necessary that the conviction have truly taken place before the commission of the offence under trial. The aggravation consists in the act being committed by a person who had been before con- victed of the same offence (1). In the second place, the previous conviction must have been for the same crime as that in reference to which it is proposed to use it as an aggi-avation (2). But by this it is not meant that the previous conviction must be of the same crime, under exactly the same conditions as those in which the offence that is to be tried took place. It is matter of daily practice to use previous convictions of simple assault or simple theft, in aggravation of charges of assault with intent to ravish, or theft bj'' housebreaking, and vice versa. Where the mode of perpetration has been the same on both occasions, this may be an additional aggravation. Thus if the charge to be tried is theft by housebreaking, and the previous conviction was of theft by housebreaking also, then the prosecutor may found on both branches of the conviction as aggravating the offence. But where the specialties of the offence under trial have been differ- ent from those of the previous conviction, as for example, where the offence is theft by housebreaking, and the conviction is for theft by opening lockfast places, the prosecutor founds on the conviction as. one of theft only, without taking any notice of the aggravation (3). Further, if the crime of which the accused has been previously convicted be substantially that of which he is again accused, it does not necessarily follow that the prosecutor will not be entitled to found upon the convic- 1 Jess Mitchell or Carr, Glas- gow, January 1837 ; Bell's Notes 32. — John Graham, Ayr, Sept. and H.G., Nov. 21st 1842 ; 1 Broun 445 (this point is not mentioned in the rubric) and Bell's Notes 32. 2 Houston Catliie, H.C., January 27Ui 1823 i Shaw 93.— Ellen Fal- coner and others, HC, January 26th 1852 ; J. Shaw 646 and 24 Sc. Jm-. 175 (Lord Justice-General (M'Neil), then Lord Colonsay — and Lord Justice-Clerk Hope's opinions). 3 John Humphreys " and others, Dumfries, May 1st 1837; 1 Swin. 498 and Bell's Notes 276. INTRODUCTION. ] 9 tion, because there is a variation in some trifling parti- Aggbata- cular between the description of the one offence, and of ^^^L: the other. Thus, falsehood, fraud, and wilful imposition, may be charged as aggravated by a previous conviction of falsehood and;fra,ud (1), or a charge of uttering " any forged discharge, or other obligatory writing " may set forth as an aggravation, previous conviction of uttering " forged writings " (2). As a general rule the previous conviction must have Whether pre- been obtained in a Scottish Court. But cases have tion'mustbein occurred in which convictions obtained in British Courts Scotch Court. out of Scotland have been admitted. For example, a English con- victions of" received. previous conviction of theft in England, has, in two cases, -victions of theft been received as an aggravation of a theft committed in Scotland (3). And the same has been held where the English con- prosecution was under a British Act of Parliament, and mg offences re- the accused had already been convicted under the statute °^^''^^- in England (4). The question, how far and to what Difficulties in offences this principle may be extended, is one which tb« "^^7 of ^^- ■ ■ . .,1, T , , , 1 tending such a it IS impossible to answer. In statutory cases the com- rule, petency must depend upon the terms of the Act of Parliament ; but as regards charges at common law, it is plain that the reception of a conviction obtained out of Scotland can only proceed upon the assumption that a particular offence charged, or rather the name used in 1 Eob. Gunn, Aberdeen, April 3 Kenneth M'Crae, Perth, April 1832 ; Bell's Notes 33. 1839 ; Bell's Notes 33.^Jane Mac- 2 Samuel Deans, September 1839 ; Pherson or Dempstef, and others, Bell's Notes 33.— See also case of BLC, Jan. 13th 1862 ; 4 Irv. 143 Will. Liddell ; Bell's Notes 33.— and 34 So. Jur. 140. See also the case of Chas. S. David- 4 Chas. S. Davidson and Stephen son and Stephen Francis, BLC, Feb. Francis, H.C., Feb. 2d, 1863 ; 4 Irv. 2d 1863 ; 4 Irv. 292 and 35 Sc. 292 and 35 So. Jur. 270. The pre- Jur. 270, where a previous convic- vious conviction was not here, tion of a certain offence under the strictly speaking, used in the form name of a " misdemeanor " was of an aggravation, but for the pur- received, though, according to Scot- pose of enabling the prosecutor to tish rules of procedure, it would charge the accused with a "high have been called a, " crime and crime and offence." But the princi- offence." pie is the same. 20 INTRODUCTION. Agoeava- TIONS. Pleas in miti- CSATION. Goodcharacter. Youth. Influence of husband. Weakness of mind. charging it, means the same thing in both countries. It is, therefore, not easy to see how such a principle could be extended beyond one or two crimes, without involving the anomalous result of Scottish Judges, who are sup- posed to administer the law of Scotland only, being required to act upon their own knowledge, or supposed knowledge of the laws of the other divisions dfthekingdom. Pleas in mitigation of punishment are numerous, and many of them which have special application to particu- lar offences, will be noticed in their proper places. Those only which depend on general principles will be spoken of here. Previous good character is a plea which needs no comment. The plea of youth in the case of an offender whose conduct does not otherwise indicate de- pravity, is one which always receives considerable weight And this is especially the case where a father or mother has made use of parental control to cause a child to commit crime (1). The law also looks with some leni- ency upon offences committed by a wife where it is reasonable to presume that she acted under her husband's influence, unless indeed there be evidence which shews that she joined his criminal proceedings of her own free will (2). Lastly, in aU those cases in which there is weakness of mind, though not such alienation of reason as constitutes irresponsibility, this circumstance receives weight in the question of punish- ment (3). And in capital cases, where the court have no discretion, but must pronounce sentence of death, a re- commendation to mercy on the ground that the accused is of weak intellect, often leads to a reprieve (4). March 13th 1836 ; Bell's Notes 5. 4 Hume i. 38, and case of Bon- thorn there, and case of Gampbell in note 3.— Alison i. 653, 654.— Jas. Deenney or Denny Scott, Glasgow, January 4th 1863 ; 1 Irv. 132.— John M'Fadyen, Glasgow, Deo. 28th and 29th 1860 ; 3 Irv. 650. ' 1 Hume i. 49, 60, and case of Hrq^uhart in note 3. — Alison i. 671, 672. 2 Hume i. 47, 48, 49.— Alison i. 668. — Harris and Alithia Rosenberg, H.O., June 13th, 1842; 1 Broun 367 and Bell's Notes 7. 3 Will. Braid, March 12th 1835; Bell's Notes 5. — Thos. Henderson, INTEODUCTTON. 21 As regards punishments, it is only necessary to say, punishments. that there are three classes of penalties which are inflicted in general practice — death, petal servitude, and imprison- ment -with or without hard lahour, and solitary confine- ment (1). The additional penalties which are conjoined Death, to the punishment of death in the case of certain crimes, such as treason and murder; will be noticed in treating of these offences respectively. The punishment of penal Penai servi- servitude may be for life, or for any term not less than *" ^" five years (2). Imprisonment, though authorised by imprisonment, some statutes for a period of four years, is seldom inflicted in practice for a longer period than two years ; and as regards solitary confinement, although some statutes do not limit the period, most recent statutes contain a provision that solitary confinement shall not be continued for longer than one month at a time, and that the periods during which it is inflicted, shall not amount together to more than three months in each year. Banishment from Scotland seems still to be a com- Banishment, petent punishment in one particular case (3). 1 Under local police Statutes ordaining the offender to find secu- power is sometimes given to sen- rity for good behaviour for a certain fence juvenile offenders to be whip- time. ped. Further, as regards most 2 Acts 20 & 21 Vict., c. 3 ; and minor offences, the Judge has |the 27 & 28 Vict, c. 47. power at common law of inflicting 3 Celebrating Clandestine Mar- a fine instead of, or in addition to, riages, 1661, c. 34. — John Ballau- a sentence of imprisonment; and tyne, H,G., March 14th 1859 ; 3 Irv. in offences against the peace, of 352 and 31 Sc. Jur. 387. 22 THEFT. Eequisites of THEBT. Thing must be truly pro- perty of an- other. Pawnbroker selling pledged goods. Case of money lent. Article taken on trial, to be paid for or re- turned. Theft may he described generally as the felonious tak- ing and appropriation of property without the consent of the person to whom, it belongs, or in whose possession it is. The thing taken must at the time of the theft be truly the property of another (1). If the owner has been induced to give even a limited right to it, as by loan (2) or pledge, the person to whom such right is given cannot be guilty of theft in appropriating it, though he may commit fraud or breach of trust. Thus a pawn- broker is not guilty of theft if he sell the articles he has received in pledge (3). And where an individual had lent another J'20, and the borrower secreted a.JS5 note, and asserted he had only got ^15, a charge of theft of the £5 was held ill founded (4). Also where a person got a watch on trial, to be paid for or returned by a cer- tain day, and sold the watch without paying for it, it was held that there was no theft (5). In all these cases there was a limited right of property conferred by the 1 Hume i. 77. 2 If the loan be only for a specific purpose, appropriation may amount to theft (vide p. 48). 3 Agnes M'Ginlay or Docherty, and Will. Docherty, Glasgow, May 1st 1843 ; 1 Broun 648 and Bell's Notes 10. — Catherine Cross- grove or Bradley, H.C., Feb. 6th 1850 ; J. Shaw 301. 4 Brown v. Proc- Fiscal of Dum- fries, Dumfries, April 22nd 1846; Ark. 62. 6 Cowan v. M'Minn, H.C., Jan. 8th 1859 ; 3 Irv. 312 and 31 Sc Jur. 123. THEFT. 23 original owner, and wherever this is the case, the appro- Ebquisite9 of priation cannot be charged as theft. theft^ ^ On the other hand, cases may occur where the lawful Eeoovering possession being with another, as where goods have been fy' e^ck^^ seized by revenue officers, or poinded for debt, there °ffl™rs,or may be very nice questions as to whether the taking be theftuous or not. An indictment charging the recover- ing of goods seized by excise officers as theft, seems to have passed without objection (1). Baron Hume in- clines to consider such an act to be not strictly within the limits of theft, and his view, seems on the whole, to be the sound one (2). But if the goods have once been Goods con- condemned by the proper authority, there would appear "^^"""^"^ to be no sound reason to doubt, that if the person from whom they were seized recover and carry them off he is guilty of theft ; the condemnation having effectually transferred the property from him, so that he has no colour of palliation for his proceedings. In the case of wild animals and fish, which only be- wild animals, come property by capture, there can be no theft, unless they have truly become possessions, either by their hav- ing been killed or captured, or by their having been brought into confinement, as deer in an enclosure, rabbits in a house or warren, or young pigeons in a dove- cot (3). As regards the question what shall be held what is suffl- sufficient capture, an indictment seems to have passed "™ "^^ ^^' 1 Jas. Munro and others, In- an offence was e-ver truly held to verness, April 1833 ; Bell's Notes be theft. The strongest statement 23. — There are also numerous in- made by the latter is not borne out Sctments in the Collection in the by the reference given to Burnett, Advocates' Library, where this for while he states that in the case crime is charged alternatively as of Williamson the Court disregarded theft, or as a minor offence. a certain plea, Burnett's report of 2 Hume i. 77, note 1. — The cases the case does not hear that the of Williamson and Lockart, cited Court took any action in the by Burnett (118, 119), and the case matter. of Macdonald and Chisholm, quoted ' 3 Hume i. 81, 82, referring to bySir Archibald Alison (i. 272), are certain old statutes; 1474, c. 60^ not so distinctly reported as to in- 1535, c, 13—1587, c. 59—1579, c. 84, dioate, with any certainty, that such — Alison i. 279, 280. 24 THEFT. Requisites op THEFT. Oyster and mussel stealing. No conse- quence to whom pro- perty belongs. One thief stealing from another. without objection, which libelled the theft of herrings, the property, or in the lawful possession of a fisherman, they being inclosed in the net attached to his boat, and being thus "within" his "power and control." The theft was committed by cutting the net (1). By special statutes, wilfully and knowingly taking oysters or mussels from beds, the 'property of others, and suffi- ciently marked out or known as such, is made theft (2). As the essence of the crime consists in the thing taken not being the property of the thief, it matters not to whom it belongs, whether to the king, or to a corpora- tion, or a parish, or club, or an individual, or even to some person unknown (3). Such a case as the last may be easily supposed where the prosecutor could not possibly name any one as the owner ; e.g., if a railway store for lost luggage were broken into, and things taken from it, this would undoubtedly be theft, although the ownership of the articles was unknown. Nor does it matter from whose possession the thing is taken (4). It has even been held that one thief may steal property out of the unlawful possession of another thief (5). And there seems^ no reason why this should not be so. He is appropriating that to which he has no title, no matter in 1 John Huie, Inrerary, Sept. 10th 1842 ; 1 Broun 383 and Bell's Notes 26. This is consistent also with the whale fishing rule, that as long as a boat is connected with a whale by its line and harpoon, no one has a right to take the fish from that boat. ' 2 Aots3and4Vict., c.74^10and 11 Vict, c. 92. The punishment is prescribed not to exceed one year's imprisonment. The only reported case under either of these statutes is that of Bob. Thompson and Geo. Mackenzie, H.O., Dec. 26th 1842; 1 Broun 475 3 Hume i. 77, 78, and cases of Wilson and others : Johnston : and Macdonald and Jamieson there. —Alison i. 277. 4 Humei. 78 — Alison i. 273.— In the Lord Justice-Clerk Hope's MSS. in the ease of Will. Kidd, H.O., Feb. 25th 1850, the following oc- curs : — " Mr Logan Is it theft against captain of a vessel to steal cargo?" Court.— "Tes." 5 Samuel Wood and Agnes Mar- shall, Jedburgh, Oct. 6thl842; Bell's Notes 23. — See also the case of Elizabeth Beggs or Tonner, Glas- gow, Deo. 22 1846 ; Ark. 215. THEFT 25 whose hands he finds it. A case which has not yet Requisites of \ occurred, but one not unlikely to happen, will illustrate '^11^^ \^^ this point clearly. Suppose a police-officer receives \ information of the theft of a particular article easily identified, and finds it in the thief's house. It is impos- sjhle to doubt that if the ofQcer took possession of the aijticle and kept it, he would be guilty of theft (1). The taking must be felonious and without colour of Taking must title. For example, if goods be carried off under a poind- oppre°ssivr' ing, however irregular and oppressive, the production of poinding, the diligence would be a sufficient answer to a charge of theft, although a charge of oppression might be com- petent (2). Further, if the person who takes is in the Taking in be- rational belief that what he is taking is his own, or s'hip°or'con-'^" that he is taking it with the owner's concurrence, he is ™i'i^«>i'='' »* ^ owner. not guilty of theft (3). But his belief must be reason- Belief must be able, and it lies with him to prove it (4). Where the '^^^^"''^w^- offender is the husband or wife of the owner, difficult Case of hns- , . • r\ ■ i 1 1 ii band and wife. questions may arise. One case is reported where the accused proved herself to be the wife of the owner, and was assoilzied (5). And in another case the objection that the things stolen were the property of the husband of one of the accused, was certified for the opinion of the Court, and no further proceedings took place (6). But it has not been decided that a wife can in no case 1 John Smith, H.C., March 12th Stables there, (also Hume i. 73, note 1838 ; 2 Swin. 28 (Lord Cookbum's 2). — Hume i. 74, cases of Graham : opinion). In the Lord Justice- TrotterandEigg: and Gordon there. Clerk Hope's MS. Kotes to Hume, — Alison i. 271. the following occurs: — "In Larg 4 Hume, i. 74. — John Sandars, and Mitchell, 1817, forged notes June 17th 1833 ; Bell's Notes 20. were stolen — argued to the Jury 5 Janet Becket, Glasgow, April that they could not be in the lawful 26th 1831 ; Shaw 217 and Bell's possession of any one. But Court Notes 23. and Jury paid no attention to it." 6 Donald Macleod and Wedder- 2 Hume i. 73, 74, and cases of bum Dick or Smith, Perth, Oct. Adamson : and Stark and others 4th 1838 ; 2 Swin. 190 and Bell's in note 1,— Alison i. 271 to 273. Notes 23. 3 Burnett 118, case of Ker and 26 THEFT. Requisites of THEFT. Consent to taking ob- tained by fraud. Theft thougli owner aware at time that it is being com- mitted. steal from her husband (1). And a husband has been held relevantly charged with the theft of the proceeds of a bond, his right to which was excluded by antenuptial contract (2). When it is said above that if the taker believed he was acting with the owner's concurrence, he was not guilty of theft, the expression must not be understood as intended to cover the case of a person obtaining the owner's or custodier's concurrence by fraud (3). "Where a person called at houses at which goods had been left, and got delivery of them by representing himself to be the messenger of the tradesman, and stating that his master had sent him for them in order to rectify a mistake, it was held that theft had been committed (4). And the same was decided in the case of persons going to the luggage-room at a railway station, and represent- ing that they had been sent by the owner to get his luggage, or pretending themselves to be the owners, and so getting possession of articles, and carrying them off (5). Further, it is not to be understood that there is no theft because the owner, or those who are looking after the property, are aware that a theft is being committed. It is quite common for a person who suspects that things are being stolen from his premises to watch the supposed delinquent, or even to employ another to obtain the confidence of the thief, and by pretending to join in his scheme of plunder, to secure proof of the offender's 1 Joseph KUgour, H-C, Deo. 8th 1851 ; J. Shaw 501 and 24 So. Jur. 66 and 1 Stuart 122 (Lord Wood's opinion). 2 Case of Kilgour, swpra. 3 Hume i. 68, 69.— Alison i. 259, 260. 4 John Menzies, Glasgow, Sept. 21st 1842 ; 1 Broun 419 and Bell's Notes 17 — See also Will. Barr, Glasgow, May 4th 1832 ; S Beas and Anderson 260. — Margaret Grahame, Glasgow, Deo. 1847, referred to in the case of Jas. Chisholm, H.G., July 9th 1849 ; J. Shaw 241. 6 Henry Hardinge and Lucinda Edgar or Hardinge, E.G., March 2d 1863 ; 4 Irv. 347 and 35 So. Jur. 303. Some doubt seems to have been ex- pressed on a similar point in Samuel Michael, H.C., Deo. 26th 1842 ; 1 Broun 472 and Bell's Notes 8, but this apparently had referencetosome specialty, and no decision was given. THEFT. 27 guilt (1). In the same way, police-officers when they EnQnisiTEs or see a theft ahout to be committed, often wait until it has ^"'"^ been completed, but it has never been maintained that the offence on that ground ceases to be theft (2). While the taking must be to the effect of depriving Theft not ne- another of his property, it need not be for actual gain to gl^in*"'^ ^™ the thief. Though he hide the thing stolen, and never use it, his guilt is the same. Indeed his ultimate object may not be gain in the sense of profit at all, but only the satisfaction of indulging evil passion. If cattle be taken Theft from out of a field, it does not alter the theftuous character of "^^^ the carrying off, that the thief's only object was to slaughter them out of malice to the owner (3). Or if a person, from ill will to another, take an article belonging to him, and throw it down a well, or into the sea, the act of taking it is theft, though the only gain to the offender be the indulgence of his spite (4). The theft consists in his taking the thing into his own power, and out of the power of the owner, with the intent to deprive the owner of it. Nor is his guilt removed, by repentance Eepentanoe however early, or restitution however complete of what do'^or^t™*'*"' he has taken (5). On the same principle the value of *^<=* "* s^*- the thing taken is of no consequence, if it have any value at all (6). If a pickpocket secure but a letter or a pencil, 1 There is no case in the Ee- the crime was not established, bs- ports illustrative of this point, but cause of the circumstances of know- about the year 1862 several of the ledge on the part of the owner of money and check-takers in the the money. Theatre Royal of Edinburgh were 2 Will. Vair and others, March tried and convicted in the Sheriff- 13th 1835 ; Bell's Notes 14. Court for appropriating money be- 3 Hume i. 75, 76. — Alison i. 273, longing to the lessee. The lessee, 274. acting on suspicion, employed 4 Burnet 116, note, case of Gil- a detective as a check-taker, christ; (argument for panel and and the offences on which convic- answer). tion followed were committed with 6 Hume i. 79, and cases of Wat- the supposed connivance of the de- eon : Macgibbon : Somerville : and tective. But though the accused Mackay there, were ably defended by counsel, no 6 Hume i. 76, 77. — ^i. 102, 103. — attempt was made to maintain that Alison 1. 275. 28 THEFT. Eequisites op THEFT. It is theft if thing taken be property. Theft of writ- ings. Theft from mail. Bemoving bodies from graves not theft. But theft if un- interred body be taken. Plagium. utterly worthless to him, he is still guilty of theft. As regards the question what things can be stolen, the law makes no distinction, provided what is taken be pro- perty. Thus, it is theft to take wool from a sheep, milk from a cow, fruit from a tree, grass from a meadow, coal from a pit, stone from a quarry, fuel from a moss, firewood from a pile, potatoes or turnips from a field, &c., &c., (1). The trifling value of an article stolen has no bearing on the relevancy of a charge of theft, whatever influence it may have on the question of punishment. It is also theft to carry away writings belonging to an- other (2). One of the most instructive instances of this is a case where it was held theft, to snatch a receipt from a creditor who had just signed it, and carry it off without paying the debt (3). Stealing from the mail has been generally indicted as theft at common law, as weU as by statute, and appears to have been held theft before the passing of the statutes regarding Post-Office offen- ces (4), which will be treated of under a separate head.* It is not theft but a distinct crime to carry off dead bodies from graves.-f- But it is theft to take a dead body which has not yet been committed to the earth from those who have the custody of it (5). The only case in which carrying off a human being is theft, is that of children, when the offence is called Plagium. It may be committed in the case of any child which is under puberty (6). And the crime is theft whether the child be enticed away by blandishments, or carried 1 Hume i. 79, and cases of Miln : and Young there, and case of Gray in note 3. — Alison i. 278, 279. 2 Hume i. 80, and oases of Ma- thew : Wood and Dow : Eviot : Scott ; Steel : Graham : and John- ston there. — Alison i. 279. 3 Henderson v. Young, Dum- fries, April 19th 1856 ; 2 Irv. 414. • Fide, p. 81. 4 Hume i. 80, 81, and oases of Selon: and Jamieson there, and oases of Clark and Brown: Oliver; and Warden in note 2. — Alison i. 279. 6 Hume i. 85, case of Mackenzie in note 1.— Alison i. 281, 282. 6 Mary Miller or Gates, H.C., July 22d 1861 ; 4 Irv. 74 and 33 So. Jur. 705. t Vide, p. 87. THEFT. 29 off by force or .in any other way, and be tbe motive of Kequisites of the deed what it may (1). — ^fll The taking must be with intent to appropriate to the intent to de- thief's own purposes and so to deprive the true owner of and appro-"^ his property. If two persons have land contiguous to one p"?*^- r r J r a Using an ar- another, and one of them take and use the other's plough tide for tem- which he has found on the ground, his own plough notTheft!"^^™^ having been broken ; this is not a theft, but a trespass. In the same way, if a person take another's boat for a pleasure sail, or if a servant use a horse of his master's merely to go an errand of his own, and return, there is no theft (2). The most difficult case of this sort that can be Case of pur- supposed, is that of a person taking an article not with omSning"'^ the intention to keep it, but to set some benefit from it, secrets of a which cannot be obtained legitimately or openly. Sup- and return- ' pose, for example, he carry off a book containing the secrets ™^ ''' of some process of manufacture used by the owner of the book in his trade, in order to get possession of the secrets, and that he is detected before he has returned the book, 1 Hume i. 84, and cases of Irvine : MS. Notes to Hume, contain this and "Waldie and Torrence there, note — " I have considerable doubt and oases of "Wright: Douglas: and of this." Compare with John Ash Mill in note 2.— Alison i. 280, 281. and Daniel Cairns, H.C., May 19th —Helen Wade, Glasgow, Oct. 2d 1848 ; Ark. 493, where it was laid 1844 ; 2 Broun 288. down that if a thief searching for 2 Hume, i. 73. — Alison i. 270. — more valuable booty, took articles Sween M'Intosh, Inverness, April out of a drawer, he was guilty of 16th 1841 ; Bell's Notes 20. It has stealing them, though he did not been laid down that if a person be think it worth while to carry them attempting to commit a theft, and away. It is certain that there are take a key from where it has been laid many cases in which the charge of for the purpose of opening a look, and housebreaking set forth that it was not with the intention of carrying committed by means of the key, it off, he is not guilty of stealing which the accused was said to have the key. Peter Alston and Alex. previously stolen, e.^., Janet Beoket, Forrest, H.C., March 13th 1837; 1 Glasgow; April 26th 1831; Shaw Swin. 433 and Bell's Notes 20 (Lord 217. — A. Thompson and othera. Justice - Clerk Boyle's and Lord H.C., June 4th 1827 ; Syme 187. Meadowbank's opinions. This But these, again, appear to have point, as regards Lord Meadow- been cases where the taking of the bank's opinion, is not noticed by key was not simultaneous with the Mr Swinton). In reference to this theft, but took place some time be- point the Lord Justice-Clerk Hope's fore it. 30 THEFT. Eequisites of or even after he has returned it. Is it a good defence to ^ a charge of theft in such a case, that there was no intent to deprive the owner of his property ? It is difficult to see how such an act can be held not to be one of theft. The property is not openly used as in the case of a tres- pass, but is clandestinely taken. And it is retained from the true owner, not as in "the case of the plough or boat, merely to use it for a temporary purpose to which it is adapted, but for a purpose of nefarious gain to the taker, by depriving the owner permanently of a valuable secret (1). Before proceeding to describe the modes of commit- ting theft, it may be mentioned here that the taking of the property of another in a felonious manner, if accom- panied by violence, may fall under a different head from that of theft. By this it is not meant that every case in which force is employed is not theft (2). If the only force used be a knock on the hand so that money falls from it (3), or a sudden snatch or pull (4), the case is one of theft, though the party be jostled (.5), and the violence be such as to break the article, as in the case of a watch-guard (6). Even if the injured party catch for a moment the hand of the thief, this may not be suf6- DlSTINCTlON BETWEEN THEFT AND EOBKEBY, &C. Every shew of force does not constitute robbery. 1 There have been only two cases of this description in practice, but neither of them can be said to decide the point one way or other. In the flrstcase(Dewar, Glasgow,Oct. 1777; Burnett 115 and'Hume i. 75, note 1,) the crime was charged as theft, and alternatively as an innominate offence, and conviction followed for the latter. In the second case (John Deuohars, Perth, Sept. 16th 1834 ; Bell's Notes 20) the accused pled guilty to the charge of theft, and urged the circumstances in miti- gation. 2 Hume i. 77.— Alison i. 236, 237, and case of Highlands there, — ^i. 264. 3 Bob. Edmonston and Jas. Brown, March 13th 1834; Bell's Notes 22. 4 Walter Monro, Dec. 22d 1828 ; Bell's Notes 21.^John Millar, Glas- gow, Sept. 25th 1829 ; Bell's Notes 21.— Ann Watt or Ketohin, Feb. 24th 1834 ; Bell's Notes 21. This last case came undoubtedly very near robbery. In the Lord Justice Clerk Hope's MSS. there is marked opposite it the word "robbery." 5 Wni. Duggin and John Ketohen, Deo. 1st 1828; Bell's Notes 21. 6 Will. Cummings, Aberdeen, April 1830; Bell's Notes 21.-^ane Paterson, May 8th 1838; Bell's Notes 22. THEFT. 31 cient to make the act a higher one than theft (1). Nor DisTmcTioif will it alter the character of a theft that the thief having theft aud stealthily, or hy a snatch, got possession of an article, ""°°'^'''^' ^°' violently resists the owner's efforts to recover it (2). an'e to '''''"" Those cases in which the violence committed raises the recovery of , . , ™ , T » •■,-, 1 -1 property stolen. crime to a higher onence than theft, will be noticed under the head of Eobbery and Stouthrief* It will conduce to clearness to consider the modes in Modes of which Theft may be committed under two heads, I. theft!""' Theft, where the delinquent has not previously had the thing stolen in his custody, or been connected with it in any way, and II. Theft, where the delinquent has an an aHicle in Ms custody, and forms and carries out the intention of appropriating it. I. To constitute theft by taking a thing not previously Theft by in the custody of the thief, it must be removed from custody of where it is. It is not theft if cattle be killed in the ^«othek. . . Amotio. owners' pen out of spite, or if a mob enter a house and break the owner's property (3). Audit is not enough that the thing has been touched or moved ; it must be truly removed from where it is. It is not completed theft if Delinquent the delinquent's hand be caught in the pocket and held "ot.^^*™*''® there (4), or if a snatch or ineffectual pull be made at a watch-chain, or if the owner seize his watch before it has been completely drawn from his pocket and retain his hold (5). But if the delinquent has had it entirely re- Momentary moved from the pocket, even for a moment, the theft is euffiorent. complete, though the owner at once seize and recover it (6), or the thief give it up, or accidentally let it fall, 1 Mary Eobei-tson, Glasgow, 3 Hume i. 75. — Alison i. 273. Sept 1837; Bell's Notes 21. ( 7»& Malicious Mischief, 133). 2 Daniel or Donald Stuart, March 4 Hume i. 70.— Alison i. 265, 266. 13th 1829 J Bell's Notes 42.— Thos. 5 Will. Cameron, Glasgow, Deo. Innes and Ann Blair, Dec. 8th 22d 1851 ; J. Shaw 526 aud 24 1834 ; Bell's Notes 42.— Joan Eeid Sc. Jur. 140. and Helen Bamet, H.O., Feb. 19th 6 Will. Lyndsay, March 2d 1844 ; 2 Broun 116. 1829 ; Bell's Notes 19. » Vide p. 62. S2 THEFT. Theft by taking from custodt of ANOTHER. Detachment from person of owner not necessary. Theft from a place. Thing must be removed. or throw it down (1). Absolute detacliment from the person seems not to be held necessary. Thus it would appear that if a thief has drawn a watch out of the owner's pocket, and got it into his hand, it is not a good defence that the watch was still connected with the owner's per- son by a guard-chain (2). Where the delinquent is detected or scared when taking things from a house, or field, or cart, the theft is not complete by an article having been touched or moved merely. It must have been removed from the place where it was, either by being actually taken up or being dragged along the floor, or the bottom of the cart, to a difi'erent place from that it previously occupied. For example, it is not sufficient if a package, lying loose in a waggon, be merely turned up on end (3), although it would be theft if it were moved from one end of the 1 Humei.70, 71.— Alisoni.266. — A case of this sort occurs in Lord Cookbum's MSS. (Jas. Macdougal, Glasgow, Sept. 20th 1843). The accused was taking a handkerchief from a gentleman's pocket, when the gentleman instantly turned round and seized hira, the handkerchief falling to the ground. 2 See Will. Cameron, Glasgow, Deo. 22d 1851; J. Shaw 526 and 24 Sc. Jur. 140, where the watch was not detached from the chain, nor the chain from the owner, and where the question was left to the Jury whether " the watch was removed by the panel from the pocket, or had he it in his band for any period however short ?" — See also the case of Jas. Purves and Geo. Mackin- tosh, BCC, Nov. 9th 1846; Ark. 178 (a case of robbery, but the principle is the same). In the case of Jas. ConoUy, Ayr, Oct. 9th 1849 ; Lord Justice Clerk Hope's MSS. and Lord Wood's MSS., the evidence was, that the accused had drawn the watch out of the pocket along with a chain and seals, but that it remained attached to the owner's person by a separate guard chain. In the Lord Justice Clerk's MSS. the following note occurs: — "Court held it to be theft when pulled out of the pocket, though man caught and guard not broken, but left it to Jury to say whether faxit that he had it in his hand out of the pocket was fully proved. Lord Wood's MSS. contain this note:— "It is not the less theft that it had the separate protection of guard-chain." In reference to the same case, the following note occurs in the Lord Justice Clerk Hope's MS. Notes to Hume: — "Panel pulled watch out of pocket by chain, owner caught him, and before guard was broken or taken off. Lord Justice Clerk, with full assent of Wood, laid it down as in law theft." 3 Hume i. 70, and case of M'- Ewen in note 2. — ^Alison i. 266. THEFT. 33 waggon to the other, or 'from the bottom of the boot of a Thbft by coach, though it had not been completely taken out at cu^roDY^oF"" the top (1). Where cheeses were placed in a warehouse amothbb. one above another, it was held not sufficient that a cheese was moved half off the one below it, as this did not imply that the cheese had been laid hold of at all, and might have happened by displacement when the delin- quent was skulking to avoid detection, and further, as it was not possible to be absolutely certain that the cheeses had previously been placed exactly above one another (2). So also it is not sufficient if the clothes of a bed have been rolled to the bottom of it, or a shirt in a drawer rolled up for the purpose of being lifted (3). But the Semovai, instant the thing is truly moved away from where it was ^li Jh ™"^ the theft is complete (4). If a horse be taken from a sufficient, stable, or cattle or sheep from a pen or field, or if a sheep be lifted on the shoulder of the thief, or fowls be taken up from the ground, the act of theft is in all these cases complete (5) ; or if things be taken from a drawer or shelf, or bed, by the hands of the thief, even though they be placed on the floor and left there, the theft is com- plete (6). Nay, it is sufficient if the accused have put Articles moved his hand in at a window, and either with his fingers or a atwk?° stick have drawn articles towards him from where they were lying (7). In certain cases, a smaller amount of re- 1 These cases have occurred in Dumfries, April 29th 1836 ; 1 Swin. England.— See EusseU, 4th Ed. ii. 205. 153. 5 Hume i. 70, 71, and cases of 2 Jas. Hoyes, H.O., Dec. 11th Smith and" Forrester: Eiccards: 1848; J. Shaw 134. — See also BaiUie ; Gordon : and Anderson and Hume i. 72, case of Maoqueen and Lindsay there. — Alison i. 266, 267. BaiUie in note 3.— Will. Harvey, 6 Hume i. 71, 72, and case of 7th Nov. 1833; Bell's Notes 19. Snaile there, and case of Welsh in 3 Hume i. 70, case of M'Ewen in note 2, and case of Maoqueen and note 2 Alison i. 269, and case of BaiUie in note 3.— Alison i. 267,268. Boyle there. — John Paterson and Alex. Glasgow, 4 John M. Carter, 1832; BeU's H.C., March ]5th 1827 ; Syme 174. Notes 19.— Bob. PhiUps and David (Lord Justice Clerk Boyle's charge). Simpson, Nov. 8th 1832 ; BeU's 7 Cornelius O'Neil, H.O., March Notes 19.— Will. iS. M'Oaughie, 10th 1845 ; 2 Broun 394. C 34 THEFT. Theft by moval may be sufficient than in others. Where an article ' cuS^Sr is secured, as by being tied or chained, and the fastening f || ^MOTHER. ^g g^^^ ^jjg slightest movement from where it lay will be ; mere fasten- sufficient. The thief may be held here to have truly 'any mOT^ement taken possession of the article by feloniously destroying ' sufficient. ^^^ security affi)rded by the fastening, so that any move- ment of the article afterwards completes the theft. If a chest screwed to the floor be unfastened, and moved ever so little, the theft has undoubtedly been accomplished (1). Or referring to a case already noticed, that of a package in a waggon raised on end : it cannot be doubted, if the package had beein originally fastened down by cords, and the cords had been cut, and the package then raised, that the theft would have been complete. Thus, where thieves cut the fastenings of luggage at the back of a carriage, so that it fell to the ground, and they were scared before they could again lay hands on it, the theft was held completed (2). Eemovai of an Again, the removal of a box or drawer completes the t£ ftrfrof *^^^* °^ ^*^ contents. If the till of a shop be taken out its contents, of the Counter, the theft of the contents as well as of the tQl is fully accomplished (3). Nor is it any defence to No defence that maintain that the articles removed were not intended to be placed in ' taken, but were only displaced in a search for other search for things. If thieves, searching for booty, take out the other booty. ° p n ■, contents of a drawer, they are guilty of stealing the things they so take out, though they may not consider them worth carrying away (4). Aggravation ^heft by taking an article from the custody of OF THEFT FROM auother may be aggravated in various ways, as re- ANOTHEE. °^ gards the mode of committing the theft. One of the highest aggravations is that of housebreaking. By 1 Hume i. 73.— Alison i. 267. Walker, Stirling, Sept. 3rd 1836 ; 1 2 Hume i. 72, case of Pray or Swin. 294 and Bell's Notes 209. Perry and others in note 2. 4 John Ash and Daniel Cairns, 3 Jas. Smart, July 13th 1837 ; H.O., May 19th 1848 ; Ark. 493. BeU's Notes 19. — See also David THEFT. 35 "house" is implied a roofed building of any kind (1), Housebreak- so fastened as to indicate that the owner places reliance 2E: on its strength to prevent property from being taken out of it (2). Breaking into an unfinished house even, if it be Unfinisiiea properly secured, is housebreaking (3). Where there are ^^^- mrterent tenants m the same tenement, having separate houses in , r\_ ^ T J* -i 11 same tene- entrances, even though each lamily .occupy but one room, ment. housebreaking may be properly charged if any of the rooms be violated, each room being held as a house in itself (4). On the other hand, a thief already within a house does not commit this aggravation if he break open an inner fastening of the house, such as the door of a storeroom ; or if, being in an inn, he break into a lodger's room (5). The violation of security must relate to the entering of a house in order to constitute the aggravation. Housebreaking may be committed although no actual injury to injury have been done to the building, as by break- necessary."" ing down doors, or breaking through walls or floor or ceiling, or dashing the hand through a window. What constitutes the aggravation is the violation of the security of the buUding (6), whether this be done by actual violence, or by opening the secured doors Opening locks of the house, or by taking an extraordinary mode 1 The term shopbreaking was 292. — John Fraeer, June 20th 1831 ; formerly used in some cases (Hume Bell's Notes 41. — Jas. Easton and i. 104), but the term housebreaking others, July 2nd 1 832 ; Bell's Notes is properly applied in every case 41. In these cases a hen house and where a building is broken into. In a cellar were broken into. the case of David Millar and John 3 Hume i. 103, and case of Macdonald Glasgow, Jan. 4th 1831, Thompson there. — John Wright and tried before Lord Monorieff, the David Johnstone, July 3rd 1837; charge was "theft by housebreak- Bell's Notes 41.— See also John ing,"andthefactswerethattheacou- Boax, H.C., Nov 7th 1827; Syme sed had broken into a church, and 248 (Indictment), where the charge stolen bibles from the pews ; (Lord was for breaking into an addition Moncrieffs MSS.), andasimilar act then making to the house, was libelled in the same way in 4 Alison i. 293, and case of Cowie the caseof James Stewart, Glasgow, there.— Christian Dunoan,Aberdeen, April 1841; Indictment and Lord April 24th 1849 ; J. Shaw 225. Justice-General Boyle's MSS. 6 Hume i. 101.— Alison i. 287. 2 Hume i. 103.— Alison i. 291, 6 Hume i. 98. 36 THEFT. HousEBKEAK- of Biitry -without violence, as by raising and coming in ^^^^ at a window (1), or by passing down a chimney, or pk^e"nft ^^ througb a sewer (2). In the same way, the security of Peraon^'^r' *^^ building is held to be violated, where one who is building re- within a building unfastens any secured part of it, and Sri^d return- afterwards returns and effects an entry (3) ; or where a ing and enter- gepvant, acting in concert with thieves, unfastens a Servant in window to enable them to enter (4) ; or where the thief thre"v^. ^"^ ^y knocking or ringing causes the door to be opened. Thief rushing and rushes in and carries off property (5). But the opeMd!" ^°™ violation must be of the security afforded by the build- ing itseE Climbing over the wall or railing of the yard in which a building is situated is not sufficient to con- stitute the aggravation. Opesing Housebreaking may be committed by opening any outer door of a building which is secured. The question Question where has been raised, but not decided, whether it constitutes door fastened -i t t ^ j. jy j j. j • it ' by a weight housebreakmg to force open a door not secured m the placed behind ordinaiy manner by loci^ or bolt, or chain, but by some weighty article, such as a chest, placed against it (6). If the door is so secured that it requires force to move the chest, there can be little doubt that the crime is house- breaking. The question would probably resolve itself into one of proof. If a weight is placed against a door merely to prevent it swinging open, it would not be housebreaking if, in opening the door in the ordinary way, the weight so placed were pushed aside. But if the article placed there for security be so heavy as to present a positive obstruction, and to require actual force for its removal, then there seems little difference between burst- 1 Hume i. 100, and cases of 5.— Alison i. 282.-John Mann, Feb. Watson: Mills and Stewart: and 13th 1837; Bell's Notes 37. Eobertson there , and cases of John- 3 Hume i. 99. Alison i. 287. ston and Eiddell: and Allan in note 4 Hume i. 101. Alison i. 287. 2, and oases of Love: Anderson: and 6 Hume i. 100. Alison i. 287. Johnston in note 3. This might with propriety be called 2 Hume i. 99, case of Courtney etouthrief. there, and case of Hunter in note 6 Ann Mackenzie, H.O., Deo.. 15th 1845; 2 Broun 669. THEFT. 37 ing open a door so secured, and forcing one secured by a Opening piece of wood nailed across the tack of it, which would ^ZJ^ undoubtedly be housebreaking (1). But though no force be employed, the opening of a door may still be housebreaking. If false keys or picklocks be used (2), Use of false or if the true key be found or stolen, or obtained by false authorised"us6 pretences (3), or be taken from a place where it has been °^ *"^^ ^^^' hid by the owner (4), or be illegally kept by a servant after he has left the owner's employment (5), and the thief open the door by means of it, the aggravation of housebreaking is committed. Still farther, if a person be entrusted with a key for the specific purpose of carry- ing it to the owner, and he use it to get access to the premises, he is guilty of housebreaking. Whether this Question *- o ./ ^ . ^ - wnetner person would hold in the case of a shopman entrusted with the entrusted with ordinary keeping and custody of the key, is a different ^^ fpmmit ^ question, and has not yet been decided (6). It would '^^^^"'■'^"^ be difficult in such a ease to hold that the shopman had violated the security of the premises. The entrusting of the key to him by the master indicates, that he does not rely on the strength of his locks to protect him from this individual. It is similar in character to the case of a master giving a key of his own office-desk to his head clerk. In such a case, "theft, especially when com- mitted by means of opening lockfast places,'' could scarcely be a sound charge, the owner himself having given the power and right to open the desk. It would 1 Hume i. 100, case of Allan and Gunn: and Thompson and in note 2. — Jas. Arcus, H.O., July others, in note a. — Alison i. 284. — 25th 1844 5 2 Broun 264. The in- A. Thomson and others, H-C, June diotmentwas not objected to on this 4th 1827; Syme 187. — Archibald ground, though it was on another. Mackenzie, July 9th 1832 ; Bell's Forcing open a door, described as Notes 37. " nailed up," has been held sufficient 4 Alison i. 285, and case of Mac- — John Paterson, H.C., Jan. 6th donald there. 1842 ; (Lord Moncrieff's MSS.). 5 Henry V. Jardine, fl.C, July 2 Hume i. 98, 99, and cases of 19th 1858 ; 3 Irv. 173. Snaill: Pringle: and Smith and 6 John Farquarson, H.O., June Brodie there.— Alison i. 284. 26th 1864 ; 1 Irv. 512 (Lord Justice 3 Hume i. 98, and cases of Fraser General M'Neil's opinion). 38 THEFT Opening BOORS. Poor must have been secured. Key left in look. Question — ^key hanging on wall in sight. Eemoving in- side fastening. Ehteking by WINDOWS. Undoubtedly he housebreaking if the shopman who was entrusted with the key was to enter, not by means of the key, but by some other mode, as by breaking open a back window. To constitute housebreaking by opening doors, they must have been secured. And it is not therefore house- breaking to open a door by the handle, or by lifting the latch (1), or removing a hook and eye check from the outside (2). Even if the door be fastened by a key which is left in the lock, it is not housebreaking to turn the key and enter, for it is in these circumstances nothing more than a handle, and cannot be said to be relied on to secure the building (3). It has not yet been decided whether in the case of a key taken out of the door, but left hanging on a nail in sight of the thief, housebreak- ing is committed if he take down the key and use it (4). It is housebreaking if an inside fastening of a door be removed, as by cutting a hole through a door, inserting the hand, and raising a latch which has no handle on the outside, or by passing a knife through a chink, and working a bolt out of its socket (5). It may even be housebreaking to pass the hand through a hole in a door, though not made by the thief, and so raise the latch, if that be not the ordinary mode of opening the door (6). A window not being a proper entrance to a house, it is 1 John Smith or Stevenson, ' Glasgow, April 29th 1834; Bell's Notes 36. 2 Alison i. 286. — Janet Wilson, March 15th 1837 ; Bell's Notes 37. — John Anderson, H.C., Nov. 17th 1862; 4Irv. 235. 3 This was finally decided, after conflicting decisions, in the case of Peter Alston and Alex. Forrest, H.C., March 13th 1837; 1 Swin.433 and Bell's Notes 37 Alison i. 285, 286 contra. 4 See the case Alston and Forrest, mpra. (Lords Mackenzie's, Mon- criefPs,andMedwyn's, opinions), also Henry V. Jardine, H.C., Jnly 19th 1858 ; 3 Irv. 173.)Lord Deas' opinion.) 5 Hume i. 98. — John Devine and Francis Polin, Glasgow, Sept. 21st or 22d 1829 ; 5 Deas and Anderson 145 and Bell's Notes 36. (D. and A. give 21st as the date. Bell gives 22d.) 6 John Maclean, Nov. 17tli 1828; Bell's Notes 36.— John Grant 26th May 1835; Bell's Notes 36. — Ann Ashton, H.C., March 14th. 1837; 1 Swin. 478 and Bell's Notes 36. THEFT. 39 liousebreakiBg to raise a window and so enter, thougli it Entehwg by. was not fastened in any way (1). And this holds even ^ ' though the window be slightly open, if the thief, in order qj. parUy open to get his arm or body in, raise the sash higher than it window, was before (2). But it is not housebreaking to enter by Entering by a window which has been left open (3), if it be not "^t honle-'"' opened further, unless the window was in such a posi- breaking, tion, that it is no special exposure of the premises to risk to leave it open. For it would appear, althoiTgh it has imiees window never been expressly decided, that if the open window be partof buUd- on an upper floor (4), or in the roof (5), it would be '"s- housebreaking to enter by it. Unsecured folding blinds, inside an open window, Folding blinds, and which a puff of wind might blow open, would pro- bably not be held such a protection to a house as to cause entering by the open window to be held housebreaking (6). On the same principle where a loose board was Loose board placed behind a broken pane of a window, and the thief ^'"""^ ^'°^^'' pushed the board aside, and took out articles with his hand through the hole, the charge of housebreaking was held not to be established (7). It jnight be different in the case of a broken pane, which could only be reached by climbing (8), or of a wire guaze blind in a fixed . frame. If such a blind were pushed down, or if bolts Frame blind holding it to the window frame were drawn, this would Bye3l)r^n- dow. 1 Hume i. 100. — Alison i- 283. is near the ground." — Alison i. 283. 2 Alison i. 283, 284. —John Bob. Clapperton, H.O., Deo. 9th Munro and John Gillon, 16th July 1833 ; Bell's Notes 36. 1834 ; Bell's Notes 38. — Will. 5 See notice by Lord Cowan, of Vair and Simon Meadoworoft, Deo. an unreported case in the case of 2d 1834; Bell's Notes 39.— Cor- John Carrigan and Thos. Eobin- nelius O'Neil, H.C., March 10th son, Glasgow, Oct. 7th 1853 ; 1 1845 ; 2 Broun 394. Irv. 303. 3 Hume i. 98. — Alison i. 283. — 6 Will. Mackintosh and Peter Jas. Hamilton and others, Nov. Murray. H.O., Nov. 2d 1846 ; Ark. 6th 1833 ; Bell's Notes 38. 133. 4 Hume i. 98. It is to be ob- 7 Will. Vair and others, March served that Hume says entering by 13th 1835 ; Bell's Notes 39. an open window will not be house- 8 WUl. Anderson, May 14th breaking— " at least if the window 1840 ; Bell's Notes 199. 40 THEFT. Ehtekins ey probably, and it is thought justly, be held housebreak- '^™"°^^" ing. Whether it would be held housebreaking, to enter oS^famng by an open window, not on an upper floor, if it were to open win- necessary to climb over an outside railing, in order to reach the window, is a question which is somewhat in- volved, in consequence of the same case having been quoted in support of opposite sides of the argument in different works (1). One report (Mr Bell's) says that a charge of this kind was found relevant in general terms, though the aggravation was ultimately passed from. On the other hand, the Jurist report states that the Court laid it down that in such a case housebreaking was not committed And this is confirmed by Mr Steele. The mistake is undoubtedly on Mr Bell's part. The Jurist Eeport shews that the Court were prepared to hold the libel relevant, but only because it averred a fact which amounted to housebreaking, viz., that the window was opened by the thief, but that " should it appear that the " window was open at the time of the theft, and that it "had not been forced open by the panel, there was nothing " in the libel which could support a verdict of guilty of " the housebreaking, as no species of access to the window " could constitute housebreaking, unless the window were " of itself out of ordinary reach, and it was not libelled as " having been so." This is undoubtedly consistent with principle. It is difficult to see how climbing over a rail- ing, not forming part of the building, can be held to alter the character of an entry of the building itself. For it is » certain that it is not housebreaking to climb over the wall of an uncovered yard, and so obtain an entrance, with- out further violence, into a building within the yard (2). Question It may not amount to housebreaking to raise a window where window , i.Tj.Tj.i -,• -, „ ., ordinary mode and SO enter, 11 that be an ordmary mode of entering. of entrance. 1 Will. Campbell or Cameron, Elizabeth Colquhonn or Temple, July 12th 1832; Bell's Notes and 384 May 31st 1830; Bell's Notes 37. Bo. Jur. 591 and Steele 121. The following account is written 2 See also Will. Barclay and on the margin of the indictment in THEFT. 41 and if the .accused have been previously permitted hy Entering by the proprietor to enter in that manner (1). But though ^"*°°'^^' the proprietor go in and out by a window occasionally, still if the window being closed, be opened by the thief, housebreaking is committed (2). Cases have occurred of theft by entering, at apertures Entering by which were not, properly speaking, either doors or win- thardoora 0°/^ dbws. A charge of housebreaking by entering a shed by windows. an open hole above the door, six feet from the ground, was passed from (3). And a similar charge was held not established where the opening was twelve feet from the ground, and had a flap door to it, but whether open or shut could not be proved (4). But where the opening was in the roof and could only be reached by a ladder, the act was held to be housebreaking (5). And where an upper loft which was used as a drying shed had intervals in the sides like a Venetian blind, it was held to be theft by housebreaking to climb up to the loft and abstract articles through the interstices (6). The security of the building having been violated, the Entrance. theft may be completed without the thief being actually within the premises. If he carry off anything by insert- this case, belonging to the late Lord 2 Will. Martin and others, June Wood—" there was a window 30 11th 1832 ; Bell's Notes 38. "feet from the ground which was left 3 Helen Dott, June 8th 1829; " open, an outer stair of consider- Bell's Notes 35. — See also John "able length brings you close to the Carrigan and Thos. Robinson, "window, there is the railing of the Glasgow, Oct. 7th 1863; 1 Irv. 303. "stair near to the window, and the 4 Archibald Duncan and Chas. " window being about the height of Mackenzie, Deo. 30th 1831 ; Bell's "the railing or three feet, and by Notes 35. — But see WUl. Auder- "steppingontherailingyoucanpass son, May 14th 1840; Bell's Notes " over at the window and thus get 199. "entryto the house." The note adds, 5 Case referred to by Lord Cowan "spoke to the Court," i.e., before in John Carrigan and Thomas withdrawing the aggravation. Eobinson supra note 3. 1 Jas. Davidson, Glasgow, 6 Will. Boyd and others, Ayr, Deo. 21st 1841 ; 2 Swin. 630 and April 22dl845i Lord Justice Clerk Bell's Notes 38. Hope's MSS. op HOUSE. 42 THEFTj Entrakcb. JHg his hand (1), or even if he draw articles towards him Actual entry of -y^ith a stick Or hook from where they are lying, the theft necessary. Is Complete (2), and this, although he have not got them into his hand at all (3). Beeakinoout The question has sometimes been raised whether a person who secretes himself within a building, and after stealing, breaks out of the house to escape, is guilty of housebreaking as an aggravation of the theft. The authorities involve the matter in some obscurity. One work quotes a certain judge as having held such an act not to be housebreaking (4), and the same judge is stated in a report of a subsequent case as having said " that he " had known a case where the Court sustained an aggrava- " tion of housebreaking, the party having broken out of a " house which he entered for the purpose of committing a " theft" (5). But the tendency seems rather to be towards holding such an act not to constitute the aggravation (6). And this, it is thought, is consistent with principle. It is when the housebreaking is a means to the accomplish- ment of the theft, that it can be charged as an aggravation. But where a person steals in a house, the theft is com- 1 Hume i. 101, 102, and case of Colquhoun or Temple, May 31st Gadesby there.— Alison i. 288, 289. 1830 ; Bell's Notes 39 and 2 Sc. Jur. — ^Margaret Fitton and others, June 430. The Jurist report bears that 7th 1830; Bell's Notes 39.— Will. the Court were of opinion that there H. Wightman, July 12th 1832 ; were grave difficulties in the way Bell's Notes 39. — Will. Harvey, of its being held as law, that the Nov. 7th 1833 ; Bell's Notes 39. crime of housebreaking is otherwise 2 Hume i. 102. — Will. Vair constituted than by violent entry .^ and Simon Meadoworoft, Dec. 2d Mary A. Webster, July 19th 1831; 1834 ; Bell's Notes 39. Bell's Notes 39.— The MSS. of the 3 Cornelius O'Neil, H.O., March Lord Justice Clerk Hope, contain 10th 1845 ; 2 Broun 394. the following in the case of Will. 4 Lord Mackenzie in the case of M'Oafferty, and Alex. Glendinning, Edward Kennedy, Dumfries, April H.C., Jan. 28th 1850. " Mr Graham 11th 1831; Alison i. 288. "objeotedtoalternativeasnothouse- 5 Christian Duncan, Aberdeen, "breaking — concealment in shop and April 24th 1849 ; J. Shaw 225 . " opening door on inside — breaking 6 Hume i. 101, and cases of Mac- "out not housebreaking. Advocate Kenzie: and Wright there. — Alison " Depute said, alternative notlnsisted i. 288. — Will. Barclay and Elizabeth " in as a charge of housebreaking." THEPT. 43 pleted whenever he has taken the articles from where they Bkeaking out were. The housebreaking is, therefore, entirely suhse- °^ "°"^^ — quent to the theft (1). Shipbreaking is another aggravation of theft which SmpsKEAK- is recognised in law (2). The rules applicable in the case of housebreaking are for the most part equally so to the case of shipbreaking. Besides the high aggravations of housebreaking and Opening lock- shipbreaking, it is held to be an aggravation of theft that it is committed by "opening lock-fast places." This Eooms, closets includes every case which does not come up to the seouredbyS. breaking open of a house or ship, such as breaking into rooms or closets within a house (3), or cabins in a ship (4), or any article, the contents of which are protected by lock and key. It does not necessarily make a charge Charge good of this sort irrelevant, that the facts set forth might have may amount been charged as housebreaking. In one case, whete the *« i">»set)reak- accused was not charged with having been within the pre- mises before the offence was committed, and the breaking consisted in forcing open a door ; the objection that this was housebreaking, and not opening lockfast places, was repelled, the place opened being a cellar (5). Theft by opening lockfast places is committed whether 1 See the case of Joan Eeid and — Tlob. Miller, Perth, April 24th HelenBamet,H.C., Feb. 19th 1844; 1838 ; Bell's Notes 35. 2 Broun 116, where the somewhat 6 John Sutherland, Perth, Sept. analogous point arose whether rob- 24th 1841 ; Lord MoncriefE's MSS- bery could be constituted by a thief His Lordship's note is as follows : using violence to retain an article — " Objection to relevancy of lock- which had been taken clandestinely. " fast places — that what is laid is 2 Nathanael Scott, Perth, April " housebreaking, because it is not 30th 1844 ; 2 Broun 184. — Will. " stated that prisoner was within Inglis and Kenneth Gillvear, Perth, " the premises : Eepelled. The state- April 21st 1848 ; Ark. 461. " ment seems sufBoient that he was 3 Mary Toung or Gilchrist and " servant to John Eussell, and that Cecilia Hislop ; Bell's Notes 34. " he occupied the house at the time. — Houston Cathie, Nov. 10th " But separately, no rule to preclude 1830 ; Bell's Notes 34. " prosecutor from charging minor 4 John Henderson and Will. " aggravation of lochfaat places as Craig, Glasgow, Sept. 16th 1836 ; 1 "to such a place— a cellar." Swin. 300 and Bell's Notes 35. Opening LOCK- FAST P LACES. Forced-false keys — true key applied to the look by the thief. Not theft by opening lock- fast places where box stolen and afterwards broken open. Question whether this aggravation must be spe- cially charged. THEFT. the thief use force (1), or false keys, or picklocks (2), or the true key (3), unless it have been left in the lock (4). And where a drawer fastened by a lock has been forced out of its place and removed, the theft of the contents is complete, though they be left in the drawer (5). And on the same principle, if a locked box be stolen, the subsequent opening of the box and taking out the contents is not a theft by opening lock- fast places, the articles having been in law stolen when the box was carried off (6). It is a doubtful question whether this aggravation requires to be specially stated as such. It appears to have been decided that it is only a description of a par- ticular mode of committing theft, and need not be in- serted in the major proposition at all (7). This seems to have been Baron Hume's view, for he says that a crime of this sort does not receive " any peculiar appel- lation" (8). The decisions, however, appear all to have been in cases where the theft was generally charged to have been committed by means of housebreaking, and they are not reported so as to lead to a satisfactory con- 1 Ahson i. 295. 2 Alison i. 296, 296. 3 Alison i. 296. — Hugh Hosey, H.C., Dec. 3d 1826 ; Syme 28. — Galloway and Sutherland, Nov. 10th 1829 i Bell's Notes 35.— Hous- ton Cathie, Nov. 10th 1830 ; Bell's Notes 34. — Eob. Horn and Jas. Maclaren, Jan. 24th 1831; Bell's Notes 35. 4 Alison i. 296. — Alex. Napier, and others, MarchlSth 1831 ; Bell's Notes 35. — The following note occurs to the case of Sam. Lusk and others, H.O., Jan. 8th 1828, in Lord Wood's MSS.;— "The Court thought the " place was not lockfast, because the *' key was in it." 5 Jas. Smart, 13th July 1837 ; Bell's Notes 19. 6 Jas. Stuart and Alex. Low, Aberdeen, April 15th 1842 ; 1 Broun 260 and Bell's Notes 34.— See also David Walker, Stirling Sept. 3d 1836 ; 1 Swin. 294, (Lord Justice- Clerk Boyle's charge). — This was a case of breach of trust, but the principle is the same. Indeed, as will be afterwards observed (p. 80), it might have been charged as theft. 7 Jas. Anderson, H.C., Nov. 8th 1852; 1 Irv. 93.— Jas. Joss, H.C., May 21st 1821 ; 1 Irv. 93 note, and Hume 1. 90 note, and ii. 170 note a.. — See also Geo. Sutherland and Chas. Turner, H.C., 12th July 1833 ; Bell's Notes 179. — John Dougan and John Hal- ket, H.C., May 19th 1843 ; 1 Broun 555 and Bell's Notes 191. 8 Hume i. 98. THEFT. 45 elusion (1). But whatever may be their weight, it is opening lock- certain that the practice is still unchanged of charging '^^st places. the opening of lockfast places as an aggravation. Child stripping is considered an aggravated mode of Theft peom ■i.j.' J.1 ej_ /a\ CHILDKEN. committmg theft (2). It is also an aggravation of theft that it is accom- Theft by plished by drugging the owner or custodier of the °""°'*™°' property (3). At first sight, it might- appear that such Question an offence was robbery, and not theft (4). But it is ^^'^^^^°'°' thought that theft is the denomination under which it falls. The case of a woman ravished after being drugged is not analogous (5). The will is destroyed by the drug in the case of the woman, expressly to prevent her re- sistance. And the law presumes that resistance would have been made except for the act of the accused in giv- ing the drug. But in the ordinary case of mere taking of property, there is no presumption that the thief con- templates that resistance wUl be offered, or even that the injured person will know of the theft at the time. 1 It would rather appear from old date, and it is difficult to see in thecaseof Elizabeth Hall, H.C., Dec. what the aggravation consists in 26th 1826 ; Syme 47, that the case such a case. of Joss (previous note) was not held 3 David "Wilson and others, Dec. to have fixed that, in the ordinary 22nd 1828 ; Bell's Notes 22. — See case where the higher aggravation also John Stuart and Catherine of housebreaWng was not charged, Wright or Stuart, H.O., July 14th opening lockfast places was not 1829 ; Bell's Notes 22. a substantive and high aggravation 4 See observations. Bell's Notes of a charge of theft. It is to be ob- 22. served that the notices of the case 5 In the Lord Justice - Clerk of Joss do not exactly correspond. Hope's MSS. Notes to Hume, the 2 Hume i. 91, cases of Irvine following occurs in reference to Mr. and M'Beath in note a. — ^Alison i. Bell's comparison between the cases 309, and case of Dunlop there. of rape and of theft — "Eape clearly There are some indictments in the " — but then in that case there are Advocates' Library Collection in " two crimes to choose between, which theft of articles from the " The person is violated against the custody of young children has been " woman's will, and without her charged as an aggravated species of "consent. But there is no one theft, although the things taken " element in case stated of the crime were not articles of the child's " of robbery as distinct from dress. But all these cases are of " theft." 46 THEFT. Theft by drugging. Theft of peopertt in the custody of the thief. Eetention of overpayment. or of found property. Case of finder not knowing owner. Eetention not theft. The probabilities are that he will endeavour to accom- plish the theft clandestinely, and without interfer- ing with the will of the owner at all. He may use means to draw off the attention of the owner, and it is thought that this is precisely what is done in the case of drugging. The drugging is of itself criminal, and is un- doubtedly an aggravation of the theft ; but it is only a means of overcoming the owner's vigilance, not of sub- duing his will, and therefore does not constitute robbery (1). II. There are many cases in which theft is committed where the custody of the property, at the time of the theft, was with the thief, either through its having acci- dentally come into his hands, or from a limited custody of it having been given by the owner or true custodier. If a party in paying money accidentally make an over- payment, and the person receiving it knowingly retain the sum so overpaid, he is guilty of theft. And this holds whether the overpayment be made directly to the delinquent himself, or to any other person on his account (2). The same rule applies to the case of a per- son finding property and appropriating it to his own use, although being well aware to whom it belongs, | (3). But the question is a more difficult one where the finder is ignorant to whom the property belongs. His retention of the article in such a case is no offence at all (4). While he merely keeps it in his own custody. 1 Of course if the drugging were cotabined with other circumstances, such as holding the person down until the drag took effect, or the like, a relevant charge of robbery might be constituted. 2 Eob. Potter, Glasgow, May 2nd 1844 ; 2 Broun 151. This may be held to overrule such a case as that of Field; Hume 1. 62 note 3. 3 John Smith, H.O., March '12th 1838 ; 2 Swin. 28 and Bell's Notes 13.— Jane Pye, Perth, Oct. 3rd 1838; 2 Swin. 187 and Bell's 'Notes 14. — ^Eob. Black and Agnes Scott or Black, March 16th 1841: BeU's Notes 14. — Thos. Scott, H.O., Nov. 11th 1863 ; 1 Irv. 305 Hume i. 62 contra. i Local Police Statutes, in many cases, contain a provision that finders of lost property shall be guilty of an offence, and liable to punishment, if the articles found be not given up to the police within a certain period. THEFT. 47 tlie fact that he knows it not to be his own is of no theft of consequence. That is jnst the position of every finder (1). ^Se'Tu^toSt As long as his conduct implies only retention, the law of the thief. will presume it to be retention for the true owner. On Appropriation the other hand, if the finder proceed at once, or within 'pe^'^^^own' a very short period after the finding, to appropriate the ™e tiieft. article to his own uses and purposes, there seems no , reason in principle why this should not be held to amount to theft (2). Accordingly such a case was held relevant, and resulted in a conviction, where the article found was a watch, and where, on the day after the find- ing, and without any means being used to discover the owner, the finder took it to a pawnbroker's, and asked an advance on it, allegingit to be his own property (3). It Many speoi- is evident that such a case must depend very much on * ' ^^^ ™ special circumstances. The nature of the article found, either as regards its form, its value, or its liability to perish ; the means at the disposal of the finder for dis- covering the owner, the use made of these means ; the length of time allowed to elapse before the appropriation; the particulars of the conduct of the accused from which the appropriation is to be inferred ; and lastly, even the mental qualities and education of the party, are all elements which, singly or in combination, appear to be of importance in. judgiug of the intent of the appro- priation. 1 Angus M'Kinnon, H.O., May 3 Peter Connelly, Glasgow, Sept. 25tli 1863 ; 4 Irv. 398 and 35 Sc. 20tli 1864 (unreported).— In a sub- Jur. 512. — Dalgleisli or BlaoMe and sequent case of Suspension of a Blackie».Gair,H.O., Junel4thl859; Sheriff Court conviction for theft 3 Irv. 425 and 31 Sc. Jur. 528 in similar circumstances, the Court, (Lord Neaves' opinion.) though they quashed the convic- 2 It is true that Baron Hiime (i. tion in consequence of the loose 62)and Sir Archibald Alison (i. 360, manner in which the libel was 361) lay down the contrary, but their framed, expressed their concurrence opinion, having been expressly over- in the principle of the above case, ruled as regards the case of the M'Laughlin i/. Stewart, H.C., owner being known to the finder, June 17th 1865 (unreported), cannot be held authoritative in the matter. 48 THEFT. Thbptof PROPERTT m THE CUSTODY OF THE THIEF. Mere previous legal custody does not ex- clude theft. Servants in charge of master's pro- perty. Party giving money to be changed. Loan or hir- ing. Although it may lower the offence of appropriating. '| - the property of another from theft to hreach of trust or embezzlement, that the owner has given a limited pos- session of it to the offender, still this is not true in every case, and least of all in those cases where the bare custody is given for a special purpose, as in the case of servants put in charge of their master's plate, or horses, or goods, or the like (J). Nor does the rule reach- the case of servants only. If a lodger go from home, leaving a chest in charge of a lodging-house keeper, and he break it open, and abstract the contents, he commits theft (2). Or if a customer give a banknote to a shopkeeper that payment may be made of a pur- chase amounting to sixpence or a shilling, and the shopkeeper keep the note, his crime is theft. Nor is it a theft of nineteen shillings, or nineteen and sixpence ; it is the note he has stolen, as it was given only for the special purpose of being changed, that the customer might pay his debt (3). Further, loan or hir- ing for a short and specified time and purpose, does not necessarily imply that the borrower cannot commit theft by appropriating the article lent. If a person to whom a horse is hired or lent for a ride (4), or who receives permission to mount a horse to try his paces (5), appro- priate the animal and decamp, the crime is theft. In the same way if an article be lent for a specific use, and to be returned thereafter, the borrower commits 1 Hume i. 64, 65, and case of Heartside there, and cases of Gray : and Paterson and Marr in note 1. — i. 67, and cases of Shand: and Fairbaim there. — Alison i. 250, 251. —More ii. 381. 2 Craig v. Ponton, K-O., Nov. 16th 1829 ; 2 So. Jur. 31. 3 John Mooney, H.C., Nov. 17th 1851; J. Shaw 496 and 24 So. Jur. 12. 4 Hume i. 69, and case of Mar- shall there Alison i. 259, 260, and cases of Tyrie : and Smith there. — "Will. Barr, Glasgow, May 4th 1832 ; 5 Deas 'aiid Anderson 260. — John Smith, alias Lloyd, alias Shepperd, H.O., Jan. llt'h 1830 ; 2 Sc. Jur. 144. — Kob. Hardista, alias Chas. Brookes, July 22nd 1842; Bell's Notes 16. — Hume i. 68, 59, conira. 5 Hume i. 63, and case of Een- wiok in note a, — ^i. 68, 69. — Alison i. 263. THEFT. 4,9 theft if he appropriates it (1). Nor does it matter in Theft of such cases whether the hiring or borrowing was a mere the^custoi™ pretence from the first, or whether the intention to appro- of the thief priate was afterwards formed (2). The rule has even been pauper selling extended to the case of a pauper selling clothes that had poorhouse been served out to be worn while the wearer was in the poorhouse, she having been made to understand ex- pressly that they were not her own, but were only given to be worn while she continued an inmate (3). On this servant seii- principle, it would now probably be held theft if a i>ig livery, servant were to sell his livery, which had been given him on' the footing that it was to be returned when he left his master's service (4). Again, if a porter run off Thefts by with luggage given him to carry (5), or shipmasters (6) ^^''\^''2 or carriers (7) appropriate goods put into their custody masters. for conveyance, the crime committed is theft. And servant sent the same holds in the case of a servant taking a coat ^'*^ artiuie. which he has been ordered to convey to a tailor's for re- pair (8) ; or appropriating the contents of a parcel given him to deliver (9) ; or a groom riding off with, and 1 Jane M'Mabon or M'Graw, Hope's MSS. contains the following Glasgow, April 22nd 1863 ; 4 Irv. note — " Lorimer — question is 381 and 35 So. Jur. 459. — In the "whether offence is theft. Oonrt case of Anthony Sime, H.C., Feb. " held it was theft." 25th 1850 ; Lord Justice Clerk 3 Elizabeth Anderson, Aberdeen, Hope's MSS., it was objected to a April 21st 1858 ; 3 Irv. 65. charge of theft of a hammer, that 4 Hume i. 60, contra. — ^Alison i. it had been lent to the accused, 355, contra. — More ii. 388, 389. and that the species Jhcti did not 6 Hume 1. 63. — ^Alison i. 252. amount to theft The objection was — i. 263. — Alex. Maokay, H.C., ' repelled. Dec. 27th 1826 ; Syme 53. 2 John Smith, H.C., March 12th 6 Jas. Dalziel, Dumfries, April 1838 ; 2 Swin. 28. (Lord Meadow- 8th and Sept. 29th 1842 ; 1 Broun bank's and Lord Monorieff's opin- 217 and 425. — Philip Eneen, H.O., ions). — In the case of Janet Lawrie, June 28th 1858 ; 3 Irv. 161. H.O., Feb. 25th 1849, the facts were 7 Hume i. 58, 59, contra Alison that the accused went to a shop, i. 253, 254, case of Glen there. — i. and on being shown an article of ■ 262. — Jas. Mitchell, H.O., May 25th , dress took it away. Saying she 1829; Shaw 220 and Bell's Notes 10. would show it to her sister, for 8 Janet Drummond, July 12th whom she said she was buying it. 1832 ; Bell's Notes 14. She did not return, but pawned the 9 Daniel or Donald Macdonald, article. The Lord Justice Clerk July 16th 1829 ; Bell's Notes 15. D 50 THEFT. Theft of pboperty in the custody of the thief. Money en- trusted for im- mediate de- livery. Servant sent for cash or change. Postman. Shopman. selling a horse which he has been directed to take out for exercise, or to exhibit in a market (1). On the same principle a servant or clerk commits theft, if he appropriates a sum of money given him to be" immediately delivered in forma specifica to a particular person, or to be paid into the bank (2). Again, if a servant be sent with a banknote to get change (3), or a bill be given him for the express purpose of cashing it, and bringing back the proceeds to his master, or paying them to a particular party in forma specifica, he commits theft if he carry off the money (4). So where the case against the accused was, that being sent with a deposit receipt to the bank to get payment of a portion of the sum contained in it, and a new receipt for the balance, he stole the sum handed to him at the bank, and also the new receipt, it was observed by the Court ex propria motu that the charge of theft was undoubtedly relevant (5). In the same way a postman to whom letters are given to be delivered at the addresses written on them, commits theft if he appropriates any of them (6). Nor is the rule that a servant may commit theft 'bj appropriating property put into his hands by his master confined to the case where he acts as a 1 Eob. Nicolson, H.C., June 20tli 1842 ; 1 Broun 370 and BeU's Notes 14. 2 Hume i. 65, 66.— Alison i. 254, , 255. — Daniel A. Murray and Eob. Tait, Nov. 30th 1829 ; Shaw 225 and Bell's Notes 16 and 2 So. Jur. 64. — Duncan Mackintosh, H.O., Feb. 2d 1835 ; 13 Shaw's Session Oases 1168 and Bell's Notes 15 and 7 Sc. Jur. 195. — David Field, H.C., Jan. 22nd 1838 ; 2 Swin. 24 and Bell's Notes 16.— Thos. Pater- son, H.C., July 22nd 1840 ; 2 Swin. 521 and Bell's Notes 16.— In Lord Wood's MSS. the following note occurs to the case of Jas. Simp- son, Glasgow, Sept. ^27th 1847, who pled guilty to theft — " got large sums from employer to pay accounts, and appropriated them." (See Indictment, Adv. Lib. Coll.) 3 Bob. Michie, H.C., Jan. 28Ui 1839 ; 2 Swin. 319 and Bell's Notes 13. 4 David Stewart, Perth, April 14th 1830; 5 Deas and Anderson 149. Samuel Parquharson, H.O., Nov. 11th 1830 ; Bell's Notes 12. 5 David Stewart, Perth, April 14th 1830 ; 6 Deas and Anderson 149. 6 Hume i. 67, and case of Mac- kay there, and cases of Lawrie, and Oliver in note 3. THEFT. 5 1 messenger merely. It has beeu held also to apply in tftose Theft of cases in which a servant acts as a salesman on the tSe^custody premises, and under the eye of the employer, — not as an Qg the thief. agent bound to account, but as the hand of the master. Thus, a shopman who appropriates the goods in the shop, or money paid to him by his master's customers, commits theft (1). And the principle has even been Bank teller, extended to the teller of a bank, his duty being merely to receive and pay money for the purposes of the bank, and within their premises, the money never being in his possession at all, but in the possession of the bank (2). It would even appear to be the tendency of our practice Servant sent to to hold a servant guilty of theft, if he be sent with a artioief ^ ^^ particular article to market, for the purpose of selling it, and bringing the price to his master, and he keep the money (3) ; or if he be sent with an article to pawn, and he appropriate the amount advanced by the pawnbroker (4). At the same time, there has been no positive judgment to this effect, and such a decision would carry the doctrine of specific purpose and limited custody very far. For there is in such cases of sale or pledging, at least a limited control and administration on the part of the servant. Still, the servant's duty in such a case, being not like that of an agent, to retain the money, and account for it at some convenient time to the owner, but immedi- ately to return to his employer, and hand it over, it may be reasonable to hold his act to be theftuous. The principle of specific purpose and limited custody Article given is also extended to the case of an article being given make up or repair. 1 Hume i. 65, case of Gray in 1846; Ark. 196 and p. 201 note, note 1. — Alison i. 261, and cases of — Hume i. 61, contra. Chalmers : and Murray and Tait 3 Watt v. Home, H.C., Deo. 8tli there.— Tho. E. Pearse, Nov. 19th 1851 ; J. Shaw 619 (Lord Wood's 1832; Bell's Notes 10. opinion). 2 Kob. Smith and Jas. Wishart, 4 Daniel Fraeer, H.O., June 3d H.O., May 18th 1842 ; 1 Broun 1850 ; J. Shaw 366 (Lord Justice 342 and Bell's Notes 11.— See also Clerk Hope's charge). Eonald Gordon, H.O., Deo. 21st 52 THEFT. Theft of peopeety in the custody of the thief. Qnestion whether theft after article made up. Party rescuing goods from fire or wreck and appropria- ting. to a tradesman, that he may perform some opera- tion upon it, and return it (1). The purpose being specific, if he appropriate the article, the crime is theft. It is theft if a watchmaker take a watch given him to repair (2) ; or a tailor appropriate cloth given him to make into a coat (3) ; or a weaver carry off yarn which has been given him to be woven (4). The question has not been decided whether it would be theft if the tailor had made the coat, or the weaver had made the web, before the appropriation, but it would probably be held that the two cases are similar in principle (5). If a journeyman tailor receive cloth from his master to make a coat, and after making it, carry it off, he is undoubtedly guilty of stealing the coat ; and in the case supposed of the owner of a piece of cloth giving it to a tailor to be made up, the tailor is just the servant of his employer, as the journeyman tailor is the servant of the master-tailor (6). One other case has been supposed of a limited custody under the sanction of the owner — that of a person assist- ing in rescuing goods from a wreck or a conflagration. In such a case it would now undoubtedly be held theft if the person assisting were to appropriate any of the recovered property (7). This may suffice in illustration of the cases in which 1 Alison i., 359, 360, contra. 2 Geo. Brown, H.C., July 3d 1839 ; 2 Swin. 394 and Bell's Notes 9. By this case the previous case of Robert Sutherland, H.O,, March 21st 1836; I Swin. 162 and BeU's Notes 9, is overruled. 3 Elizabeth Anderson, Aberdeen, April 21st 1858 ; 3 Irv. 65 (Lord Ardmillan's charge). 4 Watt V. Home, H.O., Dec. 8th 1851 i J. Shaw 619 and 24 So. Jur. 65 and 1 Stuart 125. 5 See Watt v. Home, supra (Lord Justice Clerk Hope's and Lord Wood's opinions). 6 There are only two cases in which this point seems to have been directly raised by the libel, viz. :— Eiohard Gibbons, Glasgow, Sept. 1856 ; Indictment, Adv. Lib. Coll., where a party got materials to make up shirts, and after making the shirts appropriated them: and Will. Hay, H.C., Feb. 4th 1861 ; In- dictment, Adv. Lib. Coll., where a miller, who had got grain to grind, appropriated the flour which he made. In the former case the ac- cused was f ugitated, and in the latter a plea of breach of. trust was ac- cepted, so that neither case forms a direct authority. 7 Hume i. 62, 63, contra. THEFT. 53 a person may be held to steal goods, of whicli he has a Theft of limited custody, for. a specific purpose. On the other the'custody hand, the crime wiU not be theft, but breach of trust of the thief. and embezzlement, if the facts do not reduce the hold- betweenXeft ing of the property by the person employed to a mere and breach of custody, with a duty to deliver in forma specifica, or after the performance of a specified operation upon it, but imply a mere liability to account.* It cannot be denied that in very many cases the distinction is so fine as to be almost inappreciable. In so far as the decisions make the matter capable of definition, the elements which bring the crime up to theft seem to be these : — 1. A person employed to carry a specific article (even Summary notes or coin) to a certain place or individual, or to get ° """ a specific article from a person named, and bring it then and there to his master, commits theft if he appropriates it, (The case of a clerk sent with a cheque to draw money and bring it back, embraces both these ele- ments). 2. A person employed to assist the owner in his busi- ness, not as an agent taking a general charge, or super- intending over a local branch of the business, but only as an assistant to serve customers under the master's eye, and on the master's premises, commits theft if he appropriates his employer's goods, or money he receives from customers on his behalf 3. A person who is sent with a specific article, that he may dispose of it by sale or pledge, and then and •there bring the money received to his master, commits theft if he appropriates it. (This is only stated on the authority of obiter dicta.) 4. A person who receives an article, that he may per- form a certain operation upon it and return it, commits theft if he appropriates it. It will readily be conceived that the question whether • Tide Breach of Trust and Embezzlement, p. 74. 54 Theft of peopkety is the custody of the thief. Difficulties of distiaction between tbeft and breach of trust. AeT and PART OF THEFT, Concurrence before or at commission. Accomplice watching. Art and part may be implied though accomplice not cognisant of particular offence. THEFT. a particular case comes up to theft or not may, in this state of the law, be matter of extreme nicety. The point at which a mere shopman ceases to be the hand of his master, and becomes the agent, it may in many cases be almost impossible to fix. Such very slight circumstances may turn the scale the one way or the other, that it is often necessary to charge Theft and Breach of Trust alternatively, leaving it to the judge to direct the jury which offence is constituted by the facts proved. It is really much to be regretted that there should be two crimes, kept distinct in form, when in reality the line which divides them is so unsubstantial, particularly as the punishment of both is discretionary, and it therefore matters little under which nomen juris the accused is brought to the bar. It is of importance, in concluding the subject of Theft, to notice briefly how the distinction is drawn in law between that connivance or participation which con- stitutes guilt art and part of theft, and that which amounts only to the crime of Eeset of Theft.* To constitute theft by participation there must have been guilty concurrence before or at the time of the theft. If there is previous concert to commit theft, it is not neces- sary that both parties should be actually together at the time of the theft. The most common case of this sort is that in which one commits the theft, while the other watches at a little distance to prevent detection. Here, though the person who watches may not be able to see the commission of the theft, he is guilty art and part. But the principle of previous concert is carried much farther than this. It is not necessary to constitute guilt as art and part by previous concert, that the participator should have knowledge of the particular act of theft which is committed. If a gang of thieves go to a town, and lodge in the same house, conducting themselves so as to shew that they are engaged in a joint adventure, * Vide 70. THEFT 55 by sharing their hooty with one another, and by meeting Aet and part together during the day ; then though the separate acts 2!lEE!Iij — of theft committed by each may have been unknown to the others till after the perpetration, still they are all guilty, art and part, of all the thefts committed (1). In short, if there be a general combination between in- dividuals for theftuous purposes, the acts of each are the acts of all. Nor is it necessary that aU the gang should actually go out upon the thieving expedition. If one ^ooompiioe of them stay in the house to act as the receiver of the guilty though plunder as it is brought in, and to stow it away, he is homa"'"^ ^ art and part with the rest. The whole proceedings are a joint adventure, and he receives the stolen property, not by an arrangement unconnected with the theft, but in accordance with the previous plot (2). Indeed, in such a case, the one who remains at home may be the greatest criminal of the whole gang. If a person of mature years Person employ young children to go out and commit thefts, he y™ung'''chU(ireii remaining at home and receiving the booty, there cannot to steal. be a doubt that his guilt is higher than theirs (3). But further, it is not necessary to constitute guilt as concert at time art and part of theft, that there should have been any "J^^^elt previous concert, if guilty concurrence at the time be proved. " It is sufficient if the party was conscious of " what was going on at the time — if he knew that some " article, no matter what, was about to be stolen. If there " was privity, even by so slight a communication with the " thief as a nod or a wink, that would make the party so " privy, guilty of theft art and part" (4). 1 Hume i. 116, 116.— Alison i. 289, Scott and others, May 30th 1836; 290, 291 ^i. 830, 331. Bell's Notes 46. 2 Hume i. 116, case of Anderson 4 John Mackenzie and Eliza and Marshall there, and case of Johnston, H.C., Nov. 2d 1846 ; Ark. Wright in note 2. 135 (Lord Justice Clerk Hope's 3 See Hume i. 116, case of Mac- charge). — See also Jas. Dooherty donald and Wilson in note 2.— See and Will. Scott, Nov. 9th 1838 ; Bell's Notes 46. 56 Axe ASD PART OF THEFT. Question whether con- currence immediately after theft sufficient. Genebal ag- gravations OF THEFT. Previous con- viction. Question whether prev. con. of stouthrief competent. Habit and repute. THEFT. Baron Hume and Sir Archibald Alison botli incline to hold that a person may be guilty as art and part of theft though there was no previous concert, and no privity at the time, and put the case that a jperson steals an article, and instantly repairs to the house of a known thief, who secretes it, and receives a share (1). But it is thought that this view is scarcely sound in principle, and that although such facts might go far to shew that there had been a previous concert, still, unless in point of fact there had been such concert, the crime would not he theft, but reset.* In speaking of the general aggravations of theft pre- vious conviction must be first noticed. The general rule that previous conviction of a simple offence may be charged as aggravating a case of a more special kind, applies in the case of theft even to theft of that peculiar kind called Plagium (2). And on the same principle the converse would hold, that a previous conviction of "theft, particularly Plagium," might be charged as aggravating a case of ordinary theft. Whether a previous conviction of stouthrief can be charged as an aggravation of theft is a question which cannot be considered as absolutely de- cided. It was sustained in one case (3), but doubt has been thrown upon the matter by a later decision (4). For reasons to be afterwards given in speaking of stouthrief,-}- it is thought that a previous conviction of stouthrief may be relevantly charged in a case of theft. A repute that a party is a common thief, that is, gets his livelihood or supplements it by thieving, is an aggra- vation of theft (5). It is not necessary that his whole 1 Hume i. 115, 116. — Alison i. 331. 2 Marion Bosmond or Skeoch, Glasgow, Sept. 26th 1865; 2 Irv. 234. 3 John Smith, Ayr, Oct. 2d 1860 ; 4 Irv. 50 note. 4 John Bryson and others, Glas- gow, April 22d 1863; 4 Irv. 384 and 35 So. Jur. 460. 5 Hume i. 92— Alison i. 296, 297. » Vide 70. t Vide 66, 67. THEFT. 57 subsistence should be from thieving (1). If the accused General ag- . . , , . , . 1 . ,1 GKAVATIONS IS m employment or carrying on a business during the of theft. time the habit and repute is sworn to, it is a question for the Jury whether, in the circumstances, the repute is thereby taken off (2). Further it is not necessary that Prev.con, not the accused should have been convicted of theft (3), or "^°^ ^^^' even that he should have been actively engaged in Active share in thieving. A bedridden person may be habit and repute ^^gggg"^ a thief, if he be the associate of thieves, and live by the proceeds of theft (4). And if the repute be duly proved, it has been laid down that the Jury have nothing to do with the grounds of it (5). But the character must be Doubtful repu- well established. Mere doubtful reputation is not suffi- enough"" cient (6). The charge made is that the accused is habit J^"st repute flXTPUQ. to TplTlQd and repute a thief, and therefore the habit and repute of trial. must extend down to the time of the trial at which it is to be^proved (7). Where a thief was not tried till many years after the offence, it was held that evidence of his having been habit and repute a thief at the time of the offence, and that he had been fugitated, was not sufficient to convict him of the aggravation, there being no proof as to his character during the intervening years, and up to the time of his being again lodged in prison. This result seems, however, not to • have proceeded from a general principle, but only from the form of libelling. It is thought that if the prosecutor, in such a case, 1 Jas. Howie, 27th Dec. 1831 ; a considerable portion of period Bell's Notes 28. during -which the repute was spoken 2 Jas. Bell and others, H.C., Jan. to, but the objection that he could 19th 1846 ; Ark 1. not be habit and repute a thief 3 Hume 1. 93, 94, and cases of during thaf time was repelled. Turner : Glenduthill : Anderson : 5 Margaret M'Keuzie, H.C., Nov. Walker: Gray: Elliot: Lawson: 26th 1838 ; 2 Swin. 210 and Bell's Henderson : Wilson and Mac- Notes 31. donald : John Gordon : and Thos. 6 Hume i. 93, and case of Mac- Gordon there. — Alison i. 298, 299. — donald or Badenoch there. More ii. 383. 7 Will. Buchanan, Glasgow, Oct 4 In the case of Patrick M'Ghee 18th 1832 ; Bell's Notes 30.— Arch, and others, Glasgow, Oct 2d 1861 M'Nicol, Glasgow, Deo. 1839 ; Bell's (unreported) one of the accused was Notes 30. proved to have been bedridden for 58 General ag- gravations OF THEFT. Question how long repute must continue. Must be at least full year. Period must be connected. Time accused in prison not to be reckoned. But interven- ing imprison- ment does not disconnect pre- vious and sub- sequent time. THEFT. libelled the charge thus—" and you, the said John " Brown, were, at the time of the act of theft above set " forth, habit and repute a thief," that he could not be pre- cluded from claiming a conviction of the aggravation (1). It is a question not absolutely decided how long the repute must continue to^ establish the aggravation. For- merly, periods of ten, nine, and even six months, were held sufficient (2). Latterly, any period under a year was held insufficient (3). And very recently it has been decided that a bare year is not sufficient to establish the character (4). In one case evidence of the repute " above a free year," was held sufficient (5). Holding a full year to be the minimum period, the next thing to be noticed is that it must be a connected year, not a number of fragmentary periods, which together, amount to a year or more (6). Where habit and repute was sworn to for a full year, but the accused had been in jail during part of the year, the aggravation was withdrawn (7). But, though the period during which a party has been in prison is not allowed to be counted as part of the term necessary to establish habit and repute, it does not pre- vent the periods before and after the imprisonment from 1 Eob. Heron, Perth, April 27th 1838 i 2 Swin. 104 (Lord Mon- crieff's opinion) and Bell's Notes 30. 2 Alison i. 300 — Alex. Smith July 11th 1831 ; Bell's Notes 29. — Jas. Hamilton, 6th Nov. 1833 ; Bell's Notes 29— Peter Wallace, Nov. 7th 1833; Bell's Notes. 29— Thos. Whyte and Alex. Maclean, Dec. 2d 1834 ; Bell's Notes 29. 3 Jean Dickson or Benton, H.C., July 11th 1836 ; 1 Swin. 245 and Ben's Notes 29. — Eob. Eobertson, June 6th 1837; Bell's Notes 30. —Will. Brash and Eob. White, H.O., March 17th 1840 ; 2 Swin. 600 and Bell's Notes 30. 4 Jane M'Pherson or Dempster and others, H.C., Jan. 13th 1862 ; 4 Irv. 143 and 34 So. Jur. 140. It does not appear from the report of this case whether the year which was said to have elapsed since the previous imprisonment bad been complete at the time of the alleged offence, or whether there was only a year between the previous im- prisonment and the time of the trial for the new offence. 5 Elizabeth Eobertson or Stew- art, Perth, April 30th 1844 ; Lord Cockburn's MSS. 6 Will. Brash and Eob. White, H.C., March 17th 1840; 2 Swin. 500. 7 Joseph M'Kean and others ; Bell's Notes 30. THEFT. 59 GKAVATIONS OF THEITT. being added together. Thus, if a person be habit and Oenekal ag- repute a thief for four months, and then spend some time in prison, but on his release again have the character of habit and repute for nine months, the four months and the nine months are not held to be disjoined by the intervening imprisonment, as they would be by an intervening course of honesty, but are sufficient to- gether to constitute the aggravation (1). The principle that the time during which the accused Time between has been imprisoned is not to be reckoned as forming and'^^^^^o^to part of the period necessary to fix the character of habit be reckoned. and repute, applies of course to the period between the apprehension and the trial. Any other rule would enable the prosecutor to fix the repute upon a person who had borne the character for three or four months, by the simple expedient of keeping him in prison for a long time before bringing him to trial. It is tree that one case is so reported as to seem to lead to a different result, both as regards a period of imprisonment under sentence, and the period of imprisonment under commit- ment for trial (2). The report bears that the Advocate- depute argued that the period between apprehension and trial had in a previous case been included ; that impri- sonment under conviction was a much stronger case, and that the presiding judge thought the aggravation sufficiently proved (3). But the report is rather con- fused, narrating, as it appears to do, that the accused's counsel maintained that fifteen months being deducted from two years, left thirteen months ; and further, that 1 "Will. Walkingehaw, H.C., Jedburgh, Sept. Uth 1838 ; 2 Swin. May 17th 1844; 2 Broun 190.— 192 and Bell's Notes 30. Henry Gillian, Nov. 5th 1839 ; Bell's 3 The case alluded to by the Notes 31. In this case the accused, Advocate-depute was that of Jas. after acquiring the repute, was im- Wilson and John Maddou, April prisoned, and within a week of 23d 1838; 2 Swin. 107 and Bell's his liberation committed the new Notes 28, the report of which does offence. not by any means bear out the 2 Jas. Pringle and Helen Scott, theory contended for. 60 THEFT. Gevehal AG- thirteen months was not sufficient to establish habit and THE^"""^ °^ repute. And besides, as is pointed out by Mr. Bell in his Notes (1), there is nothing iu the report to lead to the conclusion that the judge, in holding the aggrava- tion established, included the period of imprisonment, for there was one witness who swore to habit and repute for two or three years, and the Judge may have held the evidence of this witness as to the period, notwithstand- standing the deduction of fifteen months, to be suffi- cient, along with proof of previous convictions, to estab- lish the character, without taking into account at all the evidence of the other witness, who spoke only to two years. Including the period of fifteen months of impri- sonment (2). Theft may be aggravated by the thief being a person whose duty it is to protect property. For example, a theft by a police-officer while on duty is justly held to be an aggravated offence (3). It was formerly not un- common to charge such facts as that the thief was the apprentice (4) or servant (5) of the owner, or was a car- rier to whom the goods had been given for conveyance (6); as specific aggravations of theft ; but such aggrava- tions have fallen into desuetude. Theft is held to be aggravated in certain cases by the nature of the thing stolen. Plagium, or the theft of a human being, is a highly aggravated species of theft. Theft by police officer. Theft by ap- prentice or carrier. Plagium. 1 BeU's Notes 30. 2 The following occurs in the Lord Justice-Clerk Hope's MS. Notes to Hume, referring to this case, and to the supposition that Lord Moncrieff held it competent to include the period of imprisonment in estimating the habit and repute : — " Neither 1 nor Lord Mackenzie, " nor Medwyn, nor Wood, enter into ■' this notion, neither do I understand "that Lord Moncrieff now holds it." 3 Bob. Ferrie and Will. Banks, March 29th 1831; Bell's Notes 31. — Arch. M'Callum, Inverary, Sept 1846 (Indictment); Adv. Lib. CoU. 4 Hume i, 68, case of Mathieson there. — ^Walter Tumbull, Jedburgh, April 1822 (Indictment); AdT. Lib. CoU. 5 Will. Vance and others, Glas- gow, Jan. 1835 (Indictment) ; Adv Lib. Coll. 6 Will. Findlater, Glasgow, April 1835 (Indictment); Adv. Lib. Coll. and Lord Justice General Boyle's MSS. THEFT. 6 1 And thefts of horses, or cattle, or sheep, are also held to Gbneeal ag- be aggravated crimes (1). Indictments are to be found theJ^^'"'''^ "^ in which ass-stealing, goat-stealing, and swine-stealing Animal steai- are charged as aggravated offences. ™s- By statute (2), stealing or assisting, or maliciously hir- rpj^^fj f^^^ ing or procuring another to steal linen, fustian, or cotton bieaoh-fieids. goods " laid, placed, or exposed " for printing or bleaching purposes, in any building, ground, or place made use of by a manufacturer for such purposes, is punishable with death, or if the Court shall see fit, with penal servi- tude (3) for fourteen years. No absolute distinction is now taken between an ordi- Purtum grave, nary theft and one of large ainount, which formerly was held capital, as being a furtum grave (4). Nor is it customary to charge as a specific aggravation that the Eepeated theft accused had committed repeated acts of theft. Such an aggravation was formerly common, " especially when re- " peated acts thereof are committed by the same per- " son" (5). Theft is now invariably punished by imprisonment Pdkishment or penal servitude, according to circumstances. The old statutes, by which certain thefts are made punishable by death, are now ignored, and in the case of thefts from bleaching grounds, which is the only instance of a theft made capital by statute in modern times, the pains of law are always restricted by the prosecutor. 1 Hume i. 88 to 92 passim. — All- 4 Hume i. 90, 91. — Alison i. 307, son i. 309 to 312 passim. 308. 2 Act 18 Geo. ii. o. 27. 5 Hnme i. 95, 96.— Alison i. 306 3 Penal Servitude Acta, 20 and 307. — Ann Sutherland, July 13th 21 Viot., 0. 3 and 27 and 28 Vict, 1832 ; Bell's Notes 32 — Alex. Gre- 0. 47. gor, Inverness, April 1832 ; Bell's Notes 32. OF THEFT. 62 EOBBEEY STOUTHRIEF. Distinction between rob- BERY AND STOUTHRIEF. Qualities of OFFENCE. Property need not be taken from person. The distinction between these crimes has never been very clearly defined (1). One of our ablest judges stated in the year 1848, that "there was not perhaps any " difference between the offences of robbery and stouth- " rief " (2). They both imply the felonious taking of property from another's custody by violence. In modern practice the term stouthrief is seldom employed, and is confined to cases where the inhabitants of a house are attacked by thieves, and resistance quelled by violence actually inflicted, or reasonably dreaded by the inmates; and to cases of attacks by mobs or combinations of per- sons, in which property is masterfully carried off, and the lieges put in alarm (.3). Eobbery is the term gene- rally used to describe the simple case of a person having property taken from him forcibly, or extorted from him by alarming menaces (4). It is not necessary that the property should be taken from the person. Stouthrief and robbery may both be committed by taking from the possession of another, as by carrying off sheep from a flock, or goods from a ship 1 Hume i. 104. — Alison i. 227. 2 Lord Mackenzie, in the case of Geo. Smith and others, Glasgow, May 3d 1848 ; Ark. 473. 3 Hume i. 109, llO.^John Craig and Jas. Brown, Glasgow, Sept. 22d 1829 ; BeU's Notes 45.— David Little, Glasgow, Jan. 1831; Bell's Notes 45.— Thos. Kelly, Stirling, April 18th 1837 ; Bell's Notes 44. — John Adamson and others, Nov. 26th 1838 ; BeU's Notes 45.— Mar- tin Handley and others, Glasgow, Deo. 30th 1842; 1 Broun 508. — Thos. M'Gavin and others, Stir- Ung, April 25th 1844; 2 Brouu 145. 4 Hume 1. 106, 107. KOBBERY AND STOUTHRIEP. 53 or house by force (1). Nor need the violence he Qcauties of •' ^ ' OFFENCE actually applied to the person. Violent conduct, pro- ducing reasonable fear of immediate coercion or bodily i^g^reasonabie injury, are sufficient to constitute the offence, where the fear enough. owner submits to having his property taken from him by the delinquent, or delivers it up to save himself (2). And in estimating the reasonableness of the fear, the whole conduct of the assailant, and the age and sex of the person assailed are considered (3). It is not robbery if, by a single and sudden snatch or Sudden snatch pull, anything be carried off (4), unless injury be done unless injury to the person, as in the case of an earring torn from the plny™.*'"''"^" ear. But this rule will not apply if the pull be accom- panied by such acts as a blow, or pinning the arms to the sides (5), or throwing the owner to the ground (6), or if one or more persons hold him while another takes his property (7). And as already observed, anything Any straggle approaching to a struggle between the owner and the sufficient. delinquent is sufficient to take the crime out of the lower category of theft. Nor does it alter the offence Robbery, that the thing taken fell from the owner during the p'^°t'y fafnn scufQe, or was thrown away by him, and was only ^™^! ^'°^^ ^^ picked up by the assailant (8). 1 Hume i. 106. — Alison i. 230, In this decision the statement of 231, and cases of M'MUlan and Gor- the case of Alex. Smith, Glas- don : and Little and others there. gow, spring, 1828 ; Alison i. 2 Hume i. 105. — ^Alison i. 228. — 237, is declared to be inaccurate. More ii. 384. In Lord Justice-Olerk Hope's MSS. 3 Hume i. 105 to 107. — Alison i. the following occurs in reference to 228,229,230. the case of Smith:— "No doubt 4 Hume 1. 77. — Alison i. 236, " that such facts make a robbery." 237, and case of Highlands there. The case of Neil M'Gillivray and B Alex. Smith, March 11th 1833; Thos. M'Millan, Glasgow, April BeU's Notes 43. 1841; Bell's Notes 22, where the 6 Jas. FegenaKasBrannan, H.C., injured party was caught round Jan.29thl838; 2Swin.25andBeirs the body, and his watch carried Notes 43. — Will. Adams or Eeid, off, the chain being broken, and Nov. 30th 1829 ; Bell's Notes 43. where the charge of robbery was 7 Helen Melville and others, departed from, is marked by the June 25th 1832; Bell's Notes 43. Lord Justice-Clerk Hope in his —John Givan and Alex. Givan, MSS.— " doubtful." H.O., Feb. 9th 1846 ; Ark. 9. 8 Hume i. 105.— Alison i. 234. 64 ROBBERY AOT) STOUTHRTEF. Qdalities of OFFENCE. Weapons or gestures of attackuuneces- sary. Thief persist- ing on owner's resistance. Eesolntion to take formed after attack. Menace must be of present injury. Violent exac- tion of promise not robbery. Further, it is not necessary that there should be any . use of dangerous weapons, or even gestures of attack (1). Indeed it matters not though violence was not at first intended, but has only been the result of the owner's resistance to the abstraction of his property. And such violence need not involve any denaonstration of in- jury to the owner's person. If a thief endeavour to steal a watch, and the owner, before it has been drawn out of his pocket, seize the chain, it ceases to be mere theft, and becomes robbery, if the delinquent continue to pull at the chain, and drag the watch out of the owner's hand (2). The converse is also true. If, during an assault or violent scuifle, not commenced with any theftuous intent,' the assailant form the resolution of carrying off anything belonging to the injured party, the crime committed is stouthrief or robbery (3). But this rule does not include the case of a walking-stick, or the . like, being carried off in the heat of a scuffle, and without any intention of keeping it (i). To constitute the crimes of robbery or stouthrief, the violence, if consisting of menace only, must be by menace of present injury, not merely by threats of some future wrong, unless the threat be made in such a way as to cause reasonable fear, that if the menace of future injury then made be ineffectual, immediate violence will be resorted to (5). Further, the violence must be simul- taneous with the taking of the property. It is only an aggravated assault violently to exact a spoken or writ- ten promise to pay money at a future time (6). ISTor is it robbery if the violence be subsequent to the taking. 1 Hume 106, 107. 2 Hume i. 105.— Helen Melville and others, June 25th 1832 ; Bell s Notes 43.— John Wishart, H.C., June 9th 1845; 2 Broun 445. 3 Alison i. 238, 239.^Jas. PuTTes and Geo. M'Intosh, H.O., Nov. 9th 1846; Ark. 178 (Lord Justice-Clerk Hope's charge). 4 Hume i. 108, and case of Wright there. 6 Hume i. 107, 108.— Alison L 231, 232. 6 Hume i. 108.— Alison i. 232. EOBBERY AND STOUTHEIEF. 65 If a thief has got possession of an article stealthily, and ^ "j!^""^^ "" a scuffle ensue with the owner, in consequence of his endeavours to recover his property, the simply theftuous ^°* robbenr if '■'■•'' J- ■' violence subse- character of the taking is not thereby altered (1). And queut to tak- en the same principle, if a person has been treated vio-.'"f lently, but the taking of his property has been subse- tween violence quent to and disconnected from the violence, the offence robbOTv."^' "°* is not robbery, but theft (2). But of course it is not But where vio- meant by this, that if the assailant has reduced his vie- ■'I'J''! ^^ ^^^' *' ' ^ a bled owner, tim to a state of incapacity for further resistance, — as by subsequent striking him so severely that he becomes insensible, or bery!^ by binding him, — that he is to be held guilty of theft only, if he thereafter rifle his pockets, or carry off his horse, or commit any other depredation. This indeed is robbery or stouthrief of the very worst kind (3). It is true of stouthrief and robbery as of theft, that Value ot no the value of what is taken does not affect the crime (4). constitutS™ of* The rules relating to the distinction between such partici- off™oe. pation as constitutes art and part of robbery, and such as only constitutes reset, are the same as those applicable to theft * And notwithstanding the dictum of Sir Archi- Eobbery of bald Aliaon, that forcing another to deliver up papers, " is not so properly a robbery as a separate offence " (5), a conviction of robbery for such an act took place many 1 Joan Eeid and Helen Bamett, Hollands and John Macginnis, H.C., Feb. 19th 1844 ; 2 Broun 116 July 12th 1832 ; Bell's Notes 44. (Lord Justice-Clerk Hope's charge). 4 Hume i. 105, case of Larg and TheLordJustice-ClerkHope'sMSS. Mitchell in note 4.— i. 108, 109, in the case of Jas. "Wylie and others, and case of Cranstoun there. — Ali- Glasgow, May 5th 1846, contains son i. 233, 234. — See Jas. Brodie the following note :—" Court stated and others, H.G., May 16th 1842; " to jury that they thought case one 1 Broun 341 and Bell's Notes 45, " of theft, and that the violence where the amount taken was 2d. ; " had been committed after the and John Paterson and David Eit- " theft, to. prevent F (the injured. chie, Stirling, Sept. 7th 1848; J. " party) fi*om crying out." Shaw 1, where a sentence of ten 2 John Dawson, March 14th years' transportation followed on 1835 ; Bell's Notes 41. conviction of two robberies of a 3 Jas. Blair, June 7th 1830 ; halfpenny and lid. respectively. B6irsNotes43.— Isabella Welsh or 5 Alison i. 239. * Vide 55, 56. E documents. 66 ROBBERY ART) STOUTHEIEF. Qualities of OFFENCE. Amotio. Property must be taken. Kules in case of theft appli- cable. Momentary re- moval suffi- cient. Although pro- perty not de- tached from jerson. Aggrava- tions. Prev. con. of theft or habit and repute not competent in robbery. "Whether com- petent in stouthrief dis-* puted. years after the publication of Ms treatise (1). One case has occurred of a trial for robbery by forcibly taking payment of a debt due to the assailant himself (2). As in the case of theft, the property must be truly taken from the owner or custodier to constitute the crime (3). It is no more than assault with an aggrar vated intent, unless some article be taken. If the per- son assailed take his money from his pocket to deliver it, and it fall to the ground, without the robber getting it into his hand, the crime is not complete (4). As re- gards what constitutes a complete taking or removal, the rules applicable to theft are equally so to stouthrief and robbery.* If the thing be even for a moment removed from the owner's possession by the dehnquent, the crime is complete (5). It has even been ruled, where the injured party's watch was drawn from his pocket by the robber, that the crime was complete, though the chain remained round his neck (6). As regards aggravations of robbery and stouthrief, the law is not very clearly fixed. Eobbery, it has been ex- pressly decided, cannot be charged as aggravated by previous conviction of theft, or by the person being habit and repute a thief (7). On the other hand it has in several cases been held competent to charge the aggra- vation of previous conviction of theft in the case of 1 Jas. Dunipaoe, Glasgow, Deo. 28th and 3qjh 1842 ; 1 Broun, 606. 2 Donald M'Innes and Malcolm M'Pherson, Inverness, April 25th 1836 ; 1 Swin. 198 and Bell's Notes 44. 3 Hume i. 108.— Alison i. 233, 234. 4 Hume i. 104.— Alison i. 236. 5 Hume i. 105.— Alison i. 234.— Jas. Holland, H.C., Deo. 12th 1808 ; Buchanan, part ii. 66 (Lord Justice- Clerk's charge — Chas. Hope, after- wards Lord Justice-General). 6 Jas. Purves and Geo. Mack- • Vide intosh, H.C., Nov. 9th 1846 ; Ark. 178.— See also Will. Cameron, Glas- gow, Dec. 22d 1851 ; J. Shaw 526 and 24 Sc. Jur. 140, and the case of Conolly, from Lord Justice-Clerk Hope's and Lord Wood's MSS. at p. 32 note 2. (These were cases of theft, but the principle is the same.) 7 Ellen Falconer and others, E.G., January 26th 1852 ; J. Shaw 646 and 24 Sc. Jur. 175 and 1 Stuart 311. (Stuart gives the name of another accused — Macleod— as the leading name.) — Alison i. 301. 31 to 34. ROBBERY AND STOUTHRIEF. 67 stouthrief (1). But even this point is still involved in Aggkava- doubt, as in the most recent case which has occurred, the '^^2^ aggravation was held irrelevant (2). It is thought that the aggravation was properly held relevant in th-e previous cases. Stouthrief is called by Baron Hume " violent theft," (3) and in cases of stouthrief it is always the prac- tice to charge that the property taken was " theftuously," as well as masterfully carried off. And it is to be observed that in holding such aggravations to be incompetent in cases of robbery, the Court went principally upon the previous practice. It is evident there has been no such previous practice in the case of stouthrief Stouthrief may stouthrief further be aggravated by its being committed by means ^l^sebreaking. of housebreaking (4). And the same aggravation has been charged and sustained as applicable to robbery (5). Although the cases do not appear to have occurred Possible ag- in practice, it is evident that some of the aggravations gravations. noticed under the head of theft* must be equally appli- cable both to stouthrief and robbery. One instance may suffice : it cannot be doubted that it would be a relevant aggravation that the person committing the act was a 1 Alison i. 302. — Jas. W. against the objection, were brought Walker and others, GlasgOTV, under the notice of the Court.) Jan. 14th 1850 ; J. Shaw 548 3 Hume i. 110. note — Daniel Sillers, Inverary, 4 Daniel Sillers, Inverary, Sept. Sept. 24th 1851; J. Shaw 548 24th 1851 ; J. Shaw 548 note— Will, note. — Will. Thomson alias Murray Thompson, alias Murray, and Geo. and Geo. Bryce alias Eob. Wilson, Bryce alias Bob. Wilson, Glasgow, Glasgow, April 28th or 23d 1861 ; 4 April 2hth or 23d 1861 ; 4 Irv. 47. Irv. 47. (Indictment). And on the The following indictments contain same principle previous conviction similar charges : Thos."Williamson, of stouthrief has been sustained as Ayr, Sept. 1857 ; Adv. Lib. Coll. — aggravating a charge of theft. John Michael Flaherty, Dumfries, April Smith, Ayr, Oct 2d 1860 ; 4 Irv. 1857 ; Adv. Lib. Coll.— Patrick 50 note. Murphy, i^Ayr, April 1858 ; Adv. 2 John Bryson and others, Glas- Lib. Coll. gow, April 22d 1863 ; 4 Irv. 384 5 Andrew Kennedy and John and 35 Sc. Jur. 460. (It does not M'Dougall, H.C., May 16th 1851 appear that the cases of Walker and (unreported). The term stouthrief Sillers noticed above, and which seems more appropriate in such a are the most direct authorities case. » Vide 60, 61. 68 Aggrava- tions. Pdkishment of bobbeky AND STOniH- KIEF. PIRACY. police-officer, whose duty it was to protect the pro- perty. Though still capital offences at common law, a sen- tence of death is never now demanded in cases of rohbery or stouthrief, and penal servitude is the punishment generally awarded. P 1 E A C T (1). PiKAcr. Captuie under colour of com- Crew or others seizing vessel. Ship in distress taking neces- saries not piracy. Question whether actual taking neces- sary. Acts of hostile depredation committed on the seas, without a commission from any state to authorise them, are piracy (2). And even where a ship has a commission, those on board may be guilty of piracy if, under colour of the commission, they commit depre- dations on property which their commission does not authorise them to capture (3). Taking possession of a vessel at sea, whether done by those on board, or by others, or feloniously carrying off goods or persons from ships, are acts of piracy (4). Biit it is not piracy if the master of a ship in distress take provisions or spars or the like from necessity, paying, or granting an obligation to pay for them (5). The institutional writers do not make it clear whether actual talcing is requLsite in every case to complete the offence of piracy. For example, if a ship, which 1 Piracy being an offence, which in the ordinary case is directed against property, this has been thought the best opportunity to notice it. 2 Hume i. 481, 482, and cases of Kidd: Stalfurde: Love and others : Brown and others : and Hews and others there.— Alison L 638, 639.— More ii. 386. 3 Hume i. 482, and cases of Eidd : and Potts there. 4 Hume i. 482, 483, and cases of Dawson and others : and Heaman and Gautier in note 1. and *. — ^Alison i. 639.— More ii. 386. 5 Hume i. 482. WRECKING. 69 has no commission to warrant such a proceeding, chase Pibact. another in a hostile manner, firing into her, and endea- vouring to capture her, but through some accident, such as a storm, this result is prevented, has the crime of piracy been committed ? That such an act is highly- punishable is evident, but whether it falls under the above denomination or not, is a more difficult question, and one which the cases in the books have left wholly undecided. The punishment of piracy is death by the common law Punishment of Scotland. It is probable, however, that in less aggra- ^^ vated cases, the pains of law would be restricted (1). WEECKING. To carry off articles from a wreck, though all on board Wrecking have perished, is a criminal act, punishable by an arbi- at common trary pain (2). And by statute (3) any person who takes to a foreign place " any ship or boat stranded, derelict, " or otherwise in distress, on or near the shore of the " sea or any tidal water, situate within the limits of the " United Kingdom, or any part of the cargo or apparel " thereof, or anything belonging thereto, or any wi;eck " found withia such limits as aforesaid, and there sells " the same," is liable to penal servitude not exceeding five years (4). 1 In England by the Act 7 Will. or Btouthrief as the case may be. iv. and 1 Yict. c 88, the Court has a It may even be a question under discretion to inflict a less sentence the law as it at present stands in than death in cases of piracy, where reference to found property, whether the acts done were not directly to taking goods from a wreck is not the danger of the lives of the lieges. theft in every case. (Vide 46, 47.) 2 Kume i. 485, 486.— Alison i. 3 Act 17 and 18 Vict. o. 104, § 479. 640. If any person remain in 4 See Penal Servitude Amend- charge of the vessel the act is theft ment Act, 27 and 28 Vict., c. 47. LAW AND BT STATUTE. 70 EESET. Qualities of OFFENCE. Eesetter not participant in the theft or robbery. Property must hare been stolen, or taken by robbery or Btouthrief. The receiver must know the property to be stolen. This crime consists in knowingly receiving aiticles pre^ viously taken by theft, stouthrief, or robbery, and felo- niously retaining them (1). The distinction between the thief or robber and the resetter, consists in the theft or robbery having been committed without the knowledge or participation of the person who receives. Wherever there is no element of joint adventure between the two parties, and the one is not cognisant of the theft until after it has been committed, however short be the interval between the perpetration of the theft or robbery and his coming to the knowledge of it, he can only be convicted of reset (2).* The first requisite of reset is, that the property have been truly at the time in the condition of stolen pro- perty, or property taken by robbery. In one case the police, after capturing the thief, returned the stolen pro- perty to him, that he might get it resetted by a broker, who, he said, had instigated him to the theft ; by whom accordingly it was received. This, it was argued, did not constitute reset, as the property was truly in the possession of the police, and the person who pre- viously had been the thief, acted only as the messenger of the police in taking it to the receiver. The Court did not expressly decide the point, but the charge was with- drawn from the jury (3). The second requisite is knowledge on the part of 1 Hume i. 113— Alison i. 328. 2 Eob. Black and Agnes Scott or Black, March 16th 1841; Bell's Notes 46. — John Mackenzie and Eliza Johnston, H.C., Nov. 2d 1846 ; Ark. 135. 3 Alex. Hamilton, Jan. 21st 1833 ; BeU'g Notes 46 and 6 Sc. Jur. 207. The reports do not in- dicate very clearly how the matter was dealt with. * For the rules as to the previous concert which constitutes guilt of the theft or robbery, vide 84, 55. EESET. 71 the resetter that the property has heen feloniously Qualities of acquired. And this knowledge must be absolute. °^''°'''"'^" It is not sufficient that the accused suspected the property to be stolen (1). And there must be an ingTeoesstry" actual receiving, either by his taking the property into his possession, or by his being art and part in its being hid away (2). It is not enough that he have harboured the thief, if the stolen property have not passed into his custody, but have remained on the thief's person (3). On the other hand, it is not neces- Not necessary sary that the resetter have been directly informed that £fOTmId that the property has been stolen (4). Neither does it mat- property stolen, ter whether he receive it directly from the thief, or no^bJ 'dSeor through other hands (5), nor on what footing he receives, ^^°'^ *'''''^- whether by purchasing the property, or lending upon it, pm-ohasef or merely agreeing to take charge of it (6). Indeed it is ^ugfe""" ™®'^* not indispensable that he take it into his possession by handling it at all. If the thief with his knowledge hide Connivance at the property anywhere, even in a hole in a roadside tMeTS reset. wall, and he connive at its being so stowed away, he is guilty of reset. Further, it is not necessary that the Eecei-ver at guilty knowledge be simultaneous with the receiving, ^uj't'^of'^^et If, a person have received property from another, and if he continue afterwards come to the knowledge that it is stolen pro- becoming perty, he is guilty of reset if he continue to keep it (7). "'^^'^^ °* '''^^'■ Besides the knowledge that the property has been intent to retain obtained feloniously, there must be the criminal inten- sentiai. tion of retaining it from the true owner (8). It is of course no crime to take stolen property from a thief in 1 Hume i. 114, and case of 27th 1826 ; Syme 18 (Lord Justice Johnie in note 1. — Alison i. 329, Clerk Boyle's charge). 330.— Isabella Stark or Mould, Feb. 5 Hume i. 114.— Alison i. 329. 9th 1835 ; Bell's Notes 46. 6 Hume i. 113.— Alison i. 329.— 2 Hume i. 113.— Alison i. 328. More ii. 385. 3 Hume i. 113.— Alison i. 328. 7 Helen EusseU and others, July 4 Hume i. 114.— Alison 1. 330.-^ 14th 1832 ; BeU'a Notes 46. Ann M'Gill or Mizzlebrook and 8 Hume 1. 115. Andrew Macdonald, H.C., Nov. 72 RESET. Qualities of order to restore it to the proprietor, or deliver it up to OFFENCES. ^^^ authorities. But the felonious receiving with intent to retain, is sufficient without any continued retention. If Eetention for a thief leavc his booty with a person who knows it to be short time suffi- ^^^^-^^^^ ^^^j for an hour or two or even for a shorter time, till an opportunity presents itself to dispose of it other- wise, the crime of reset is committed (1). This will even hold if a thief being pursued, rush into a house and hand the stolen property to a friend, and it be immediately thereafter found in his pocket, or thrust into a hidingplace Case of a wife in the house (2). A wife is not in the ordinary case held e pecu lar. g^j^^iy Qf peset if she conceal property to screen her hus- band. In her case mere guilty knowledge and retention is not enough, there must also be proof of active par- ticipation in the husband's crime (3). Beset must be It is not reset to receive the produce of the sale or artioie"sk)ien pledging of stolen property. But where the property . Question in case stolen is money the question has been raised, though not ™™ " absolutely decided, whether, if the thief have got the money changed, it is reset to receive the change (4). It is probably the sounder view to hold that reset in the case of money must be judged of by the same principles as in the case of other articles. Any rule but this would lead to rather anomalous results. It has been held in the case of the theft of money that the sort of money must be described, and of course the money described as stolen could not correspond with the proof as to the money received from the thief, if, after stealing a one-pound note, he first changed it into silver and then gave it to the person accused of reset (5). Aggravations Eeset may be aggravated by previous conviction of 1 Alison i. 333, H.C., Jan. 2d 1849 ; J. Shaw 149. 2 Alison i. 333, 334, and case of 4 Will. L. White and others; Finlay and others there. Perth, April 2lBt 1848 ; Ark. 459. 3 Alison i. 338, 339, and case 5 See W. White and others of Eennie there. — John Hamilton Glasgow, Sept 26th 1823 ; Shaw and Mary Garden or Hamilton, 106. RESET. 73 the same crime, but whether a previous conviction of Agokava- reset of robbery could be libelled as an aggravation of a charge of theft and vice versa, is a question which ^[o^tlona! ''°^' has not yet presented itself for decision. But it has been decided that it is hot competent in a case Previous oon- o i.j.1 1 J.' j.ij.j.1 miction of theft 01 reset to charge such aggravations as that the or "habit and accused is habit and repute a thief, or that he has been repute" moom- ^ ' petent. previously convicted of theft (1). Nor does the law Habit and re- recognise any such aggravation as that of habit and pute resetter in- *-* '' °° competent. repute a resetter (2). An attempt was once made to Eesetbyparents charge as an aggravation of reset that the resetters were *^'®*" the parents of the thief, the goods being stolen from his employers (3). It is possible that such an aggravation might be held relevant. But if the thief stole by the instigation of his parents, then it would probably be more correct to charge them as art and part of the theft.* On the other hand, if they were not cognisant of the theft till after its commission, it seems a slender ground for charging a special aggravation that the goods taken were the property of the thief's employer. But if the reset- BesetbvconBta- ter were a person whose special duty it was to protect We or jailor. property and prevent crime, there can be no doubt that in this case reset would be held aggravated. For example, if a jailor or police-officer were to receive stolen property from a person under his custody, and to retain it to screen the thief, this would be reset of a very aggravated description (4). By statute (5) to buy or receive any linen, fustian, or Beset of goods cotton goods which have been stolen when exposed in a tieadifidSi 1 Houston Cathie, H.C., Jan. (The aggravation was withdrawn, 27th 1823 ; Shaw 93. — Alison i. there being no sufficient averment 301. of it in the narrative given in the in- 2 Case of Cathie, supra. — Alison dictment.) 1. 301. — See also Bums v. Hart and 4 One indictment has been found Young, H.O., Deo. 19th 1856 ; 2 containing such a charge. Margaret Irv. 571 and 29 So. Jur. 93. M'Gillivray and Jas. Halliday, H.O.i 3 Alex. M'Graw jun. and others, 1832 ; Adv. Lib. Coll. July 20th 1831 ; Bell's Notes 187. 5 Act 18 Geo. ii. o. 27. * Vide 55. 74 BEBACH OF TEUST AND EMBEZZLEMENT. Aggkava- TIONS. PuSnSHMEBT or RESET. place used by a manufacturer for printing or bleaching purposes, &c., knowing them to have been so stolen, is a capital offence, the Court having a discretion to inflict fourteen years penal servitude (1). Eeset is punished either by imprisonment or penal servitude according to circumstances. And where the statutory offence above noticed of reset of goods taken from bleachfields occurs in practice, the pains of law are invariably restricted by the prosecutor. BREACH OF TRUST AND EMBEZZLEMENT (2). Distinction As already noticed under the head of theft, it is often THEFT AND cxtrcmely difficult in particular cases to trace the distinc- BKEACHOF ^Jqjj betwccn this crime and theft. And the rules given TKUST. ° . in the existing treatises on Criminal Law are now quite Law developed untrustworthy, the law having undergone very con- m recen years. g^(jgj.^]-,|g change in reference to this particular matter during the time which has elapsed since these treatises were written. Thu.s, as has been noticed in speaking of theft, many cases which were formerly dealt with as breaches of trust are now tried as thefts. Appropria- tions of parcels by. carriers, or of articles of dress by servants, — even though worn on their own persons, if 1 Penal Servitude Acts 16 & 17 Vict. 0. 99.— 20 & 21 Vict. u. 3.-27 & 28 Vict. t. 47. 2 Offences of this class are almost always prosecuted at common law, except in post-offices cases(m<2e p 81). The Act 39th Geo. III. c. 85, seems atone time to have been occasionally libelled on (Ebenezer Anderson, Perth, April 9th 1828;' Indictment, Lord Wood's Coll.) But the terms of the Act plainly recognise such offences as being already punishable in Scotland, being passed on the narrative of doubts having existed as to whether they were felony in England, and of the expediency of their being punished in the same manner in both parts of the United Kingdom. BEEACH OF TRUST AND EMBEZZLEMENT. "75 given for a specific use only ; appropriations of money Distinction by tellers of banks, or of articles given to tradesmen to theft and repair, and many other similar delinquencies which are breach of r ' ti 1 trust. spoken of in our treatises as breaches of trust only, are now- held to be thefts. All cases of felonious appropriation fall under the Qualities of denomination of breach of tmst and embezzlement, where x /^^T" ' Jjimitea owner- either thereis alimited ownership on the partof the accused ship or duty to — as by pledge or protracted loan — or where, though there is no title of this kind, still the actual possession of the property is with the accused, and his duty to the owner is only a duty to account for it when called on. That is Aa distin- to say, where it is not the duty of the person in whose luty to deUver hands the property is, to deliver it up in the specific form ™ specific form. in which he received it, — or in a form to change it into which was the express purpose of his receiving it — but where his duty is only to hold as an agent and to account for the property, failure to account is breach of trust and not theft. Again, the appropriation of money is Dutytoaooount breach of trust and embezzlement, where it is not mere °''*'"°'"^ ™ y- notes or gold or silver which have come into the accused's hands, as a servant from his master or for his master, and which it is his duty to deliver at once as he received them, but where what is appropriated is an amount which he is bound to account for only, and for which he fails to account. For example, if a tradesman Manager of set up a branch establishment for the sale of his goods, tranohbuBiness. and place a person in charge of it, giving him the con- trol over the stock, on the footing that periodically he is to account for the price of that portion of the stock which has been sold, undoubtedly if he appropriate to his own purposes any part of the price paid to him for goods, his offence is breach of trust and embezzlement and not theft. It is not the actual notes and coin which he receives in payment of the goods that he is bound to hand to his master, his duty is only to account for the 76 Qualities op OFFENCE. Pawnbroker. Factor. Treasurer. Public officer. Postmaster receiving money on understanding he was to write out and dis- patch p. o. order for it. BREACH OF TRUST AND EMBEZZLEMENT. value of the goods (1). On the same principle it has been lield that the actual title to possession which a pawnbroker obtains over goods pledged with him, pre- cludes his offence from being held theftuous, if he appropriate pledges before the period of forfeiture (2). The same rule applies to appropriation of rents by a factor (3), or of the funds of a society by the treasurer, or the like. It is breach of trust and embezzlement if a public ofiicer, who has received a sum of money in his official capacity, and for his department, appropriates it to his own use. Thus, where a woman gave the amount of a fine which she was sentenced to pay to a constable " as constable," for the purpose of its being paid to the procurator-fiscal, he was held properly charged with breach of trust (4). In the same way, a sheriff-officer who appropriates the proceeds of a poinding and sale, is guUty of breach of trust and embezzlement (5). And an official commits breach of trust and embezzlement if, having the money of his employers in his hands for the purpose of making payments to his employer's creditors, he take credit for sums as so paid away, when in fact he has not paid the money, but kept it for his own purposes (6). But there are cases that come much nearer to acts which are now held to be thefts than any of those above mentioned. Thus in one case the charge was that a post- master received from a person a sum of money, on the understanding that he was to write- and address a letter for the person who gave him the money, and to make 1 Hume i. 61.— Alison i. 356. —More ii. 388. 2 Catherine Crossgrove or Brad- ley, H.C, Feb. 6th 1850 ; J. Shaw 301. 3 Hume i 60. — Alison i. 355. 4 Macdonald v. Macdonald, H.O., Feb. 6th 1860; 3 Irv. 540 and 32 Bo. Jiir. 477. 5 Malcolm M'Kinlay and David Macdonald, Glasgow, Sept 16th 1836; 1 Swin. 304.— Jas. Camp- bell, H.C, March 14th 1845 ; 2 Broun 412. 6 John M'Leod, Inverness, April 28th 1858; 3 Irv. 79 and 30 So. Jur. 621. BREACH OP TRUST AND EMBEZZLEMENT. 77 out and enclose in the letter a post-office order for the Qualities of amount, and that he failed to do so. The charge was °'"'^'^''°''' put alternatively as theft or embezzlement, but it was sus- tained as a good objection to the charge of theft, that the money was here given on a footing of agency and negotiation, and not to be directly handed over to a third party (1). Again, where the accused was charged with Person receiving " ■£17, or thereby," for the special purpose of g^J^Yota^"'' " paying ^9 " to one person, and " of paying £8, being separate " the balance of said sum of dfi*!? sterling " to another, it was held that these averments did not constitute a case of theft (2). The division of the sum into two parts made it difficult to apply the rule of a duty to deliver in forma specifica, particularly as the sums to be paid were charged merely as " L.9," not " L.9 thereof," and as " L.8 being the balance," &c. It would undoubtedly have been theft if two separate parcels had been given to the accused, the one containing L.9 and the other L.8, with express instructions to deliver the L.9 parcel to one person, and the L.8 parcel to another. There would then have been two distinct acts of theft, each being a theft of certain notes or coins given to him to carry. But in the case of a general delivery of a sum like L.17, to be divided between two people, the payment to the first person might necessitate a change of the specific form of part of the balance. If there were three L.o notes and two L.l notes the specific form of the money would require to be altered before the first payment of L.9 could be made. There being thus, though in a very slight degree, a power of administration given to the accused, he not being used as a mere hand, his crime was held not to come up to that direct appropriation which would constitute theft. This case certainly came very near theft, and serves to show how fine is the distinction between the one crime and the other (3). 1 John M'Leod, supra. 3 The indictment in the case of 2 Hugh Climie, H.C., May 21st Jas. Simpson, Glasgow, Sept. 1838; 2 Swin. 118 and Bell's 27th 1847, was found relevant, Notes 11. the charge being theft. It shows 78 BREACH OP TRUST AM) EMBEZZLEMENT. Qualities OP In cases of breach of trust and embezzlement, the OFFENCE. guilty party usually resorts to fraudulent devices, such as ^cefto conceal making false entries in books, or failing to make entries defalcations, -which he ought to make, in order to conceal his defalca- tions. But it is by no means necessary that he should do anything of this sort to constitute the offence. The But conceal- Crime is complete if he appropriate what is in his pos- STfto^offlnce"' session in virtue of the trust reposed in him, even though he in no way conceal it. Thus where the treasurer of a Friendly Society allowed a balance beyond that which by its rules he was entitled to have in hand, to accumu- late against himself for several months, but without committing any falsehood in his books, it was held not to be a defence that the society knew that he was in arrear, and that it was a question for the jury, in a re- vision of the whole circumstances, whether he was criminally in arrear, by appropriating the society's money to his own purposes. It was held, further, in point of law, that the fact of his accounts having been docqueted from time to time, with a statement of the balance due by him, implied no consent on the part of the society that the accused might continue to hold the sums which he was in arrear (1). The trust may It docs not affcct the nature of an offence of this afoaud'"'"'*"^ sort, that the trust which is broken was itself created Person pre- ^1 ^ fraud On the part of the accused. Thus, if a person sheriff^offloe? ^^° ^® ^°* ^ sheriff-officer, induces another, on pretence and carrying that he is SO, to intrust him with a warrant of sale, and saie.''^ "'^ appropriates the proceed of the sale, he may be relev- antly charged with breach of the trust reposed in him, although it was reposed in him under a misapprehen- admirably the distinction hetween sum to pay one specific account, the above case and a true case of Indictment Adv. Lib. Coll. and theft. Simpson received sums from Lord "Wood's MSS. his employer to pay accounts ; but 1 Walter Duncan, Perth, Sept it was on each occasion one specific 26th 1849 ; J. Shaw !!70. BREACH OP TRUST AND EMBEZZLEMENT. 79 sion (1). Again, where a partner of a firm fraudulently Qualities of used the signature of the firm to obtain funds, which he °^"^™'^^- appropriated, he was charged with breach of trust and signature o?^ embezzlement, in so far as he did not apply the money he Arm to obtain obtained by using the firm's signature to the use of firm, but embezzled and appropriated it to his own uses (2). Lastly, a post-of&ce official, being accused of embezzling Post officer the postage " chargeable or charged by you upon the said ^eroharge. "letter," the objection that the words, ," or charged," were irrelevant was repelled, as whatever postage the accused charged, whether an overcharge or not, was in truth a payment made to him, and with which he was intrusted in virtue of his of&ce (3). In conclusion, it may be well to notice two cases sub- Doubtful sequent to the treatises of Baron Hume and Sir Archibald Alison, in which the ofi'ence was held to be breach of trust and embezzlement, but which there can be little doubt might now be charged as thefts, in accordance with subsequent decisions. In the first of these cases (4), the Bookbinder appropriation by a bookbinder of books left with him appropriating for the purpose of being bound, was held to be breach of trust and embezzlement, and the reporter remarks in a note, that though no objection was stated, the ques- tion whether the offence was properly so described, or was theft, was maturely considered. But it seems im- possible to distinguish between this case and the case of a watchmaker appropriating watches left with him for repair, which was pronounced theft by a judgment of the whole Court (5). And two of the judges who tried 1 Malcolm M'Kinlay and David him. But it is thotigbt that the Macdonald, Glasgow, Sept. 15th charge was undoubtedly relevant. 1836 ; 1 S win. 304 (Indictment). 3 John Eeeves, Glasgow, Sept. 2 George Smith, Glasgow, Sept. 22d 1843; 1 Broun 612. 15th 1836 ; 1 Swin. 301 (Indict- i Hob. Sutherland, E.G., Mar. ment). It is right to mention that 21st 1836 ; 1 Swin. 162 and Bell's the relevancy was not discussed, Notes 9. as the accused failed to appear, and 5 George Brown, E.O., July 3d sentence oJ fugitation passed against 1839 ; 2 Swin. 394. 80 BREACH OF TRUST AND EMBEZZLEMENT. Doubtful CASES. Custodier of a locked box. AeGRAVA- TIOHS. Punishment op embezzle- MENT. the case of the bookbinder (1), in giving their opinions in . this latter case, admitted that the judgment must deprive the former decision of all authority. The other case (2) was one in which a person was entrusted with the cus- tody of a locked box, containing money and papers, belonging to a society, and appropriated the box and its contents. This, it was distinctly laid down, was breach of trust and embezzlement, and not theft. But the accused had no control or administration of any kind. His possession amounted to a bare custody, and his duty was to redeliver the box exactly as he received it. Con- struing such a case by the light of the subsequent decisions, it is almost impossible to hold the offence to have been anything else than theft (3). And it is worthy of remark, that the judge who laid it down that the act of the accused was not theft, was the same judge (4) who afterwards, in the watchmaker's case, was in the minority. Aggravations are seldom charged in cases of breach of trust and embezzlement, except where there has been a previous conviction. But as in the case of theft or reset, it would probably be held a high aggravation that the person committing the breach of trust was a public of&cial whose special duty it was to protect property (b). The punishment of breach of trust and embezzlement is either imprisonment or penal servitude, according to the circumstances of each particular case. 1 Lords Moncrieff and Medwyn. Lord Gillies, who presided in the case of the bookbinder, had been removed to the Court of Exchequer before the case of Brown. 2 David Walker, Stirling, Sept 3d 1836; 1 Swin. 294 and Bell's Notes 11. 3 See also Craig v. Ponton, H.C., Nov. 16th 1829; 2 Sc. Jur. 31, where the accused was held pro- perly convicted of theft, having broken open a box which had been left in his charge, and abstracted the contents. 4 Lord Justice General, then Lord Justice Clerk Boyle. 5 There is one indictment in which breach of trust is charged as aggravated by its being com- mitted by an officer of excise, in the course of his employment as such- Thos. Black, H.C., July 16th 1828; Adv. Lib. Coll. POST OFFICE THEFTS, ETC. 81 THEFT, RESET, OE BREACH OF TRUST UNDER THE POST-OFFICE STATUTE. The law as to these offences is contained in the Act PosT-OmoB 7 Will. IV. and 1 Vict. c. 36. It wiU be most conveni- °^^'^°'^- ent to notice seriatim the offences which bear the char- acter of theft, reset, or breach of trust (1). § 25. " Every person employed by or under the post- Opening or " office (2), who shall, contrary to his duty, open, or pro- letters. " cure or suffer to be opened, a post letter, or shall wil- " fully detain or delay, or procure or suffer to be detained " or delayed, a post letter," commits a crime and offence, punishable by fine or imprisonment, or both, except in the cases of letters " returned for want of a true direc- " tion," or " by reason that the person to whom the same " shall be directed is dead or cannot be found, or shall " have refused the same or neglected to pay the postage " thereof," — or in the case of letters opened, detained, or delayed, " in obedience to an express warrant in writ- " ing " of a principal Secretary of State in Great Britain, or in Ireland " under the hand and seal of the Lord " Lieutenant of Ireland." § 26. " Every person employed under the post-office, stealing, " who shall steal, or shall for any purpose whatever em- s^reTing^or " bezzle, secrete, or destroy a post letter," commits a high ^eetroying crime and offence, and is liable to penal servitude (3) for seven years, or imprisonment for not more than three 1 Some of the offences are (§ 47), which is too lengthy to be more akin to Forgery and Fraud. quoted. — Vide 115. 3 Penal servitude was substi- 2 For the scope of this term and tuted for transportation as to this the other terms used in this and the and all other offences under this following sections, reference must Statute by the Acts 20 and 21 Vict be made to the interpretation clause c. 3 and 27 and 28 Vict. c. 47. 82 POST OFFICE THEFTS, ETC. POST-bpFICB OFFENCES. Letters con- taining valuables. Stealing valuables from letters. Stealing bag or letter from bag, or from post oflBce or post office official, or mail. Stopping mail with intent to rob. Contravention of §§27, 28 in reference to same letter. Taking or opening bag sent by packet, or letter from such bag. Knowingly receiving articles stolen ;&c., as above. years, and if such letter "shall contain therein any " chattel or money whatsoever, or any valuable security," the offender is liable to penal servitude for life. § 27. " Every person who shall steal from or out of a " post letter any chattel or money, or valuable security," commits a high crime and offence, and is liable to penal servitude for life. § 28. " Every person who shall steal a post letter bag, " or a post letter from a post letter bag, or shall steal a " post letter from a post office; or from an officer of the " post office, or from a mail, or shall stop a mail with. " intent to rob or search the same," commits a high crime and offence, and is liable to penal servitude for life. It has been held that a contravention of both the previous sections may be committed in reference to the same letter, i.e., that a person offending against § 28 by taking a letter, may offend against § 27 by thereafter stealing money or other valuables out of the same letter (1). § 29. " Every person who shall steal or unlawfully " take away a post letter bag sent by a post office packet, " or who shall steal or unlawfully take a letter out of " any such bag, or shall unlawfully open any such bag," commits a high crime and offence, and is liable to penal servitude for fourteen- years. § 30. " Every person who shall receive any post letter " or post letter bag, or any chattel or money, or valuable " security, the stealing, or taking, or embezzling, or " secreting whereof shall amount to felony under the " Post Office Acts, knowing the same to have been •' feloniously stolen, taken, embezzled, or secreted, and " to have been sent, or to have been intended to be sent " by the post," commits a high crime and offence, and is liable to penal servitude for life (2). 1 Alex. M'Kay, Inverness, Sept. 24th 1861 ; i Irv. 88. 2 The remaining provisions of this section, relating to prosecution, are of little or no value in Scottish practice. POST-OFFICE THEFTS, ETC. 83 § 31. " Every person who shall fraudulently retain, or Post-Office shall wilfully secrete or keep or detain, or being " required to deliver up by an officer of the Post-Office, letter m^f- " ehall neglect or refuse to deliver up a post letter which found wBt^ " ought to have been delivered to any other person, or a ^^.g. " post letter bag or post letter which shall have been sent," whether the " same shall have been found by the person " secreting, keeping, or detaining, or neglecting, or refusing " to deliver up the same, or by any other person," commits a crime and offence, and is liable to fine and imprisonment. § 32. " Every person employed in the Post-Office who stealing, " shall steal, or shall for any purpose embezzle, secrete, or ™^ll^^^^' " destroy, or shall wilfully detain or delay in course of con- destroying, or " veyance or delivery thereof by the post, any printed votes printed papers " or proceedings in Parliament, or any printed newspaper, ^®°' ^^ P°^*" " or any other printed paper whatever, sent by the post " without covers or in covers open at the sides," commits a crime and offence, and is liable to fine or imprison- ment, or both. Under the older statutes the question arose whether a Scope of term letter delivered to a post runner, not as part of the mail, ^"^^ ^"®'^' but privately to be delivered to a certain person, was a letter falling within the provisions of the statutes (1). Under the present Act it is declared that a letter shall be a post letter from the time of its being delivered to a Post-Office, and that delivery to a letter-carrier or other person, authorised to receive letters for the post, shall be a delivery to the Post-Office (2). Such are the offences created by the Act, and which Pukishmevt. have the character of thefts or breaches of trust. As regards punishments, it is enacted by § 41 that offenders who are liable under the other sections to penal servitude for life, may be sentenced to any term not less than seven years, or to be imprisoned for any term not exceeding four years, and offenders liable to 1 Alison 1. 346, case of Eoss 2 Act 7 Will. iv. and 1 Vict. a. there. 36. § 47. 84 BREAKING INTO HOUSES OR SHIPS Punishment, fourteen years of penal servitude may be sentenced to any term not less than seven years, or to imprisonment not exceeding three years. § 42 enacts that, in case of sen- tence of imprisonment, the Court may add hard labour, and also solitary confinement for the whole, or any part, of the term (1). BKEAKING INTO HOUSES OE SHIPS WITH FELONIOUS INTENT. HousEBEEAK- Xo break into a house for the purpose of stealing from ING WITH , INTENT. it, though nothing be actually carried off, is a criminal offence (2). All the rules already noticed in speak- ing of housebreaking as an aggravation of theft apply to the substantive offence.* It is also a crime to break . into a building with intent to break into and steal from intent to break an adioining building (3). It would even appear that a and steal from '' ? ■ -, n ^ ^ i. . i ■ adjoining charge has been sustained of housebreaking with intent to obtain access to and steal from an adjoining house, without its being averred that the second house was to be broken into (4). Breaking house with house. 1 In present practice solitary confinement is always limited to periods of not more than a month, and not exceeding a certain number of months in each yeax. 2 Hume i. 102, cases of Macqneeu and Baillie : Campbell : Ferguson ; Sutherland: and Brown and Kelly in note 2, and * — Alison, i. 294. 3 Will. Thompson and others, E.G., Mar. 3d 1846; 2 Broun 389. 4 Jas. Bell, Glasgow, Spring 1830; 2 Bronn 391 note. It may be doubted whether this was a good form of charge, though it might be relevant. Such an act seems to amount simply, to house- breaking with intent to steal. For, if a thief break into a building • Vide which is in juxtaposition to another building and in open communica- tion with it, it seems reasonable to hold the buildings to be in the same position in a question of house- breaking, as if they were one house. The violation of the security of the one is a violation of the security of both. In one case a charge seems to have been sustained where the housebreaking was libelled as committed by breaking into "a bjTe "immediately adjoining the said "house, and then passing over a " bedstead which formed the divi- " sion between the said house and " byre." Jas. Hall and Will. Don- nelly, Glasgow, Jan. 1835 ; Lord Justice General Boyle's MSS. 34 to 43. WITH FELONIOUS INTENT. 85 Attempt to commit housebreaking " is not considered Housebbeak- ING wit: IKTENT. a relevant charge (1). But, although the thief may ™<*'^'™ have been prevented from entering the premises, stiU, if Attempt at he have actually overcome the security of the building, he housebreaking is liable to punishment. Thus where it was charged that Breaking with the accused broke the door of a house with intent to intfut to enter enter and steal, the libel was found relevant (2). But relevant, if the breaking must have overcome the security. Where com&*^ °^^^' the charge was, that the accused broke a pane of glass and endeavoured to remove the shutter which was be- hind it, it was held that the shutter being still fastened, the security of the premises had not been overcome, and that the charge was irrelevant (3). It has never been decided whether " Shipbreaking with Shipbreaking intent to steal," is a relevant charge. In the only case in ^"^ in^nt. which it has occurred, the prosecutor withdrew the charge (4). But there seems no principle upon which such charge con- an act should not be held a relevant point of dittay. prinSpil"'' Housebreaking with intent to steal may be aggravated aggrava- - TIONS by previous conviction, but it is not competent to allege as aggravations that the accused is habit and repute a thief, or that he has been previously convicted of theft (5). Assuming that shipbreaking with intent is a relevant charge, it may be a question whether a previous con- viction of housebreaking may be charged in a case of shipbreaking and vice versa. The punishment is either imprisonment or penal servi- punishment tude according to circumstances. Intentto steal is the only ovuousts- O -J BREAKING purpose of housebreaking which occurs in common law with intent. practice. But by statute (6) it is made a capital offence to 1 Jas. Monteith, H.C., Jan. vocates' Library, containing similar 22d 1840; 2 Swin. 483 and Bell's charges. Notes 40. — Thos. Sinclair and 3 Thos. Sinclair and Jas. Jas. M'Lymont, Glasgow, April M'liyiaoiit supra. 21st 1864 ; 4 Irv. 499 and 36 So. 4: John Forbes, H.C, July 25tli Jmr. 5S7 (Lord Neaves' opinion). 1845 ; 2 Broun 461. 2 James Monteith st/pra, — 5 Geo. Buckley, H.O., July 12th There are also numerous Indict- 1822 ; Shaw 73. menta in the Collection in the Ad- 6 Act 29 Geo. iii. c. 46. 86 Punishment OF HOOSE- BEEAKING WITH INTENT. OPENING LOCKFAST PLACES. treak into buildings with intent to cut or destroy serge, or other woollen goods in the loom, or velvet, or silk goods or goods containing silk in the loom, or linen or cotton goods, or goods containing linen or cotton in the loom, or apparatus for making any such manufactures. No such case has occurred fqr a long time in practice, but according to the practice in analogous cases, a capital sentence would not now be demanded by the Crown. OPENING LOCKFAST PLACES WITH INTENT TO STEAL. Question WHETHER RELEVANT CHARQE. This charge does not seem ever to have been abso- lutely sustained. In the two cases which are reported, " the charge was withdrawn (1 ). But there appears to be no sound reason for holding such a charge to be irrelevant. It is evident that in some cases, the proof of the intent would be more difficult than in a case of housebreaking. For example, if a servant is detected using a key to open a desk, there may be much room for doubt whether there was a theftuous intent, as distinguished from a mere indulgence of curiosity. But on the other hand it is easy to suppose a case where there could be not a shadow of doubt as to the intent. For example, if a stranger were caught in a house, having just bui^t open the lock of some secured place, or opened it with a picklock, there could be no doubt as to the intent. The question of intent is one of evidence, and there seems no reason in principle why 1 Allan Lawrie, H.O., July 14th 1837 ; 2 Swin. 101 note & Bell's Notes 40.— Will. Mickel, Jedburgh, April 23d 1844; 2 Broun 175. Therearetwo indictmente for this offence prior to these dates in the Advocates' Lib- rary Collection. The only case subsequent to the above is that of Jas. MKJhee, Perth April 1849, (un- reported) where a plea was tendered, but whether to this part of the charge has not been ascertained ATTEMPT TO STEAL— VIOLATING SEPULCHRES. §7 tlie possibility of a difficulty in proof should be held to Question affect the relevancy of a charge, if that which is charged Relevant plainly implies what is criminal and punishable. charge. ATTEMPT TO STEAL. Attempt to steal is not a relevant charge at common Attempt to law (1). But it has been held that in police courts such ^^^^_ ikrele^ an, offence as "attempting to pick pockets" may be Attempt to punished (2). By statute attempt to steal oysters (3) or ^oUceoffe^e. mussels (4) from beds belonging to others is made punish- Attempt to X.T x. n • • i. 1. J.T. J.T. ■ • J. steal oysters or abJe by ime or imprisonment, or both, the imprisonment musseis. not to exceed three months. VIOLATING SEPULCHRES. BODIES FROM GRAVES. Although violation of the sepulchres, of the dead may removing not be, in the strict sense of the term, an offence against property, this it is thought is the most appropriate place to notice it. All unauthorized removal of bodies from graves is criminal by the common law of Scotland (5). If the body be at all moved from its resting-place, the 1 Walter D. Ure, H.C., Feb. 15th merited on in Coyle v. M'Kenna, 1858; 3 Irv. 10 and 30 So. Jur. 310. H.C., Nov. 2lBt 1859; 3 Irv. 452 —See also Jean M'Lean, Glasgow, and 32 So. Jur. 4.' Deo. 21st 1829 ; 5 Deas and Ander- 3 Act 3 & 4 Vict. o. 74 ^Eob. son 145. Thompson and Geo. Mackenzie, 2 Jackson v. Linton, H.C., Feb. H.O., Dec. 26th 1842 ; 1 Broun 475. 27th 1860 ; 3 Irv. 663.— The case 4 Act 10 and 11 Viot. u. 92. of Etch and Golf v. Burnett H.G., 5 Hume i. 85, and case of Samuel March 15th 1849 ; J. Shaw 201, there, and cases of Begg : Pattison would be to some extent an and others: Campbell and others: 'authority on this point were it Wilson :Lawrie: Miller and Hodge: not for the manifest inaccuracy and Stevenson or Hodge in note 1 of the report, which was com- and *. — Alison i. 461, 462. 88 FALSEHOOD. Eemovlng bodies fkom GRAVES. Attempt punishable. crime is complete (1). But thougli the delinquent be scared or captured before he has reached or touched the body, he may be tried and punished for the attempt (2). Both in the case of the completed crime and of the at- tempt, the punishment is arbitrary, and would probably never be extended beyond imprisonment. FALSEHOOD AND FEAUD. Different species of falsehood. It may be useful, as an introduction to this subject, to say a few words on the different species of falsehood which are held to be criminal. Falsehood and Fraud is chosen as the heading of the present chapter, as being the most com- prehensive term (3), and as embracing all offences which consist in fraudulent deception. But in practice various terms are used to express the different offences of this class. Forgery is the name generally applied to the case of false writings, though the term falsehood, fraud, and wilful imposition, and the term falsehood alone, are sometimes properly employed in reference to writings. When the words falsehood, fraud, and wilful imposition are placed together, they have come in practice to be considered as meaning one offence. But any one of the three terms implies crime by itself (4). Accordingly numerous charges of falsehood alone, and of fraud alone, and of falsehood and fraud without wilful imposition, are to be found in the Books of Adjournal The expres- 1 Alison i. 463. 2 AKson i. 463. — Geo. Camp- bell and others, H.C., June 21st 1819 ; Shaw 1 and Hume i. 85 note * -John M'Quilien, H.O., Feb. 11th 1828; Syme321. 3 See Duncan Stalker and Thos. TV. Outhbert, H.O., January 22d 1844; 2 Broun 70 (Lord Justice Clerk Hope's opinion). 4 Will. HamUton, July 12th 1831 ; Bell's Notes 33. — Jas. Maitland, H.C., Feb. 7th 1842 ; 1 Broun 57 and Bell's Notes 63.— There are several other cases to the same effect in Bell's Notes 63. FALSEHOOD. 89 sion Swindling is one not well known in tte law of Different O , 1 1 J 1 . . SPECIES OF ocotiancl. An attempt was made at one time to mtro- falsehood. duce it, tut it was discouraged by the Court, and has Use of term been discontinued. 'Z^^^i ^'- Those modes of criminal falsehood which consist in falsehood the making and using of false writings, fall to be noticed ^^ ^''™' first. In doing so, it is necessary at the outset to explain the use of the word false as applied in criminal Meaning of law to the case of writings. A writ is false in law not I^°piied to *^ by containing falsehoods, but by bearing to be that writings. which it is not. Thus, if a person write a letter in his own name, and utter it as his own letter, it is genuine, although every statement it contains be untrue (1 ). On the other hand, if he fabricate a document as being that of another person, and utter it as such, it is a false writing, although all the statements contained in it be consistent with fact.- For example, if a person have lost an I. 0. U. and fabricate another, the statement in the fabricated document is true,vbut the document itself is fa;lse. It is of great importance to keep this distinction in view, as it generally determines the question to what category of offences a particular case of falsehood by writ belongs. To crimes of this class two things are essential ; Requisites of first, that a writ be false ; second, that it be feloniously used as genuine. Except in certain statutory cases the Fabrication making of a false writ is only a step to the completion °°'y prepara- ° .; jr JT ^gJ■y st,gp_ of an indictable crime (2). The theory of a criminal charge of this sort is — ^that a false writ has been made by the accused or some one else, no matter who, and that the accused, knowing it to be false, was guilty of trying to use it as genuine. Therefore in what follows, wherever acts of making false writs are spoken of as criminal, it must be understood that the attempted use is always assumed as following the fabrication. 1 Simon Fraser, H.O., Not. 21st 2 Michael Hinohy, Perth, Sept. and Dec. 6th 1859 ; 3 Irv. 467 and 30th 1864; 4 Irv. 561 and 37 8c. 32 So. Jur. 148 (Lord Justice Clerk Jur. 24. Inglis' opinion). 90 FALSEHOOD. EEQmSITES OF OFFENCE. Mode of fabri- cation or bad- ness of execu- tion immate- rial. " Not less cri- minal because document in- valid for want of stximp. Or because document of no force in Scotland. TJse tending to prejudice inte- rests of others sufficient. As regards the fabrication generally, it does not mat- ter whether it be done \^ith pen and ink, or by engraving, or any other process (1). Nor does it matter though the execution be very clumsy (2), or the document be badly framed, or the signature blundered in the spelling. Even the substitution of one Christian name for another, or the omission or addition of a name, to the name of the person whose deed it is intended to imitate is imma- terial (3). Further, it does not matter though the document be deficient in statutory or other solemnities, as by being written on unstamped instead of stamped paper, or on a stamp of a wrong description. Indeed the writing may be of the most informal kind, such as an ordinary letter or receipt (4). And though the document be one which, if genuine, would not be avail- able for any practical purpose in Scotland, still this will not prevent it from being the basis of a criminal charge. If a criminal falsehood, by using a false writing for tbe purpose of deception be alleged, that is enough. Thus, where a party falsely swore that he had a diploma from the Eoyal College of Surgeons in London, and when charged with perjury produced a forged diploma, he was held properly charged with forgery (5). In short, aU that is necessary to make such a charge criminal, is that an attempt should be made knowingly to use a, false 1 Burnett 181, and case of Scott and Adamson there, (and Hume i. 141, note 4). 2 John M'Lennan and Kenneth Mackenzie, Inverness, April 1840; Bell's Notes S6. — ^In the case of Peter Boss or M'William, Inver- ness, Sept 14th 1849, it was ob- jected to the relevancy, "that the " writing, ex facie, could not be " supposed by anybody to be a " genuine document." The ob- jection was repelled. Such a fact is matter of observation only for the jury. Lord Oockburn's MSS. 3 Hiune i. 141, case of Nisbet there, and cases oi Elliot : and Da- vidson in note 1. (In reference to the case of Elliot there seems to be some confusion. While Baron Hume gives this name to the case, Burnett, evidently referring to the same case, gives it the name of Myndham. — Burnett 181.)— Alison i. 371, 372, and case of Gillespie there. 4 Hume i. 146, 147. — Alison l 382, 383. 5 James Myles, H.O., January 7th 1848 ; Ark. 400. FALSEHOOD. 91 writing, of however common a character, or however Eequisites of deficient in solemnities, as a true writ, and that the use — '■ should tend to prejudice the interests of others (1). And the law presumes this result in every case where Law presumes the false writ has any real and serious purpose (2), where doou- though there be no positive gain to the guUty party (3). Sousp^^ose. Thus, to make a false receipt for money in place of one that has been lost, is criminal, and it is no defence to say that the sum for which the document hears to be a receipt was actually paid (4>\ It has even been held Case of forgery ■*■ I* where sigua- that placing a false signature on a bank-receipt was ture unneoes- forgery, although no such signature was necessary in ^^^' order to obtain payment (6). The subject of falsehood by writ divides itself into, I. Division of Forgery ; II. Falsehood by fabricating writings where there is no direct forgery. The preparatory step or fabrication of the writ will be first spoken of, and then notice will be taken of the uttering essential to com- plete the crime, whether it be forgery or only a minor offence. I. Forgery may be defined as the making and publish- Fokgbey. ing of a writing as the genuine signed writ of any one, when in' truth it is not so (6). -There are three situa- tions where the word forgery as a nomen juris may be applied. First, where the whole document — corptis and signa- whole doou- ture— is fabricated. ment forged. Second, where the signature alone is simulated. signature Third, where a writing is placed above a genuine signa- writing above ture, without the authority of the author of the signa- '™® signature. ture. 1 Hume i. 150. 4 Hume i. 154, 155. 2 Will. Ehind, Perth, Sept. 26th 5 John Henderson, Perth, Sept. 1860 ; 3 Irv. 613. 8th 1830 ; 5 Deas and Anderson 151. 3 Hume i. 172, case of Grant in 6 Hume 1. 140. — Alison i. 371. note 2.— John Smith, H.C., Dec. 21st 1852 ; 1 Irv. 125. 92 FALSEHOOD. Forgery. All other cases of faLrication of deeds setting forth falsehoods, or cases that amount to mere vitiation, as by erasure, interpolation, addition, antedating, and the like, are minor oflFences, to which the term forgery, in its strict sense, is not applicable (1). whethCT writ- ^* must here be noticed that, though the crime of ing must be forgery is one which occurs constantly in practice, and one iga ly. about which very many questions have been raised and discussed, it appears still to be a question which is held not to be definitely settled, whether to constitute forgery, the document must be of an obligatory character. In the latest reported case an opinion seems to have been indicated that the document must be obligatory (2). It is thought that such a view is not consistent with prin- ciple, and cannot be supported by reference to any authority. It is not sound in principle, because the prejudice to the interests of others which may result from a forgery, does not depend upon the document being obligatory. A forged threatening letter, or a forged letter falsely announcing a death, and relied on because believed to be genuine, may produce results much more disastrous to the interests of others than the mere pecuniary loss which a forged document of an obligatory character is likely to occasion. But, further, there is no authority to support such a doctrine. Baron Hume, in his definition, speaks of " the felonious " making and publishing of a writing to the prejudice of " another, as the signed instrument of a person who has " not signed it " (3). And, again, " among private " writings it is not confined to those which, like bills, " bonds, or bank-notes, are calculated for patrimonial " profit : It applies equally to aU such forgeries as tend 1 Hume 1 158, 1S9, 160.— Simon Court).— Alison i. 384 contra. Fraser, H.O., Nov. 21st and Dec. 6th 2 Henry Imrie, Perth, Sept 18th 1869 ; 3 Irv. 467 and 32 So. Jur. 148 1863 ; 4 Irv. 436 and 36 So. Jur. 3. (Opinions of the majority of the 3 Hume i. 140. FALSEHOOD. 93 " to any purpose of personal security or revenge, or Foeqert. " other gratification or advantage, in itself of a grave " and serious nature, and by the panel deemed suf&- " ciently material to he compassed in this way." This rule "would appear to exclude no cases except those in which the forgery is manifestly only of a jocular nature, not intended, and having no tendency to injure. But it is easy to suppose a case which would clearly fall under Baron Hume's definition, and in which there would still be no element of obligation at alL For ex- ample, let it be supposed that in order to prevent a number of persons from voting in a parliamentary elec- tion, some one were to forge letters in the name of a relative of each of the persons respectively, announcing another near relation, residing in a distant place, to be dangerously ill, and urging the person addressed to come at once, and that the forger were to have the letters posted from the distant places, so that they arrived the day before the election, such a case would clearly be within the scope of Baron Hume's definition. The language of Sir Archibald Alison is less clear than that of Baron Hume. He lays it down that " It is equally " forgery to imitate the subscriptions of persons to the " most irregular as to the most solemn instruments, " provided the writing be of such a kind as was intended " to create an obligation against the party whose sub- " scription is counterfeited, or seriously to affect his " patrimonial interest," (1). This is his general defini- tion, and in elaborating it he says, " forgery may be " committed of aU writings intended to be obligatory," &c. But he immediately adds, " nay, the same holds " of the forgery of writings intended to answer any " purpose of personal security or revenge, or any other " gratification or advantage in itself of a grave and seri- " ous nature " (2). Such are the dicta of the law treatises 1 Alison i. 381, 382. 2 Alison i. 383. 94 FALSEHOOD. Forgery. Imitation of handwriting not essential. Signing name of person ■who cannot write. False pretence of authority to sign. Signing name as that of per- son of same name, or as that of a person holding a cer- tain position. on this subject, and they plainly lay down no distinct rule that forgery must be of an obligatory writing. As regards the practice, the indictments in which the using and uttering of " any forged writing " has been libelled are innumerable (1). And the question was absolutely raised in two cases, and the objection to the indictment repelled (2). It is not essential to a charge of forgery that there should be any imitation of handwriting. It is forgery to sign a document with the name of a person who cannot write (3), or with the name of another, on a false pretence that he gave his authority to the act (4). It is also forgery if a person sign his own name with the in- tention that the deed shall pass as that of another person of the same name, or as being the deed of a per- son having a certain position or character, when in reality he has no such position (5). Thus it is forgery if a person sign his own name on a bill, so as to make it 1 Besides a large nnmber of in- dictments in the Adv. Lib. Coll., the following reported cases may be referred to, in all of which an in- terlocutor of relevancy was pro- nounced. Will. Foodie and John Campbell, H.C., June 12th 1837 ; 1 Swin. 509 and Bell's Notes 54.— Walter H. Smith, H.C., Dec. 7th 1840; 2 Swin. 525.— John Neil, H.O., Jan. 13th 1845 ; 2 Broun 368. — David Howieson, H.C., Mar. 15th 1847; Ark. 237.— Arch. M'Millau, H:.C., Jan. 24th 1859; 3 Irv. 317 and 31 So. Jur. 175. This case was brought before the whole Court on a separate question of relevancy; but no objection was raised from the bar or by the Court to the major proposition, whioh charged the uttering of a forged "letter or "other writing." 2 John M'Leod, Inverness, April 28th 1858 ; 3 Irv. 79 and 30 So. Jur. 521 — ^Will. Ehind, Perth, Sept 26th 1860; 3 Irv. 613.— In both these cases the Court stated that the prer vious practice supported the relev- ancy of such a charge. 3 Hume i. 141. — Alison i. 374. 4 Daniel Taylor, H.C., May 16th 1853 ; 1 Irv. 230 and 25 Sc. Jur. 403. 5 Hume i. 142, and note 1. — Ali- son i. 376.— More ii. 390 ^Alex. J. P. Menzies, H.C., Feb. 5th 1849 ; J. Shaw 153.— See also WilL Duncan and Alex. Cumming, H.O., March 11th 1850 ; J. Shaw 334.— At Perth, October 1848, Alexander Mackintosh was convicted of for- gery by indorsing his own name on the back of a letter of credit, in- tending it to pass for the signature of another Alexander Mackintosh, who was truly the party in whose favour the letter was drawn. Lord Wood's MSS. FALSEHOOD. 95 appear to be the name of a person carrying on a business porgkkt. as a partner of a firm, and there be no such firm (1). Getting person And it is forgery to get a person to sign his own name ordef'to pTsVit with the preconceived intention to pass it off as that of ^^ signed by ^ another of another person of the same name (2). sa,me name. Further, it is forgery to obtain the signature of a deed Obtaining , . « 1 . , 1^1 notaries to by notaries and witnesses as for a third party by false sign as for a representations. Here, though it is the notaries and fo^Xiod witnesses who innocently sign, still the persons who obtain the signature are guilty of forgery, as they obtain that which is not in fact the deed of the party for whom the notaries sign, and use it as his deed (3). And on the Notaries same principle, it is forgery if notaries, for purposes of another with- their own, sign a deed for another on the false narrative °"' "'^'^'i^'^- that they were authorised to sign for him (4). Or if a no- Forging names tary draw a deed relating a seisin of lands which he never ^ eJtuious gave, and himself append imaginary names to it as wit- ^^'i^''^- nesses, this is forgery (5). In the same way it is forgery Messenger if a messenger, having drawn up a false execution, writes turf'of^wUness the name of a witness, or pretended witness, at the *° execution. bottom of it (6) ; or if a person, having a reason to antedate a deed, complete it by writing in names of pretended wit- nesses (7). Indeed, it can scarcely be doubted that the 1 Jas. Hall and others, H.C., tified to the High Court, but was July 25th 1849 ; J. Shaw 254. not proceeded with by the Crown. 2 Jas. Hendry, Aberdeen, April The following entry occurs in Lord 1839; Bell's Notes 49. Ivory's MSS.:— "We thought it 3 Hume i. 143, 144,and cases of Do- " right to certify, without indicating naldson: and Watson there. — Alison " any opinion." The novelty of the i. 878. — Jas. Dougherty and others, point seems, therefore, to have been •Glasgow, May 3d 1844 ; 2 Broun 159. the ground of certification, not any 4 Hume i. 143, and case of Stra- doubt of the relevancy. Chan and Hunter there.— Alison i. 5 Hume i. 146. — Alison i. 380, 377, 378. — An indictment charg- 381. ing a notary with the crime of 6 "Will. Brown, H.O., Deo. 4th forgery by signing and uttering n 1839 ; 2 Swin. 478 and Bell's Notes document in the circumstances 61. above described, was raised some 7 Hume i. 145, 146. — Alison i. years ago. (Will. Galloway, Perth, 381. — In the case of Simon Fraser, April 23d 1867 ; Indictment Adv. H.C., Nov. 21st and Dec. 5th 1859 ; Lib. Coll.) The case was cer- 3 Irv. 467 and 32 So. Jur. 148 ; the 96 FALSEHOOD. FOEGERT. Adhibiting false signa- tures of instrumentary witnesses. Adhibiting fictitious sub- scription. Forging sub- scription of person dead. Forgery by initials or mark. mere adhibiting of false signatures of witnesses to a document, otherwise a truthful and unexceptionable deed, is forgery, whether this be done by the granter of the deed, or by any one else who wishes to use it. For the using of that deed as a vaM deed is fraudulent, and it is injurious that a deed should be passed off as binding, which, if the truth were known, would be held null and void (1). It follows from what has been already said, that it is forgery to put a false name to a deed, though the signa- ture is not that of any known person, but is entirely fictitious (2). And the same rule applies, in the case of the person whose signature is forged being dead at the time of the forgery (3). "Where the forgery is of a subscription, it need not be a complete signature, but may be of a signature by initials only (4), or even by mark, and it is imma- terial whether the person's usual mode of signature was in either of these ways or not (5). It has not yet been expressly decided whether the mere making of the mark Lord Justice Clerk Inglis observed : *' — Where therefore the Act makes " legal subscription necessary, and " where that subscription is charged " as beingforged, and as having been " forged by the panel, and uttered by " him, I can conceiVe nothing an- " swering better to the crime of " forgery." 1 Hume i. 145. — Alison i. 381. — Michael Steadman, H.O., Feb. 27th 1854; 1 Irv. 369 (Lord Cockbum's opinion). — Simon Fraser, H.O., Dec 5th 1859 ; 3 Irv. 467 and 32 Sc. Jur. 14S (Lord Justice Clerk's opinion as quoted supray 2 Hume i. 142, and case of For- rester in note 2. — ^i. 143. — The point seems to have been undecided when Baron Hume wrote. — Alison i. 374, 375.— More ii. 390.— Jas. Hall and others, H.C., July 25th 1849; J. Slutw254 (Lord Justice Clerk Hope's charge). — The other cases in the books illustrative of this point are too numerous for quotation. In the case of Andrew Ovens, H.C., Nov. 24th 1828, the Lord Justice Clerk Boyle, in pronouncing sentence, said, "that it ought to be known "that if persons put fictitious " names of fictitious individuals or "firms on bills and passed them, "they were guilty of forgery." Lord Wood's MSS. 3 Jas. Aitchison, July- 1st 1833; Bell's Notes 66. 4 Ales. Humphreys or Alex- ander, H.C., April 29th 1839 ; Bell's Notes 50. 6 Duncan Cattanach, H.O., May 27th 1840; 2 Swin. 505 and Bell's Notes 61. — Archibald M'Millan, H.C., Jan. 24th 1859 ; 3 Irv. 317 and 31 So. Jur. 175. FALSEHOOD. 97 is sufficient. In the cases that have occurred, the accu- Fokgery. sed has always been charged with also writing the words round the mark. But these words are part of the hody of the deed, and there seems no reason why the addition of the false mark to the deed should not be held sufficient- Suppose, for example, a John Brown, who cannot write, has got a document written out for him, including the words " John Brown, his mark," and has put the docu- ment aside without placing his mark upon it, either from having changed his mind, or from there being some reason for delay in issuing it after it was written out. It can hardly be doubted that if any one were to get posses- sion of this document, and to fiU in the mark, and use the writing, that he would be guilty of forgery. Accord- ingly, in one case, the adhibiting of the mark alone seems to have been charged as forgery, and the writing of. the words round it only stated as part of the narrative of the res gestce (1). Forgery may be committed by a false use of a genu- Artificially ine signature. It is forgery to cut off a genuine signature genuine^ * from one deed, and after affixing it to another, to attempt dS'"™ '° * to pass the second deed off as genuine ; also, to write Writing above on the blank space above a genuine subscription without ignatme. the authority of the person whose signature it is, and then to pass off the paper as his deed (2). But it is '0^}«bb the ^ , ^ ^ . "■ ' writing be not forgery m such a case to write what the person what sub- who signed intended or understood was to be written, stood was to^be even though what is written be falsehood (3). Nor is it '^^''itten. forgery to fill up a document such as a bill-stamp signed ea up signed blank, for there is implied in the stamp a sufficient ''•^^'^"P- mandate to fill it up with such a sum as the particular stamp wlU cover (4). 1 Eob. Gillies, H.C, May 23d ii. 300.— Bob. Brown, Ayr, Sept. 1831 ; Bell's Notes 50. 1833 ; Bell's Notes 51. 2 Hume i. 145, and case of Halli- 3 Simon Fraser, H.C, Nov. 21st day and others there (and in Ap- and Dec. 5th 1859 ; 3 Irv. 467 and pendiz vol. ii. 522), and cases of 32 Sc. Jur. 148. Forbes in note a and Biniiing in 4 Alison i. 379, 380. note 2 ^Alison i. 379, 380.— More 98 FALSEHOOD. Forgery. Minor forgeries sometimes prosecuted as falsehood fraud and wilful imposi- tion. Minor false- hoods BY "WRIT. False official documents. Seisins. Executions. Certificates of banns or marriage. Ante -dating deed. Before passing to tlie consideration of those offences connected with false writings, which do not strictly fall under the head of Forgery, it may he mentioned that it is quite common to prosecute cases in which false writs, which are truly forgeries, are made and used, under the lower denominations of falsehood and fraud. This is done in cases where the character of the fraud attempted by the use of the forgery is not of great hein- ousness. II. Those criminal falsehoods by the use of writ, which are not considered of so heinous a character as forgeries, must now be briefly mentioned. The first case to be noticed is that of persons acting in an official capacity, who draw up and sign and issue documents narrating falsehood. To this class belong such cases as the making of false seisins by notaries (1), or the return by messen- gers of executions setting forth proceedings which never took place (2), or the signing of executions as witnesses by persons who were not present (3), or the issuing of false certificates of marriages by clergymen, or of banns by session-clerks, or the like (4). Although, in such cases, where there is no false signature, the crime of forgery has not been committed, the documents being in a strict sense genuine, still the use of them is criminal in a high degree (5). Besides these cases, there are many other instances of documents which are false, and which it is held criminal to use, though they cannot, strictly speaking, be described as forgeries. For example, to antedate a deed for a fraud- ulent purpose is a criminal offence (6). Again, it is 1 Hume i. 158, 159, referring to 1540, c. 80, and to the cases of Innes: Cook: Norval: and Mos- crop. 2 Hume i. 158, and case of Stra- chan there. 3 Hume i. 160. 4 Hume i. 162, and cases of Bobertson and Pearson : and Craig in note 1. — See also David Gibson, H.C., May 18th 1848; Ark. 489. (Indictment) 5 Simon Fraser, H.C., Nov. 21sl and Dec. 5th 1859; 3 Irv. 467 and 32 So. Jur. 148. 6 Hume i. 160, 161. and cases of Belsches: and Mathie there. FALSEHOOD. 99 a crime to serve a pretended copy of a summons, there minok palsk- being no such summons in existence (1) ; or to use ^°^°^ ^^ fabricated letters, certificates, or the like, though not pretendedcop y signed, being written in the third person, e.g., "Mr of summons. " Brown begs to recommend the bearer as a deserving iifthTthlS"™ " object of charity," (2) ; or to pass off fictitious bank-notes, p*"'^™- even although there be no actual signature upon them (3). It is necessary in the next place to consider, in refer- Utterino. ence to both classes of false writings which have been spoken of, what are the rules of law as to the uttering of such writings. Por, as has been already mentioned, it is essential to the completion of the crime of falsehood by writ, (except in certain statutory cases,*) that the false writing be feloniously used as genuine (4). In practice the forgery or falsehood and the uttering are charged separately in the indictment, but this is only to provide for the case of the uttering alone being proved (5) ; felon- uttering alone ious uttering being of itself sufficient to constitute guilt, '^ * ''"™^- even though the origin of the forgery be unknown (6). The uttering is complete by any attempt to use the -*^°r attempt to , ,1 "f.!, .,. "se document document, however unsuccessiul, or however soon it is is uttering. withdrawn on challenge (7). Of course, merelv giving it P^* giving it *^ ^ ' ^ ./ o o for preserva- to another for preservation, or to look at, is not utter- tion is not ing (8). But to offer a cheque for payment, or a bill to ™°"^ ' 1 John Smith, H.C., Deo. 21st 5 Hume i. 149, 150 Whether 1852 ; 1 Irv. 126 and 25 So. Jur. 176. ' this praotioe is strictly logical may 2 Hume i. 174, cases of Branan be doubted. and others : and Brown in note 1. 6 Hume i. 155, 156, and case of — ^Ahson i. 366, 367, and case of M'Haffee there, and oases of M'- Hill there.— Bob. Barclay, Nov. 8th Ouillin: Bell: M'Neil and O'Neil: 1833 ; Bell's Notes 49. Hughan: "Wood or Woods: M'- 3 Alex. Lindsay and Rob. Dougal : Macneil and Mackay : and Struthers, H.O., Nov. 19th 1838 ; 2 Wilson or Moore in note 2.— Ali- Swin. 198 and Bell's Notes 64. son i. 398. 4 Hume i. 148, and case of Bam- 7 Act 1621, o. 22.— Hume i. 153, say and Boy in note 3. — i. 154. — Ali- 154, and cases of Mitchell: Sloan: son i. 401, 402, and cases of Ander- and Heck or Affleck in note 1. — son : and Devlin there. — Geo. S. Alison i. 402, 403. Edwards, Aberdeen, Nov. 19th 1827 ; 8 See the case of John Eeid, Sept. Shaw 194. 23d 1841; Bell's Notes 68, where a • Vide 99. 100 FALSEHOOD. Uttering. Presenting cheque. Posting writ. Registration. Uttering blank bill stamp with forged signa- ture to be discounted. Deed placed in another's re- positories and allowed to be used after his death. Producing forgery in judicial pro- cess. Case of forger employing in- nocent person to utter. be discounted, either personally or by another hand, com- pletes the crinie (1). It is also complete if the writing be dispatched by post (2). And the same holds if a docu- ment be registered for diligence, or in any case where registration is required by law to give effect to the deed. It has not yet been decided whether registration for pre- servation is sufficient to constitute uttering (3). It is completed uttering to deliver a blank bill stamp with forged signatures upon it, in order that the person to whom it is delivered may fill up and discount the bill, or keep it as a security (4). But it has not been decided whether the crime is complete if it be merely handed to another to be written out (5) ; and it is difficult to see how this alone could be held to amount to the crime of uttering. Further, the uttering is complete if a false writ be placed in another's repositories, and after his decease the person who placed it there allow it to be used as a genuine deed (6). And on the same principle the crime is com- plete if a false writ be produced in a judicial process, whether this be done by the party interested, or by any one instructed by him (7). It is very c9mmon for the guilty party to employ an innocent hand to complete the uttering, as by sending another person to a bank to person having forged another's name as joint acceptor on a bill-stamp, handed it to a third party, only in order that he might sign as drawer- and endorser, and where thgjndict- ment was withdrawn, and a new one served, in which this proceeding was only set forth as part of the narrative- — See also John Allan, Perth, April Ifith 1834; 6 Sc. Jur. 321. 1 John Eeid, H.C., Jan. 8th 1842 ; 1 Broun 21 and Bell's Notes 57. 2 Will. Harvey, E.G., Feb. 22d 1835; 13 Shaw's Session Cases 1170 and Bell's Notes 57.— Will. Jeffrey, H.O., May 16th 1842 ; 1 Broun 337. 3 Hume i. 154.— Alison i. 403.— More li. 390. 4 Michael Steedman, H.C., Feb. 27th 1854 ; 1 Irv. 369.^rohn Potter, Stirling, April 11th 1854; 1 Irv. 458. — Jas. Alexander, Inverness, Sept. 26th 1865 (unreported). 6 Case of Steedman supra, 6 Jas. Shepherd, Perth, April 26th 1842 ; 1 Broun 325 and Bell's Notes 58. 7 Francis Adams, H.O., Sept. 1st 1820; Shaw21.— Jas.Bonella, H.O., Feb. 13th 1843 ; 1 Broun 517 and Bell's Notes 59. FALSEHOOD. 101 cash a forged cheque, or to a shop to change a false note. tTTTEBma. In all the cases that have occurred, the purpose has been carried out by the document being presented by the in- nocent agent, and accordingly the presentation has been set forth as part of the narrative of the uttering (1). But should the case arise of the innocent person in pos- Question session of the false writ, being stopped before he has completed actually presented it, or having suspicions of its hSid6d°tol^ nature, himself handing it over to the authorities, there nooent person, seems little reason to doubt that the giving of the forgery to the innocent person would be held of itself a sufficient uttering (2). Whether the mere giving of the false writ Giving forgery to an agent in order that it may be produced in a judicial produced in » proceeding be enough, is a more difficult question, and it i^^<^'^ P™- would appear must be answered in the negative (3) ; upon the principle that an agent is held in law to be the party himself, and that therefore until he proceeds to act upon the instructions of his employer, there is no complete act of uttering. On this principle, it may be held that posting a letter containing a false writ to an agent, does not fall within the ordinary rule that 1 Jas. Aitchison, Jan. 26th 1835 ; by Mr. Bell (case of Bell and Morti- Bea's Notes 57. mer, H.C., July 21st and 22nd 1800 ; 2 Mr. Bell, in his notes, p. 57, Burnett 188, 189, and Appendix yiii. quotes a case— Bob. Meldrum and and Hume i. 150 note 1). But the Catherine Eeid, May 8th 1838 — as opinions of the judges in that case, tending to show that a forger may in so far as they hold that giving a utter to an accomplice who is in forgery to an accomplice could the knowledge of the deed being constitute uttering, were overruled forged. But this is plainly inoor- by the case of Home. rect. Criminal uttering of a forgery 3 Francis Adams, Sept. 1st 1820 ; is uttering as ^cTCKtrae, which is quite Shaw 21. — Alex. Baillie, March inapplicable in the case of an ao- 14th 1825 ; Shaw 131. — Geo. Wilson complice. See John Home, H.O., junr., Aberdeen, May 1st 1861 ; 4 July 15th 1814 ; Humei. 150 note 1, Irv. 42.— Alison i. 403, 404 contra. where it was decided that vending Sir Archibald Alison's statement of , forged notes to an accomplice at an the cases of Adams and Baillie is under value was not uttering. It not quite borne out by the reports is true that in an early case some as given by Hume and Shaw. He views appear to have been expressed also erroneously states the case of in accordance with that maintained Baillie to be unreported. J 02 FALSEHOOD rTTERiiro. uttering is completed by the act of depositing the letter in the post box. But this point has not been decided. Document In every case of uttering there must be a putting of mustbeputout ^. . „ , r „ , -, t , titi of possession, the Writ out of the possession of the delinqueut. Where a person produced a bill to hand it to another, and it fell to the ground, and before it could be taken up the accused was apprehended, the uttering was held incom- plete (1). And the uttering must of course be with a ttCTpe?"oiwho fraudulent intent (2.) A very nice question appears to had authority have been raised in one case (3), viz., whether a person feloniously Can feloniously utter as genuine a document to which he u^tter as genu- jj^g attached another person's signature, but with that person's authority : that is to say, whether, although authority has been given to sign, the uttering is never- theless the uttering of a forgery, where there is an inten- tion to mislead the person to whom the document is uttered, and to induce him to receive it as truly having the genuine signature of the mandant upon it. Lord Cockburn's MSS. contain the following note : — " But if " the jury believe that both (4) gave authority, was it a " criminal uttering quoad the Bank, which relied on the " names being genuine. I told the jury that if they be- " lieved that the prisoner had mistaken his rights and " his duty, and said nothing to the Bank innocently, " then they could not convict ; but that if they thought " that he was consciously misleading the Bank, then his " having signed their names by their permission, was no " defence." Although there must be a fraudulent intent, it is not necessary that the uttering should have the immediate effect of injuring another. Thus, uttering by posting a 1 Alison i. 402, case of Devlin 3 David Boss, Inverness, April"" there. 18th 1844 ; (Lord Cockburn's MSS.) 2 Will. "Waiters, Inverness, Sept. 4 There were two persons who 23d 1836; 1 Swin. 273 and Bell's were said to have given authority Notes 58. to sign. FALSEHOOD. 103 letter containing a false writ, is held complete, even Uttering. though the letter never reach the hand for which it was Posting letter intended (1). It might, however, be a relevant defence forgery!"^ in such a case, that the sending of the document was merely for preservation, and not that it might be used, but the burden of proof would be on the accused. Lastly, it is not necessary that the writing should be uttered for such a purpose as that for which a document such as it purports to be, is ordinarily used. In the case already noticed, where a person produced a forged diploma, to escape a charge of perjury for having sworn that he pos- sessed such a document, the objection that this use of the writing was not germane to the plain intent of the instrument, and that therefore, though it might be cheat- ing, it was not the uttering of a forgery, was repel- led (2). And on the same principle, where a bill bear- ing a forged signature was uttered by the accused, only for the purpose of its being made use of to enable a creditor to concur with the accused in applying for sequestration, such an uttering was held sufficient (3). III. Besides those criminal falsehoods which consist Fraud and in the direct use of false writs, there are numberless cases of fraud and cheating which fall under the general names of Falsehood and Fraud, or of Falsehood, Fraud, and Wilful Imposition. A short epitome of the cases mentioned in the books will afiford the best commentary on this branch of criminal law. Pretendingtohaveanofficialcharacteriscriminal. One Pretending to of the most serious offences of this sort is pretending to character.'* be a notary, and issuing false notarial instruments (4). 1 WiU. Hervey, H.C., Feb. 22d 2 Jas. Myles, H.C., Jan. 7th 1848 ; 1835 ; 13 Shaw's Session Gases 1170 Ark. 400. and Bell's Notes 57.— WiU. Jeffrey, 3 Jas. Bonella, H.O., Feb. 13th H.C., May 16th 1842 ; 1 Bronn 337 1843 ; 1 Broun 517 and Bell's and Bell's Notes 57. — Daniel Taylor, Notes 59. H.C., May 16th 1853 ; 1 Irv. 230 4 Hume i. 159 and case of Mar- aud 25 Sc. Jur. 403 (Lord Cook- joribauks there. bum's opinion). 104 FRAUD. Feaud and cheating. Personating another. AsBuming a character, or pretending to be in a ceiiain position. Convictions have taken place for the offences of pre- tending to be a clergyman (1), or exciseman (2), or tax-gatherer (3), or sheriff-officer (4). There is also one case of a conviction for pretending to act as a sheriff- oflEicer, obtained against "a person who had held that office but was under suspension (5). It is criminal to personate another for any purpose of advantage. Cases of this sort are very numerous, e.g., personating another before a court of justice (6) ; or per- sonating a known tradesman for the purpose of getting possession of goods (7) ; or personating the owner of goods in order to get delivery from the individual who has charge of them (8). It is criminal for a purpose of advantage to assume a character, though not strictly official, or that of a known person : e.g., to pretend to be a collector for a public office or charity (9) ; or to pretend to be the agent, or house- keeper, or servant of a person in order to get goods (10) ; or to pretend to be the messenger of the owner of goods in order to get possession from the custodier (11) ; or to pretend to be a farmer in order to deceive into the belief that horses offered for sale are sound (12) ; or to pretend 1 Hume i. 172 and case of Craig- head there. 2 Hume i. 172 and case of Eeid in note 2. — Alison i. 363. 3 Will. Oruickshank, Perth, Nov. 30th 1829; Shaw 227 and BeU's Notes 17. 4 Donald Maclnnes and Malcolm Macpherson, Inverness, April 25th 1836; ISwin. 198. 5 Eob. Millar, H.C., Mar. 15th 1843 ; 1 Broun 529 and BeU's Notes 65. 6 John Bae and Andrew Little, Ayr, Sept. 10th 1845 ; 2 Broun 476. 7 Hume i. 176 and case of Clerk here. 8 Sam. Michael, H.C., Dec. 26th 1842 ; 1 Broun 472 and BeU's Notes 8. —Henry Hardinge and Lucinda Edgar or Hardinge, H.C., Mar. 2d 1863 ; 4 Irv. 347 and 35 Sc. Jur. 303. 9 WiU. Cruikshank, Nov. 30th 1829 ; Shaw 227 and BeU's Notes 17. 10 Hume i. 174, case of Hamilton in note 1. — Burnett 170, case of Eraser there. — Alison i. 364, 365, case of Scott there. — Geo. Walker, Jedburgh, April 1839 ; BeU's Notes 64. 11 Hume i. 174, case of Harvey in note 1. — Alison i. 364. — Henry Hardinge and Lucinda Edgar or Hardinge, H.G., March 2nd 1863; 4 Irv. 347 and 35 Sc. Jur. 303. (Note, this was held to be relevantly charged as theft.) 12 Hood V. Young, H.C., June 10th 1853 ; 1 Irv. 236 and 25 Sc. Jur. 446. FRAUD. 105 to be a pensioner, in order to obtain payment of a pen- Fraud and sion (1)— or to get credit (2) ; or to pass ones-self off as °."'°^'"''°-— a person of means and position, so as to get credit or advances (3) — or as a person of influence, so as to obtain money on pretence of getting a situation for another (4) ; or to pretend to be a person appointed by an education society to inspect scbools, and so obtain board and lodging, loans, &c. (5) ; or to pretend to be a friend of a person's relations abroad, in order to obtain money on the pretext of having brought presents from them, the freight of which had to be paid (6). Telling false stories to excite compassion is a very Telling false- common mode of cheating (7). Crimes of this sort JH comp^aa- may also be committed by imposing on the simple, as ^'°"- by obtaining money under pretence of telling fortunes. Fortune tell- er teaching how to make money, or recover lost property *"s- by enchantments, or by similar deceptions (8). Cardsharp- oardsharping. ing also has been held to fall under this denomination, in a case where several confederates acted as if they did not know each other, and got money from a person in a railway carriage, by one of them pretending to have lost money to the other, and begging a loan to enable him to recover his losses (9). Cases have also occurred Denying ap- of apprentices obtaining bounty when enlisting, on the ^^rf Tunt*° 1 Hume i. 172, case of Beaton 6 Hume i. 174, case of Campbell and Macdonald in note 2. — i. 174, in note 1. — Alison i. 365. case of Grillies in note 1. 6 Hume i. 172, case oi Graham 2 Eob. Meldrum and Catherine there. Beid, H.C., May 8th 1838 ; 2 Swin. 7 Hume i. 174, case of Eickaly 117 and Bell's Notes 64. in note 1. — Alison i. 365. 3 Hume i. 174, case of Kirby 8 Burnett 173, case of Warren in note 1. — ^i. 173, case of Hall there. — Hume i. 174, case of Hut- there. — ^Alison i. 363, 364. — Thos. chison or Arrol in note 1. — Alison E.M'Gregor, and Geo. Inglis, H.C., i. 363, 364.— See also 9 George ii. March 16th 1846 ; Ark. 49.— Adolf c. 5. Kronaoher,H.O., June 21st 1852; 1 9 Will. Clark and others, Irv. 62. Aberdeen, May 3rd 1859 ; 3 Irv. 4 Hume i. 174, case of Douglas in 409. note 1. — Alison i. 364. 106 FRAUD. Fkaud and cheating. Swearing falsely to freedom from disease to ob- tain bounty. Obtaining another's letter. Overcharging postage. Cases in which there is no uttered false- hood. Obtaining goods with in- tention not to pay- Supplying a different and highly adulter- ated article in- stead of that contracted for. false statement that they were not apprentices (1), and of men labouring under disqualifying diseases falsely swearing they were free from disease in order to get them- selves enlisted, and obtain bounty (2). Many other cases of fraudulent proceedings have occurred in practice, where there was no assumption of a false character, such as a person obtaining a letter addressed to another on the pretence that he would de- liver it, and opening the letter (3) ; charging more than the proper postage on letters, and appropriating the overcharge (4) ; and falsely accusing another to the au- thorities as guilty of a crime (5). The above may suf&ce as illustrations of the cases of this class, which depend on false representations directly made. But there are many others in which there is no spoken or written falsehood. Thus it is falsehood, fraud, and wilful imposition to obtain goods or credit for board and lodging, with the preconceived intention not to pay for them, even though no false inducement have been held out (6). The imposition also often consists in pass- ing off as genuine an article which is not so. If a per- son undertake to supply an article according to sample, or an article which has been inspected and ordered, and intentionally send a substance which is not the thing con- 1 Hum&i. 174, case of Munro & Macfarlane in note 1. — Alison i. 364. 2 Hume i. 174, case of Kinnaird in note 1. — Alison i. 364. 3 Hume i. 174, case of Borland in note 1. — Alison i. 367, 368, and case of Morrison there. 4 Hume i. 174, case of M'Nab in note 1. — See also John Reeves, Glasgow, Sept. 22nd 1843 ; 1 Broun 612, where a post office servant altered the addresses of letters by substituting " via Falmouth " for " per Overland Mail," and appro- priated the difference between the postages. 6 Elliot Millar, Jedburgh, Sept. 17th 1847 : Ark. 355. This offence, as being of the nature of a personal injury, is noticed specially, vide 203. 6 Jas. Smith, Aberdeen, April 18th 1839 ; 2 Swin. 346 and Bell's Notes 64. — Jas. and Bob. M'Intosh H.C., January 29th 1840 ; 2 Swin! 511 and Bell's Notes 65. — John Harkins or Harkisson, Glasgow, Sept. 22nd 1842 ; 1 Broun 420.— Jas. Hall and others, H.C., July 25th 1849; J. Shaw 264.— Adolf Kronacher, H.O., June 2lst 1852 ; 1 Irv. 62.— Alison i. 362 cordra. FRAUD. 107 tracted for at all, or which, though containing some Featidand proportion of the article ordered, is an adulterated " — mixture, he is guilty of falsehood, fraud, and wilful im- position (1). Nor is such conduct criminal when applied to buying and selling only. It has heen found a piadng false relevant charge that the accused got prizes awarded to ^°™^ °" him at a cattle show, by inflating the skins of cattle, and affixing false horns to them (2). And where a person Raising ficti- tried to prevent the enforcement of a judicial decree for ^"ns.^"""' payment, by raising a summons in a fictitious name, and on a false narrative, against the person holding the decree, and procuring the arrestment of the sum due under the decree in his own hands, he was held properly charged with falsehood and fraud (3). Any wilful vitiation of an already existing and genuine vitiation of deed in any essential part, to the prejudice of the interests ^^ ' of others, though not held to be so serious a, crime as where the corpus of the deed or the signature is fabricated, is still a highly criminal offence (4). The principle of this is obvious. If an obligation by John Brown for ^£"20 is 1 Hume i, 173, case of Macfarlane opinion). But it is important to keep there. — Alex. Bannatyne, Glas- in view the true distinction wliichex- gow, Sept. 29th 1847 ; Ark. 361. ists between such cases and the case 2 Jas. Paton, Ayr, Sept. 22nd of forgery orfabricationoffalse writs. 1858 ; 3 Irv. 208. Where a person commits fabrication 3 Geo. Kippen, H.O., "Nov. 6th or forgery, that is per se no offence. 1849 ; J. Shaw 276. It is wholly his own and within 4 Hume i. 160, 161, and cases of his own power, and it is only when Aitken : and Dunbar ; and Leatch he utters it that he is guilty of an there. — ^i. 160, case of Lindsay and indictable crime. But in the case others in note 2. — ^i. 161 , case of Fal- of vitiation of an existing document, coner in note 1. — Simon Fraser, no uttering is necessary. The wil- H.C., Nov. 21st and Deo. 5th 1857 ; ful vitiation is of itself an overt act 3 Irv. 467 and 32 So. Jur. 148, of fraud. The operation is per- (Lord Justice General M'Neil's and formed upon a thing already practi- Lord Neaves' opinions). SirArohi- cally existing, and for a fraudulent bald Alison (i. 384,) incorrectly purpose. Thereianolocus ptsmtentim states this as falling properly under as in the case of a fabrication or a the denomination of forgery. It forgery, where practically as regards would appear that such offences all other persons, the fabrication or have been prosecuted as forgery. See forgery has no existence till it is Simon Fraser, supra, (Lord Deas' uttered. 108 FRAUD. Feadd and cheating. Filling in test- ing clause with false date. Erasing part of deed. Writer of deed inserting unau- thorised pro- visions. Making false entries in em- ployer's books. Fraudulent de- struction or mutilation of documents. changed into one lor d£'200 by the addition of an 0, or the date 1850 altered to 1859 by adding a stroke, that which was reaUy signed by John Brown becomes a document which he never signed. He did not sign an obligation for =£'200, nor did he sign such a deed in 1859, and therefore the deed is^, made to set forth a falsehood. There are other ways in which a deed may be crimi- nally vitiated. It is' a crime to fill in a testing clause with a false date (1). And the same holds of erasing a material portion of a deed. To scratch out or wash out by acid, an in a receipt for ■£'200, so as to make it a receipt for =£"20, or the tail of a 9 to make it 0, is criminal. It is also a crime if the writer of a deed secretly iiasert unauthorised provisions with a fraudulent intention (2). And of a similas nature is the offence of making false entries in an employer's books to conceal defalcations, although this is generally considered to fall under another head,* the appropriation of the money being the principal offence, and the false entries only treated as a mode of concealment (3). Wilful destruction of documents, whether valuable in themselves or valuable as evidence, or in any other way (4), and mutilation of business books by cutting out leaves (5), or in any similar manner, if done to suppress evidence, or for any other fraudulent purpose, are crimes. There are numerous cases of trials for offences of this sort, though few of them are reported. Of course if the documents are the property of the accused, the destruction or mutilation will not be criminal, except as forming part 1 Duncan Stalker and Thos. John Eeid and David Eeid, Inver- W. Cuthbert, H.O., Jan. 22d 1844; 2 Broun 70. 2 Hume i. 160. 3 Thos. Gray, Nov. 8th 1827 ; Syme 264. 4 Alison i. 631, and case of Murray there. — Walter Murray and Margaret Scott; Bell's Notes 66 ness, Sept. 18th 1835 ; Bell's Notes 66. — Jas. Dunipace, Glasgow, Dec. 28th and 30th 1842 ; 1 Broun S06 and Bell's Notes 48. — John Eattray and others, H.O., Jan. 31st 1848 ; Ark. 406. 6 Geo. Malcolm, Glasgow, Sept. 25th 1843; 1 Broun 620. Vide 78. FRAUD. 109 of some otherwise criminally fraudulent scheme or pro- Tkato and ceeding ; but where some one else has a right or substan- ™"'^"''°' tial interest in the documents, or where they form part of a legal process or the like, the mere act of destruction or mutilation is crimiaal, if there be the necessary intent to defeat other interests, whether those of an individual or of public justice (1). The use of false weights and measures also falls within r^ise weights the class of offences now under consideration. To make ■""* measures. a charge of this sort sufficient three things are requisite. First, there must be a substantial difference between the weight or measure which is impugned, and the standard it professes to represent. Second, the false weight or measure must have been used as true in the knowledge of its defect. (This will be presumed against the user). Third, except in the case of extensive frauds having other ele- ments of criminality, the deviation must be from a legal standard, not from a weight or measure that is used by custom contrary to the legal standard (2). In the giving of false weight such acts are included as selling at an under weight loaves of bread or the like, which have a fixed weight prescribed by public authority, (3). Such cases are usually prosecuted summarily and for fines under special statutes. But this does not affect the competency of pro- secuting any outrageous fraud of this sort at common law and for high pains. A very strange case of cheating by weights has occurred in practice, and illustrates how ex- tensive fraud may be committed by such means. Two per- 1 It is to be observed that there terms of which only lead to mis- are many provisions in the Bank carriages in prosecutions, where and Excise and other Statutes in a conviction at common law would reference to offences by vitiation or be certain. — See Hume i. 169, and mutilation or transposing of stamps case of Brown and M'Nab there, and or the like with fraudulent intent. cases of Ferguson : and Hnghan in But prosecutions under them are note 2. quite unknown, as the common law 2 flume i. 177, 178, case of Dun- of Scotland reaches all such oases bar and Forsyth there, without its being necessary to refer 3 Hume i. 178, case of Craig to statutory enactment, the strict there. JIO FRAUD. Fraud akd cheating. Question how far fraud must proceed to com- plete crime. , Attempt to commit fraud irrelevant. But absolute success not essential. False verbal Btatemont must have a result to constitute offence. sons who were entitled to a repayment from the revenue on imported goods on their being again exported, repeatedly obtained access to the custom-house at night, and removed the weights from the custom-house balance at which the goods were to be weighed, substituting lighter ones in their place (1). In cases belonging to the class of falsehood, fraud, and wilful imposition, it depends much on the special circumstances of each, how far the false action must be proceeded in, in order to constitute a crime (2). The mere statement of a falsehood, or commission of a false action, is not necessarily criminal. Thus, "Attempting to " commit fraud " has been held an irrelevant charge (3). On the other hand, it is not by any means necessary that the accused should actually have succeeded in making a practical gain by his fraudulent proceedings. It is extremely difficult to lay down any practical rules upon the subject, particularly as the criminal law treatises give no aid on the matter. Perhaps the divi- sion of the modes of cheating into — Spoken ; Written ; and Practical ; may conduce to clearness. First, where a person makes a verbal statement which is false with a view to obtain some advantage, he cannot be indicted criminally, unless some event has followed, manifesting that his falsehood has practically resulted in the lieges being imposed upon, as by his receiving money, or goods, or documents, as the case may be. With the exception of the case of malicious accusation of a crime,* the verbal statement of falsehood is not of itself enough to constitute a relevant point of dittay. Where it is thought expedient to make such acts criminal in them- selves, as in the case of pretending to make discoveries 1 Hume i. 173, case of Jack and Ewing there. 2 Geo. Kippen, H.C., Nov. 6th 1849; J. Shaw 276 (Lord Mon- crieff's opinion). Vide 203. 3 Jas. Shepherd, Perth, April 26th 1842 ; 1 Broun 325 and Bell's Notes 2.— See also Eob. Gunn, Aberdeen,April23dl832; Bell'sNotes 2, and 5 Deas and Anderson 256. FEAUD. IIJ of lost articles hy sorcery or witchcraft, special statutory Frauds and enactment is necessary. Second, besides the instances already noticed under the Where writ- head of falsehood by writ, in which the mere uttering qulstion^ine of is sufficient to complete the crime, there are many cases eircumstances. in which documents setting forth falsehood are used, and it depends on circumstances whether the fraud is completed by the mere use, or whether something more is necessary. It cannot be doubted that if a fabricated uttering fabn- document, such as a certificate written in the third per- Buffioient,''"^ son (thus : — " Mr. Brown begs to recommend the bearer," &c.) is uttered, that this is a completed crime. The offender has put the fabrication into use (1). And Same holds of even where the writing is genuine, the mere uttering ^S^reitting may be sufficient, as in the cases already noticed of falsehoods. imaginary seisins or executions, or certificates of banns or of marriages, which never took place. On the other hand, if a person merely write and send a genuine pri- agenuinTln- vate document, such as a begging letter, although full ya^ document of falsehoods as to the state of his health or distress in pieted offence his family, or similar matters, this stands in much the suu foUow.^ '^°" same position as a verbal falsehood, and seems not to be indictable, unless a result follows, such as money being despatched to him, or the like, in consequence of the falsehood. Such a letter is not a fabrication. It is a genuine writing, although containing statements which are not true. Third, practical cheating seems to divide itself into two Practical cheat- classes ; first, where an article is made over to others '"^' as being that which it is not, for the purpose of obtain- ing an advantage ; and, second, where- a fraudulent act is done to the defeat, or with a view to the defeat of the rights or privileges of others. The cases already noticed of supplying an adulterated substance (2), and putting 1 Dan. Taylor, H.O., May 16th 2 Alex. Bannatyne, Glasgow, 1853; 1 Irv. 230 and 25 So. Jur. Sept. 29th 1847; Ark. 361. 403. , , 2 FRAUD. fkato and cattle with inflated skins and false horns into a competi- cH EATiNG. tion for prizes (1), are instances of practical cheating of the Crime com- first kind. In both these cases it was objected that Stuie'uttered. til© crime was not completed, because the accused had not actually received payment, but the objection was re- pelled. In the latter case, the fact was that prizes had been awarded to the accused. But it is thought that the guised cattle Crime was completed whenever the cattle were entered '"aa^**'""™' ™ *^^ competition They were handed over to the com- tion whether petition judgcs after an act of fabrication, which made piete whenever them appear to be that which they were not ; and had enteredlud *^® J^<^g6s in examining the cattle discovered the infla- without prizes tioD, Or the falsc horns, they would have been excluded ing war e . ^^.^^^ ^j^^ Competition. The cattle, when they were placed before the judges, were as much the corporeal embodiment of a fraud, as was the adulterated oatmeal in the other case when it was shipped. Both cases par- take of the character of uttering, which is always held complete when the article is placed in another's hands, professing in its own corpus to be that which in reality it is not, for the purpose of obtaining some advantage. Distinctioii be- '^^^ principle may be illustrated by another case some- tweeu the what similar, but where the animals did not themselves that of an un- cmbody the fraud. Certain unsound horses were put up frt^toing *° auction as being the property of William Hood, a put up for sale farmer, with the assertion that he had worked them for account of its a year previously, and that they were sound and good iiistory. workers, and only parted with because the owner was leaving the country. Upon the faith of these assertions, they were knocked down at a certain price. The fact was that Hood was not a farmer, and that the other particulars were untrue (2). Now, here, the fraud could not be said to be completed until the horses were bought There was no fabrication in the animals themselves, but only the assertion of falsehoods about them. The horses 1 Jas. Paton, Ayr, Sept 22d 1858 ; 2 Hood v. Young, H.C., June 10th 3 Xrv. 208. 1 853 ; llrv. 236 and 26 Sc. Jur. 446. FRAUD. 113 themselves were, so to speak, genuine, and those who in- fkaud aJid spected them had no lie presented to them by the °'™^'^™°- animals. Thus if a person had come to the sale, and without any knowledge of the false statements had bought the animals, there could have been no fraud as regarded him, because he bought according to his own judgment, by inspection. But in the case of the inflated cattle, the fraud being embodied in the animal itself, all inspection with a view to forming a correct personal opinion was rendered misleading. The cheat consisted in defying inspection, and endeavouring to prevent the formation of a sound judgment. The second class of offences by practical cheating, in oases of where the intent is to defeat or obstruct the rights or pri- mutilation of vileges of others, embraces all those cases of vitiation or oonceaimentb destruction of deeds, concealment by insolvent persons, msoiventa, the or the like, some of which have been already referred to. the felonious In such cases the overt act of vitiation or destruction of J.°g^j' '^ ™*^' a document already in existence, combined with the in- tent to defraud, constitutes a complete offence, without any subsequent success of the fraud. And so in the case of concealment of effects ; the act of concealing with intent to defraud, by a person who is insolvent, is suffi- cient (1). And where an overt act of this kind is averred to be " for the purpose of obstructing or defeating the '-' course of justice," the same rule holds (2). In con- cluding this chapter, it may be noticed that there are many other frauds or fraudulent acts which, from their peculiar character, or from their being intimately con- nected with offences belonging to other classes, must be treated of separately, and which, to prevent repetition, 1 Eiohard F. Dick and Alex. and Bell's Notes 64 — Duffus v. Lawrie, H.C., July 16th 1832; 4 Whyte, H.C., Jan. 27th 1856; 1 Sc. Sc. Jnr. 594 and 5 Deas and Ander- Law Eep. 124. son 513. — Chas. M'Intyre, Inver- 2 Geo. Kippen, H.O., Nov. 6th neSB, Sept. 14th 1837 ; 1 Swin. 636 1849 ; J. Shaw 276. H 114 FRAUD. Fraud and cheating. Aggkava- TIONS. Punishment of forgery. Punishment of frauds. have not been mentioned; or, if mentioned, have not heen fully treated of in this chapter (1). It is not usual to state any other aggravations in ordinary cases of forgery or fraud, than the aggravation of previous conviction (2). Where there are other criminal offences involved in the act charged, these are generally made part of the substantive charge, and several such cases will be noticed under other heads. It may suffice here to observe, that where there is a previous conviction of forgery, or of falsehood, fraud, and wilful imposition, it is not necessary that it have been a forgery of a precisely similar document, or an act of falsehood, fraud, and wilful imposition of exactly the same kind. A previous conviction of uttering " any forged writing " may be competently used where the charge is one of uttering some writing specially described, such as a bill of exchange (3). In the same way, in a case of falsehood, fraud, and wilful imposition, a previous conviction of falsehood and fraud may be used (4). The punisliment of forgery, in the case of all import- ant documents, such as testamentary writings and the like, is penal servitude (5). Minor forgeries are punished by penal servitude or imprisonment, according to cir- cumstances. The punishment of all other frauds is entirely arbitrary, being penal servitude or imprison- ment. 1 Such offences are fraudulent bankruptcy — fraudulent conceal- ments by insolvents— fire-raising or sinking ships to defraud insurers — falsehood in registrations of births, marriages, and deaths. 2 In the case of falsehood, fraud, and wUful imposition, the question was once raised whether previous conviction was a competent aggra- vation. — John or Alex. Campbell, H.O., June 3rd 1822 ; Shaw 66. 3 Samuel Deans, Sept 1839; Bell's Notes 33. 4 Kob. Gunn, Aberdeen, April 1832 ; Bell's Notes 33.— See also Elizabeth M'Walter or Murray, H.C., Feb. 2nd 1852 ; J. Shaw 552 and 24 So. Jur. 208 and 1 Stuart 359. 6 Act 7 Will. IV. and 1 Vict. o. 84, as amended by 20 and 21 Vict a. 3, and 27 and 28 Vict. c. 47. GERIES OR IHSTEDMENT3. STATUTORY FOEGERIES, &c. ] 1 5 POSSESSION OF BANK NOTE OR STAMP FORGERIES OR INSTRUMENTS. It is impossible in this work to enumerate the cases Possession of in which, by statute, the forging, or making instruments stamp for- for forging bank notes, or excise or post stamps, or the like, or the possession of such instruments or materials, for making them, are criminal, although no forgery be uttered in point of fact. , Baron Hume and Sir Archi- bald Alison, in their treatises on criminal law, have both declared it to be impossible to give any detail of them (1). Those which are of most importance in this country are contained in the Acts 45 Geo. iii. c. 89, relating to Bank of England notes ; 41 Geo. iii. c. 57, relating to Private Bank notes, and the Post Of&ce Acts 7 Will. iv. and 1 Vict. c. 36, and 3 and 4 Vict. c. 96. But prosecutions even for such offences are extremely rare (2). The statutes relating to excise and post stamps and the like, appear in no case to have been made the basis of a prosecution in Scotland (3). VENDING FORGED BANK NOTES. When forged bank notes are vended to a person who vending knows them to be forged, there is, as has already been "'""gbd note-s observed, no uttering in the sense in which that word is applied in the case of forgery. But on the other hand, to At common vend forged notes at a price below their nominal value, '*^" is a crime by the common law of Scotland, and punish- 1 Hume i. 168. — Alison i. 391, 3 There has been one prosecu- 392. tion under the Act 6 and 7 Will. IV. 2 The latest case is that of Arch. o. 69, relating to the assaying of Miller and Susan Brown or Miller, plate. — John Anderson, H.C., Bee. HO., Jan. 3d 1860; J. Shaw 288, Uth 1846 and Jan. 11th 1847; Ark. (Indictment). 187 and 220. 116 Vending kokged notes. By statute. BANKRUPTCY FRAUDS. able by penal servitude or imprisonment (1). As re- gards Bank of England notes, such vending is made by statute to be punishable by penal servitude for life, or not less than seven years, or by imprisonment for four, or not less than two years (2). BANKRUPTCY FRAUDS. Banketjptcy FEAODS. Distinction be- tween fraud- ulent bank- ruptcy and other frauds by insolvents not very clear. Alienating or secreting property in contenlplation of bankruptcy. Though frauds of this kind are divided into two classes — I. Fraudulent bankruptcy ; and II. Fraudulent acts by persons insolvent or on the eve of bankruptcy, the distinction between the classes is not very clearly defined. But • generally speaking, the nomen juris " fraudulent bankruptcy,'' is applicable to those cases where a person obtains sequestration by fraudulent means, or, having committed fraudulent acts in contemplation of bankruptcy, continues them down to the date of sequestration (3). The other class includes all fraud- ulent acts committed only in contemplation of bank- ruptcy, or acts committed after bankruptcy. If a person, on the eve or in contemplation of bank- ruptcy, with intent to defraud his creditors, alienates property to particular or pretended creditors or rela- tives (4), or secretes property to prevent his creditors from getting the benefit of it (5), or disposes of property 1 Hume i. 150 ; case of Home in note 1. — Alison i. 406^407 and cases of Hendrie: and M'Millan there. —Will. Cooke, Jan. 7th 1833; BeU's Notes 58. 2 Act45Geo.III.c 89, asamended by 2 and 3 Will. IV. o. 128, and by 7 WiU. IV. and 1 Vict c. 84, and by the Penal Servitude Acts 20 and 21 Vict. u. 3, and 27 and 28 Vict, c. 47. 3 See Chas. M'Intyre, Inverness, Sept. 14th 1837 ; 1 Swin. 536. 4 Hume i. 509.— Alison i. 571.— Will. M'Laren, H.C., May 23d 1836 ; 1 Swin. 219 (Indictment). 5 Alison i. 570, 571.— Richard P. Dick and Alex. Lawrie, H.C., July 16th 1832; 4 Sc. Jur. 694 and 5 Deas and Anderson 513. — John O'Eeilly, H.O., July 14th 1836 ; 1 Swin. 256 (Indictment).— Chas- M'- Intyre, Inverness, Sept. 14th 1837 ; 1 Swin. 536 (Indictment). Kote. — These cases are selected as illustra- tions only. FALSEHOOD IN REGISTERING BIRTHS, ETC. 117 by a fictitious sale (1), or by a pretended payment (2), Eankkuptcy or in any similar manner, he may be prosecuted crimi- nally. And the same holds, if a person whose estate is ^fj^e^n ^^"^^"^ solvent, secretes his property, and fraudulently takes out property, and sequestration on pretence that he cannot satisfy his sequestration. creditors (3). Any alienation or putting away of pro- Pitting away ... ,^1 or escaping perty (4) or attempt to escape from the country with property with property (5) after bankruptcy, is also criminal. l\!^laj^^^' The punishment in cases of fraudulent bankruptcy, or Punishment. concealment or alienation of property by insolvents, is either penal servitude or imprisonment according to the particular circumstances of each case. , FALSEHOOD IN EEGISTEEING BIETHS, MAKRIAGES, AND DEATHS. This statutory offence (6) consists in knowingly and False state- wilfully making or causing to be made any false or fie- kegisteeing titious entry for insertion in the Eegister, or any false b'^ths, etc. statement in reference to the names or other particulars required to be registered. The cases which occur in practice are generally false registrations of children as legitimate (7), or as being the issue of a person who is not truly the parent (8), and fictitious entries of marriages or deaths which never took place (9). It has 1 Bob. Moir and Jolin Moir, Noble and Morrison there. H.C., Dec. 5th 1842 ; 1 Broun 448 6 Act 17 and 18 Vict. c. 80 § 60. (Indictment). 7 Alex. W. Askew, H.C., Nov. 2 Will. Maclaren, H.C., May 23d 7th 1856; 2 Irv. 491 (Indict- 1836; 1 Swin. 219 (Indictment). ment). 3 John O'Reilly, H.O., July 14th 8 David Greig, H.C., Jan. 14th 1836; 1 Swin. 256 (Indictment). 1856 ; 2 Irv, 357 (Indictment). 4 Alison i. 571, and case of Carter 9 Mary Campbell, Perth, Sept. there, — Jas. Henderson, Perth, Sept. 1857 (Indictment), Adv. Lib. Coll. 30th 1862; 4 Irv. 208 (Indictment). Note. — The cases quoted above 5 Hume i. 610, and cases of are selected as illustrations only. 118 COINING. Faise state- ment m RB6ISTEEING BIRTHS, ETC. Question ■whether state- ment alone sufficieni,. Pdnishment. not yet been decided whether the deliberate false state- ment is sufficient to constitute the offence, though the Eegistrar make no entry of the false statement in the Eegister, but the words of the Act seem sufficiently broad to cover such a case. The offence is punishable by penal servitude (1) not ex- ceeding seven years or imprisonment not exceeding two years. COINING. COININQ. Law now codified. Interpretation of terms. The practice of charging offences against the coin as crimes at common law, is now entirely abandoned, and the law on this subject has recently been codified by statute (24 & 2.5 Vict., c. 99). The interpretation section, (§ 1), enacts that the expression " Queen's current gold " and silver coin," shall include any such coin coined in any Eoyal Mint, or lawfully current by proclamation or otherwise, in any part of the Queen's dominions : that " Queen's copper coin shall include any copper, bronze " or mixed metal coin, coined or current as above " : that the expression, " false or counterfeit coin, resembling or " apparently intended to resemble or pass for any of the " Queen's current gold or silver coin," shall include any current coin so tampered with as to resemble, or be apparently intended to resemble, or pass for a coin of a higher denomination : that " Queen's current coin " shall include any coin coined in a Eoyal Mint, or lawfully current by proclamation, or otherwise, in any of the Queen's dominions : and that where the " having any " matter in the custody or possession of any person ismen- "tioned," it shall include "knowingly and wilfully " having it in the actual custody or possessidn of any " other person, or in any place whatever, whether his 1 Penal Servitude Acts 20 and 21 Viot. o. 3, and 27 and 28 Vict. c. 47. COINING. 719 " own or occupied by him or not, or whether he have the Commo. " thing for his own use or that of another (1)." § 30 may Offence not to be appropriately noticed here, by which every offence of bemgin°fin'ish- making false coin, or buying, selling, receiving, paying, ^^ ^'*'®- tendering, uttering, or putting off, or offering to buy, &c., counterfeit coin, shall be deemed complete, although the coin be not in a fit state for uttering, or the counterfeit- ing be unfinished or imperfect (2). It will be convenient to classify the criminal offences under this statute, by the punishments authorised to be inflicted, beginning with the lowest. Offences not in- Distinction be- volving a higher punishment than the shortest term of anroffenc"tnd penal servitude are denominated " crime and offence," high crime and and those which may be punished by higher pains are called " high crime and offence." I. Ceime and Offence. Iviprisonment not exceeding six months, with or without hard labour. § 20. First offence of knowingly tendering, uttering. Uttering base or putting off, counterfeit coin, resembling, or apparently silver com. intended to resemble or pass for any foreign gold or silver coin. II. Ceime and Offence. Imprisonment not exceeding one year, with or without hard labour, or solitary con- finement. § 9. First offence of knowingly tendering, uttering, uttering base fjr putting off counterfeit coin resembling, or apparently eii" er coin. 1 This clause obviates the diffl- bella Gibson or Murray, H.G., Dec. culty, (if there vf as truly any), which 11th 1848 ; J. Shaw 135. was pointed at in the case of Isabella 2 This section prevents any ques- Murray and Helen Carmichael or tion being raised such as was Bremner, H.C., July 26th 1841 ; 2 attempted in the case of Agnes Swin 659 and Bell's Notes 137.— Logg, Glasgow, Jan. 11th 1839 ; 2 See also Mary Sutherland and Isa- Swin. 280 and Bell's Notes 134. 120 COINING. Coining. Fmudulent uttering piece of metal as British gold or silver com, be- ing of less value. Uttering base British copper Having three or more base British copper coins with in- tent. Stamping vfords on British coin. Making base foreign coin of denomination below silver. intended to resemble, or pass for British current gold or silver coin. § 13. Tendering, uttering, or putting off with in- tent to defraud, any coin, medal, or piece of metal, or mixed metals, resembling in size, iigure, and colour genuine British gold or silver coin, but being of less value than the coin it is passed off for. § 15. Knowingly tendering, uttering, or putting off counterfeit coin resembling, or apparently intended to resemble or pass for British current copper coin. § 1.5. Knowingly having in custody or possession three or more counterfeit coins resembling, or apparently intended to resemble or pass for British current copper coin, with intent to utter or put off the same, or any of them. § 16. Defacing any British current coin by stamp- ing names or words upon it, whether it is lightened in the process or not (1). § 22. First offence of making or counterfeiting any coin resembling, or apparently intended to resemble or pass for the coin of a foreign country, the coin imitated being of a less value than the silver coin of such foreign country. Exporting base British III. Ceime and offence. Imprisonment not exceeding two years, with or without hard labour, or solitary con- finement. § 8. Without lawful authority or excuse, (burden of proof on the accused), knowingly exporting, or putting on board any ship, vessel, or boat, for the purpose of ex- porting from the United Kingdom any counterfeit British current coin. § 10. Knowingly tendering, uttering, or putting off 1 Difficult questions might arise under this clause, as to what shall be held a name or a word. COINING. 121 counterfeit coin resembling, or apparently intended to Coihing. resemble or pass for British current gold or silver coin ; uttering base and either, at the same time, having in custody or pos- fiivefoohJ'^ °^ session any other counterfeit British current gold or ^tiie possess- ., . " ° mg another Sliver coin ; or, on the same day, or within ten days base coiu, or on next ensuing, committing another offence of tendering, ^UhinSalys &C., as above. '^^^^^ uttering. § 21. Offending a second time against § 20 (utter- Second offence ing base foreign gold or silver coin *). KorSfn gold or silver coin. IV. Ceime and offence. Penal servitude for Jive (1) years, or im/prisonment not exceeding two years, with or without hard labour, or solitary confinement. 8 11. Knowingly having in custody or possession Possessing 4.1, I t -J. ^ 1,1 • ,1 three or more three or more counterieit coins resembling, or apparently base British intended to resemble or pass for British current gold or foins^witi^in- silver coin, with intent to utter or put off the same, or *«'!'■• any of them. V. High ceime and offence. — Penal servitude for a term not exceeding seven years or less than five (2) years, or imprisonment for any term not exceeding two years, with or without hard labour or solitary con- finement. § 5. Unlawfully having in custody or possession Possessing gold or silver in any form, knowing it to have been pro- fa°ken°from''^'^ duced or obtained by impairing, diminishing, or lighten- British coin. ing any British current gold or silver coin. § 14. Making or counterfeiting any coin resem- 1 The Coining Statute makes the 2 The Coining Statute makes the limit three years. This is altered minimum three years. This is by 27 and 28 Vict., c. 47, § 2. altered by 27 and 28 Vict. o. 47 § 2. • Vide 119. 122 COINING. CoiNiKQ. bling, or apparently intended to resemble or pass for British current copper coin. Making, mend- § 14. Without lawful authority or excuse, (burden oTpSdng"' of proof on the accused,) knowingly making or mending, instruments buying or Selling, or having in custody or possession for counter- ■' ° °' • ^ tj-Ijj-. failing British any instrument, tool, or engme, adapted and intended tor counterfeiting British current copper coin. copper coin. Dealing in § 14. Without lawful authority or excuse, (burden coppcr"o?n. of proof on the accused,) (1 ) buying, selling, receiving, paying, or putting off, or offering to buy, &c., any false or counterfeit coin resembling, or apparently intended to resemble or pass for British current copper coin, at a lower value than it imports, or is apparently intended to import. uttering base § 18. Making or counterfeiting coin resembling, or sUvef cmn. °^ apparently intended to resemble or pass for gold or silver coin of any foreign country. Bringing into § 19- Without lawful authority or excuse, (burden to-efgn gold or of proof on the accused,) knowingly bringing or receiv- siiver coin. jjjg jj^to the United Kingdom any counterfeit coin, re- sembling, or apparently intended to resemble or pass for gold or silver coin of any foreign country. Second offence § 22. Sccond offence of making or counterfeiting bas'e'fore^n ^^7 ^oin resembling, or apparently intended to resemble coinofdenomi- qj, p^gs for a Certain coin of any foreign country, the nation below . , , . „ ° ' silver. coiu imitated being of a less value than any of the silver coin of such foreign country (2). 1 These words are not repeated the "words " or shall buy or sell," before this part of § 14, but they &o. obviously override this clause, which 2 This offence, though declared does not begin by a repetition of to be punishable in the same way the words " and whosoever," &c., as the other offences set forth under but is directly coupled to the pre- this head, is not expressly declared ceding, beginning as it does with to be a "high crime and offence." COINING. 123 VI. High Crime and Offence. Penal servitude not Commo. exceeding fourteen years, or imprisonment not exceed- ing two years, with or without hard labour or solitary confinement. § 4. Impairing, diminishing, or lightening any British i-ightening current gold or silver coin, with intent that it may there- siiieLMnwia after pass for British current coin. intent to pass it VII. High Cbime and Offence. Penal servitude for life or any shorter period, or imprisonment not exceed- ing two years, with or without hard labour or solitary confinement. § 2. Making or counterfeiting any coin resembling Making base or apparently intended to resemble or pass for British British gold or *^ . ■*' saver coin. current gold or silver coin. § 3. Gilding or silvering, or washing, casing over Gilding or or colouring, in any way capable of producing the colour Briy'^j,"^ ^^ or appearance of gold or silver, any coin resembling, or pieces of metal apparently intended to resemble or pass for British coin, current gold or silver coin, or any piece of silver or copper, or of coarse gold or silver, or any metal or mixed metals, of a suitable size or figure for coin- ing, and with intent to coin the same into counterfeit coin. § 3. Gilding or washing, casing over or colouring in Gilding or any way capable of producing the colour or appearance of coinwUhiitent gold, British current silver coin, or filing or altering such topsissit for ■■1- 1- IT ,.-.?•, British gold coin with intent to make it resemble or pass for British coin, current gold coin. § 3. Gilding or silvering or washing, casing over, Qii|jin~or or colouring, in any way capable of producing the colour silvering or or appearance of gold or silver, British current copper coin, with in- coin, or filing or altering such coin, with intent to make for BrftFe'h gold it resemble or pass for British current gold or silver coin, or silver coin. § 6. Without lawful authority or excuse, (burden of 124 COINING. Coining. Dealing in base British gold or silver coin. Importing base British gold or silver coin. Offence against 5§ 9, 10, or 11, by a person previously con- victed of such offence, or of any high crime and offence. Third offence, Tittering base foreign gold or silver coin. Making, mend- ing, dealing in, or possess- ing instru- ments for mak- ing impress of British or foreign gold or silver coin. proof on the accused,) kno-wingly buying, selling, receiv- ing, putting off, or offering to buy, &c., any counterfeit coin, resembling, or apparently intended li'to resemble, or pass for British current gold or silver coin, at a lower value than it imports, or is apparently intended to import. § 7. Without lawful authority or excuse (burden of proof on the accused) knowingly importing or receiving into the United Kingdom from beyond seas any counter- feit coin resembling or apparently intended to resemble or pass for British current gold or silver coin. § 12. Offending against § 9, (uttering base British gold or silver coin*) ; § 10. (ditto, aggravated by posses- sion of another coin, or by its being within ten days of a similar offence^f) ; or § 11. (possessing three or more base British gold or silver coiusj), by a person who has been previously convicted of any such crime as set forth in these sections, whether under the law as existing prior to the statute, or under the statute itself, or who has been convicted of any high crime and offence under the present or any previous statute relating to the coin (1). § 21. Offending against § 20 (uttering base foreign gold or silver coin ||), by a person who has been twice previously convicted under these two sections. § 24. Without lawful authority or excuse, (burden of proof on the accused,) knowingly making or mending, or beginning or proceeding to make or mend, or buying or selling, or having in custody or possession any pun- cheon, counter puncheon, matrix, stamp, die, pattern, or 1 This section supersedes objec- tions which were taken in prosecu- tions under the former statutes, to the charging of previous convictions of high crimes and offences. See Janet Brown, H.C., June 7th 1841; 2 Swin. 554 and Bell's Notes 134.— Mary White, H.C., Nov. 5th 1841 ; • Vide 119. t Vide 120. 2 Swin. 568 and Bell's Notes 134— Sarah Moonie or Grierson, Glasgow, Sept. 16th 1842 ; 1 Broun 386 and Bell's Notes 134.— Elizabeth Trea- sury or Campbell, Glasgow, April 29th 1859 ; 3 Irv. 422.— (The rubric of this last case is, on this point, rather misleading.) t Vide 121. II Vide 119. COINING. 125 mould, in or on which there shall be made or impress- Coining. ed, or which will make or impress, or is adapted to make or impress the figure, stamp, or apparent resem- blance of both or either of the sides of any current Brit- ish or foreign gold or silver coin (1), or part or parts of both or either of the sides, or making or mending, &c. (as above), any edger, edging, or other tool, collar, in- strument, or engine, adapted and intended for marking coin round the edges with letters, grainings, or other marks or figures apparently resembling those on the edges of such coin as above ; or making or mending, &c. Making, &o., (as above) any press for coinage, or cutting engine for ^^7 p''^^^ *™ V / J Jr o ' ^ b iD coinage, or cutting round blanks out of gold, silver, or other metal engine for , . T 1 . , , , » cutting blanks or mixed metals, knowing such press to be a press for out of metal coinage, or such engine to have been used, or to be in- ^°eTto niake^ tended to be used in making such coin as aforesaid. b^se coin. § 25. AYithout lawful authority or excuse, (burden Conreying id- of proof on the accused,) knowingly conveying from any metXfrom'^ Eoyal Mint any puncheon, counter puncheon, matrix, ™°*- stamp, diCj^ pattern, mould, edger, edging, or other tool, collar, instrument, press, or engine used in or about coining or any useful part of such articles, or any coin, bullion, metal, or mixture of metals. Such are the offences falling within this statute (2). Punishments. As it has been fihought convenient to classify the offences by the punishment, it may be added here, that by § 40, where solitary confinement is made part of the sentence, it may not exceed one month at a time, or more than three months in each year (3). 1 The "words of the section, the scope of the present work — though applicable in the case of §§ 17, 23, 26. British coin, to gold and silver 3 By § 38 power is given, in lieu or only, would appear to apply to ant/ in addition to punishment, to ordain foreign coin, which can scarcely an offender to find security for have been the intention of the Le- good behaviour for a certain time, gislature. but as it uses phraseology adapted 2 It contains also some minor only to English cases, it may be offences, punishable only by fine or doubted whether it applies to Scot- forfeiture, which do not fall within land. 126 COINING. Coining. Uttering need not be as genuine. Question whether the same act can constitute both crime and offence and high crime and offence. It is to be observed that in offences relating to the coin, the "tendering, uttering, or putting off" is not expressly required by the Statute to be " as genuine." Accordingly it has been held that a person who receives a good coin in change, and hands back a bad one, stating it to be the coin he received, and demanding a good one in its place, is within the meaning of the words of the Statute (1). The question whether a person can be charged cumulatively with a " crime and offence " and " a high crime and offence," under a narrative re- lating only one act of contravention of the Statute, is not satisfactorily disposed of by the decisions. Por example, where the libel charged the accused as guilty of both, and the minor narrated simply that the accused uttered a base coin, and had been previously convicted, the Court entertained grave doubts of the competency of such a cumulative charge, and the '' crime and offence" was withdrawn (2). In some previous cases, this cumu- lative form passed without objection (3), and in one case the objection was repelled (4). But it seems impossible to doubt that such a charge, where only one act of con- travention is libelled, is incompetent. The act declares that where a person in certain circumstances commits a particular offence, he shall " be guilty of a high crime " and offence," the plain meaning of which is, that the circumstances remove the act done from one category, called "crime and offence," to another called "high " crime and offence." And a different punishment is pre- 1 John Mooney, H.C., Dec. 8th 1851 ; J. Shaw 509.— See also Mar- garet Brown, Nov. 9th 1833 ; Bell's Notes 131. 2 Mary Watson, Glasgow, Dec. 21st 1858; 3 Irv. 306. 3 Jean Forbes, July 14th 1835; Bell's Notes 133.— Elizabeth Brown; Jan. 16th 1837; Bell's Notes 133.— Margaret Eobertson, NoT.20thl837 ; Bell's Notes 133. 4 Eose Ann M'Adam, H.C., July 12th 1847 ; Ark. 326.— The opinion of the Lord Justice Clerk Hope which is q^uoted in the report, and which was favourable to the rele- vancy, does not appear in any way to shew the correctness of the cumulative form of the charge, but on the contrary, seems to point out its inappropriateness vety strongly, COINING. 1 27 scribed in the one case and in the other. But if it were coining. competent to charge the same species facfi, as con- stituting both " the crime and offence " and the " high " crime and offence," the prosecutor would be entitled on obtaining a conviction to ask the Court to sentence the accused to such a term of punishment as would combine the penalties of both, _and therefore would exceed the punishments prescribed by the Act for the case of a person guilty of the "high crime and " offence." And thus the specific punishments fixed by the Act might be evaded. This would plainly be a result inconsistent with the whole purpose of the Statute. On the other hand, it is of course competent to charge guilt of the crime and offence, or of the high crime and offence alternatively, as the prosecutor may possibly prove the crime and offence, though he may fail to prove the circumstances of previous conviction or otherwise, on which he relies to establish the guilt of the high crime and offence, in which case a conviction would be a good conviction of the crime and offence which found the act proved, but negatived the supplementary cir- cumstances. It is to be observed that in cases of repeated uttering Where the under § 10, the coin uttered upon the second occasion repefterutter- must be a different coin from that uttered on the first, ^^^^l^f^^^^^l It does not constitute the aggravated offence under that been uttered section, that a person has repeatedly tendered the same occasion. coin (1). Again, it is not competent to charge a contra- Where separate vention of the sections relating to uttering, and at the uttering and same time of the sections making it a crime to possess cofn,^the co°ins coin, where the coins said to have been possessed by the possessed m^^st accused are the same coins as those he is charged with than the coins uttering (2). Lastly, it must be noticed that to con- " 1 Anderson » Blair, H.O., Jan. Glasgow, April 21st 1864; 4 Irv. 14th 1861 ; 4 Irv. 5. 495 and 36 So. Jur. 556. — See also 2 Matthew Weir and Jacob Hull, Jas. Graham, Deo. lOtb 1832 ; Bell's Notes 135. 128 comma Coining. stitute repeated uttering, no substantial interval of time between the one offence and the other is necessary. Where two men, acting in concert, purchased articles in a shop, each in succession paying for what he ordered with counterfeit coin, without any interval between the two transactions, they were convicted under the above section (1). FIEE-EAISING. Scope of teem wilful fire- BAI3ING. Some part of Bubjectmust have taken fire. Incendiary neednotdirect- ]y apply fire to subject. The crime of fire-raising consists in wilfully setting fire to any house, store, barn, or other valuable building, or to growing or stored corn, or to growing wood, or to coalheughs (2). In one case where the building set fi^e to was a railway labourer's hut, and uninhabited, it was maintained, that the crime was not wilful fire-raising, but this was overruled (3). It is essential to the com- pletion of the crime that some part of the subject intended to be injured or destroyed has been laid hold of by the fire (4). But if a portion of the subject have actually taken fire, the crime of fire-raising is complete, and it matters not how little has been consumed (5). It is not necessary that the incendiary should actually apply the fire to the house or other subject. If he set iii-e to the furniture in the house, or to an outhouse or 1 Matthe-w Weir and Jacob Hull, Glasgow, April 21st 1864; 4. Irv. 495 and 86 Sc. Jur. 556.— That this ■was the nature of the facts as proved in evidence, is stated on the authority of the Advocate Depute and the counsel for the accused. 2 Hume i. 125, 126, referring to statutes 1525, c. 10 ; 1540, c. 38 ; 1592, 0. 148; 7 Anne c. 21; 1 Geo. i. o. 48.— i. 131, 132, cases of Cunningham ; Fraser ; Buchanan : Young: Donald and Oliver: Thomp- son: Brown: and Paterson there. — Alison i. 441. 3 John Vallance, H.C.,lirov. 30th 1846 ; Ark. 181. 4 Hume i. 126, 127, and case of Stuart and others : and Fraser there. ^Alison i. 429, 430.— More ii. 392. — Andrew Eoss, Inverness, Sept. 26th 1822 ; Shaw 79. 5 John Arthur, H.O., March 16th 1836 ; 1 Swin. 124 and Bell's Notes 48, (Lord Justice Clerk Boyle's charge). WILFUL FIRE- EAISING. FIRE-RAISING. ] 29 even a wooden shed built against it, and the fire reach Scope of term and seize upon some part of the house, the law holds him equally guilty as if he had applied the fire directly. The crime is also complete if he set fire to furze on the edge of growing corn, and it spread to the crop, or to wood piled in a farm yard and the fire seize on the corn stacks (1). In short, if fire be kindled so near, and in such circumstances as to manifest an intention that it shall spread to a subject, to set fire to which involves the pains of fire-raising, and it do so spread, the crime is complete, however soon the fire may be discovered and ex- tinguished (2). It is not necessary that there should be intent implied manifest intention. This will be implied from such con- 1" °^^® °^ ^'^' -t^ treme reokless- duct as indicates an utter regardlessness of the likeli- "ess. hood of the fire spreading. Thus if a lawless mob Mobsettingfire engaged in rioting, set fire to premises, even without any *° i^i'iding. specific intention, as by piling up furniture in the streets and setting it on fire, in consequence of which the flames seize on the house, the mob is undoubtedly guilty of fire-raising, for their conduct displays such utter depravity and disregard of duty, that whatever happens must be held the result of wilful wickedness (3). One case of this sort has raised some difficulty — that of Fire-raising in prison-breaking. Grave doubt has been expressed fng"^ whether burning a gaol door for the purpose of escape constitutes wUful fire-raising (4). Baron Hume is clearly of opinion that if a mob trying to rescue pri- soners burn their way into the prison, they are guilty of fire-raising (5). And it is difficult to see any difference 1 Hume i. 129, and cases of Boyle's charge). Hamilton and Campbell : and Cros- 3 Hume i. 130, 131. — Alison i. 434. san in note 2. — i. 130 and case of 4 Jean Gordon or Bryan and Douglas there and case of Fallas- others, Aberdeen, April 22d 1841 ; 2 dale or Drysdale or Anderson in " Swin. 545 and Bell's Notes 48. note a. — Alison i. 431 to 434. — More 5 Hume i. 131. — See also Hume ii. 392. i. 404, where he says " fire-raising 2 Hume i. 127 to 130. — Alison i. "is equally committed by burning a 430. — John Arthiir, H.O., March " gaol or any part thereof, as any 16th 1836 ; 1 Swin 124 and Bell's " private and ordinary habitation." Notes 4S ; (Lord Justice Clerk —Alison i. 435. 130 FIRE-RAISING. Scope OF TERM Wn^FUL FIKE- EAISING. Thief acci- dentally firing house. Burning by- landlord or tenant. Question where tenant not entered. Party setting fire to his own building in order to burn neighbour's. House burned through fire raised by neighbour to defraud in- surers. MiNOK OFFENCES. Burning shed or movable property. Person firing his own property to danger of neighbour's. in principle between the two cases. In both the object of applying fire to any part of the building is highly criminal, and in both cases, the guilty parties shew in the act done utter recklessness whether the entire build- ing be consumed or not (1). On the other hand, if a thief accidentally set fire to a house, this does not amount to wilful fire-raising, there having been no intention (2). A proprietor who burns his house whUe it is occupied by a tenant, is guilty of fire-raising (3) ; as is the tenant if he set fire to it (4). Whether the same would be held in the case of fire-raising by the landlord where the tenant had not yet entered into occupation, or where the only right in the other party was one of hen or security over the tenement, has not yet been decided (5). But it is undoubtedly wilful fire-raising if the owner of a house, or even of a wooden shed, set fire to it, in order that his neighbour's house standing next to it may take fire, and this result follow. And in such a case it is no defence to say that what he set fire to was his own property (6). The same holds if his neighbour's house be burned in consequence of his having set fire to his own house for the felonious purpose of defrauding insurers (7). Besides the heinous crime of wilful fire-raising, there are many cases in which it may be criminal to set fire to a subject (8). Thus, if any one set fire to a detached shed or to a stack, not of corn, but of hay or wood, this is highly criminal. Also, if a person burn another's furni- ture or movable property of any sort. A person may even be liable to punishment for setting fire to his own 1 See Neil M'Queen, Inver- ness, April 1840 ; BeU's Notes 181. 2 He may be liable to be punished for Culpable and Eeckless Fire- raising. Vide next page. 3 Hnme i. 133, and case of Buch- anan there. — ^Alison i. 437. i Hume 1. 132.— Alison i. 435,436, and cases of Drysdale: Martin: Gillespie and others: and Suther- land there. 5 Hume i. 133. — Alison i. 437. 6 Hume i. 130, 134.— Alison i. 438. —More ii. 392. 7 Hume i. 26, 134, (Hume states the point as undecided) Alison i. 439.— More ii. 392. 8 Hume i. 135. — Alison i. 442. FIEE-EAISING. 131 OFFENCES. property, to the danger of his neighhour, although the Minor fire was not intended to spread, and did not in fact spread, so as to lay hold on his neighhour's property (1). It is also criminal to set fire to one's own property, Fire to defraud with intent to defraud insurers, even though there be no °^"™'™' danger to the property of others (2). But a charge of setting fire to property with intent to defraud a person who had "affected the same by sequestration or other " legal diligence," was withdrawn on objection (3). Further, if property be consumed by fire, in conse- Fire caused by n 11 .1 ■ ji ^ recklessness. quence 01 gross recklessness, the person causing the fire will be criminally responsible, although there was no intention to kindle the fire at aU (4). For example, if a person after lighting his pipe on the road, toss the burn- ing match over the wall, in consequence of which the crop on the other side of the wall is set fire to, he will be responsible for such culpable disregard of the safety of the property of others (5). Or a more serious case may be imagined, that of a person in a state of wild excitement from anger or otherwise, throwing a light among combustibles in his own house, without any real intention of raising a fire, and the fire spreading and doing damage to his landlord or neighbour (6). Any serious attempt to commit fire-raising is criminal, attempt. if it approximate to the completed act. For example, if a burning brand be maliciously thrown into a house or -Attempt '0 o J commit fire- stackyard, or the furniture of a house be set fire to, the raising. incendiary is criminally responsible, even though the crime of fire-raising be not completed by the fire laying 1 Hume i. 134.— Alison i. 438.— 1865 ; 5 Irv. 79 and 37 Sc. Jur. See also John Arthur, H.O., March 417. 16th 1836 ; 1 Swin. 124. 4 Hume i. 128.— Alison i. 433. 2 Hume i. 134 and cases of Ker: 5 Arch. Phaup, H.O., Nov. 9th and Muir and Oant there. — Alison i. 1846; Ark. 176 (Lord Justice Clerk 438. — Ohas. Little, Glasgow, May Hope's statement to jury). 1st 1867 ; 2 Irv. 624. 6 Geo. Maobean, Inverness, 3 Bob. Lawson, Perth, April 12th April 15th 1847; Ark. 262. 132 FIRE-EAISING. Attempt. hold On the Subject intended to be destroyed (1). Even Attempt to fire attempt to Set fire to movable effects, to the danger danger rf*° ^ of the lives or property of the lieges, is a relevant °^'^^'^- charge (2). Punishment. The punishment of wOful firc-raising is death (3), but a capital sentence is never demanded, and penal • servitude is the punishment inflicted. Attempts and acts of fire-raising to defraud insurers are punished by penal servitude or imprisonment, according to circum- stances, and reckless fire-raising is generally punished by imprisonment. DESTROYING SHIPS. Statdtory OFFENCE. By statute (4), any owner, captain, master, of&cer, or mariner wUfuUy casting away, burning, or otherwise des- troying the ship or vessel of which he is owner, or to which he belongs, or directing or procuring the doing of such an act, with intent to prejudice insurers, or mer- chants putting goods in the ship, or the owners, is liable to capital punishment. In such a case, according to modern practice, a capital sentence would not be de- ls an offence at nianded by the prosecutor. Such offences were held punishable by arbitrary pains at common law, before the common law. 1 Hume i. 135.— Alison i. 442, 443.— Will. Douglas, H.C, May 28tlil827; Syme 184. 2 John Arthur, H.C., March 16th 1836; 1 Swin. 124. 3 Acts 7 Ann c. 21. — 1 Geo. istat. 2 0. 48, § 4. 4 Act 29 Geo. HI. c. 46, § 1. The subsequent statute, 43 Geo. III. c. 113, which Baron Hume says " seems " to apply to Scotland, was repealed by 9 Geo. IV. c. 31. In the case of WUl. Kidd, H.G., Feb. 25th 1850, the statute 43 Geo. III. was libelled on (Indictment, Adv- Lib. Coll.), either under the idea that the repealing statute did not apply to Scotland, or in ignorance of the repeal. In th'at case the judges were not satisfied that the Act 43 Geo. III. did apply to Scotland, and the charge was passed from. (Lord Justice-Clerk Hope's MSS.) The terms of the repealing statute seem to indicate that the act never did apply to Scotland. DESTEOYING SHIPS— MALICIOUS MISCHIEF. I33 passing of the statute, and without the limitation of per- Statutory sons stated in the statute (1). It is a question which is left somewhat in doubt hy QueBtion whe- the decisions, whether wilfully destroying a vessel, the ing'^ve?sd°of property of another, although there be no fraud intended, ^ reievanr '^ is a punishable crime. In one case such a charge was charge, sustained (2) ; but in a later case it was withdrawn (3). It seems impossible to doubt that such an offence could be made the ground of a criminal charge. No act of wil- ful and malicious mischief can reasonably be held to be a crime, if this one be not. MALICIOUS MISCHIEF. The term mischief, preceded by such adjectives as Scope of malicious, or wanton, or wilful, applies, in the law of chief. Scotland, to all injuries to, or destruction of, property where there is no appropriation by the offender, but only the indulgence of cruel or malicious passion, or an at- tempt to concuss others by injuring their property. It includes all such cases as destroying another's buildings, or stone dykes, breaking fences, cutting up turf, injuring trees, tearing up plants, breaking windows, throwing down corn stacks, firing piles of wood or peats, remov- ing the bungs of casks containing liquids, breaking implements or apparatus (4), or destroying or maim- 1 Hume i. 176, 177, cases of cases of Muir : Campbell : and M'lver and M'Allum : and M'Nair Vaudenburgh there. — i. 451, case there i. 486, case of Herdman of Monro there. By certain old there. — Alison i. 641. statutes special penalties attached 2 Will. Kidd, H.C., Feb. 25th to injuring ploughing apparatus or 1860 ; Lord Justice Clerk Hope's beasts of draught at particular MSS. seasons, and to injuring young 3 John Martin, H.O., July 22nd wood, breaking dovecots, &c. But 1858 ; 3 Irv. 177. such offences would probably be 4 Hume i. 122, cases of Eobert- prosecuted now without regard to son : Leiteh : Grant : and Monro these statutes, which have long been there. — i. 123, two cases of Trotter in desuetude, and applied to times there. — ^Alison i. 448, 449, 450, and very different from the present 134 MALICIOUS MISCHIEF. Scope of TEEM MIS- CHIEF. Obstructing railway. Mischievous intent not readily" pre- sumed where act arises from a disputed right. ing another's domestic animals (1). It also includes such acts as maliciously placing any thing on a railway, in order to obstruct trains ; or wilfully and recklessly doing so in a manner calculated to obstruct trains (2). This sort of mischief has also formed the subject of special statutory enactment (3), by which it is made an offence wilfuUy to " do or cause to be done any thing in such " manner as to obstruct any engine or carriage using any " railway ; or to endanger the safety of persons con- " veyed in or upon the same ; " or to " aid or assist " therein." It is a question whether under this act any thing can be cha,rged except a case of actual obstruction, or actual imminent danger (4). But the common law charge wiU be a safe resort in every case of diffi- culty. In the case of mere injury to inanimate property, as by cutting up turf, or breaking down an obnoxious fence, or the like, partaking of the character of trespass, and in most cases being the result of some disputed question of right between parties, some degree of violence and dis- orderly conduct is usually required to constitute a charge of mischief (5). In one case where the servants of the buyer of some wood refused to unload their master's cart at the command of the person who sold the wood, (the condition of sale being payment before removal, and the price not having been paid), and the seller thereupon cutpart of the harness of the horses in the carts, it was held that this was not a case of that reckless and wilful des- 1 Hume i. 124, and case of Bellie there. — Alison i. 450, and cases of WUson : Clark : and Burton there. In the case of Patrick M'Gruire, Glasgow, Sept. 1826, a charge of wickedly and feloniously slaughter- ing any cow or other animal the property of another, without the consent of the owner thereof, was sustained. Indictment and Lord Justice-General Boyle's MSS. 2 David Miller, H.O., July 24th 1848 ; Ark. 525.— John E. Murdoch, Perth, May 2nd 1849; J. Shaw 229. 3 Act 3 and 4 Vict. u. 97, § 15. 4 David Miller (supra.'). 5 Hume i. 124, and oases of Eigg and Trotter : and Dunbar there. — Alison 1. 449. MALICIOUS MISCHIEF. 135 traction of property -which constitutes malicious mis- Scope op chief (1). Even if mischief be done with a fraudulent chief. intent, that does not necessarily constitute malicious Case of pro^ mischief. Thus where a farmer was charged with break- For'a fmud-^ ing beams in a farm house, in order to increase a claim uient purpose. for damage alleged to be due to him as tenant, the charge of malicious mischief was held irrelevant (2). It has not been decided whether " attempt to commit Question whe- " malicious mischief " is a relevant point of dittay, or fui attempts to whether a deliberate attempt to injure another's pro- ohSfindTcT- perty, the success of which is prevented, may not aWe. amount to criminal mischief Where a woman was charged with this offence, in respect she threw stones at certain windows, which failed to break them, in con- sequence of their being (unknown to her) protected by wire guards, the Court, without giving any opinion, recommended the withdrawal of the charge (3). Besides -A-ggeava- ° ^ ' TIONS. the ordinary aggravation of previous conviction, crimi- intent nal mischief may be aggravated by its intent, as in the case of damage done to property, in order to concuss masters or workmen (4). Or it may be aggravated by goi^sebreak- its being committed by means of housebreaking (5). The punishment of malicious mischief is generally im- Pdnishment. prisonment, or in trifling cases a fine. By certain old sta- tutes (6), destroying or houghing horses or cattle, and cut- ting growing wood or corn, are capital crimes, but these statutes may be held practically to be obsolete. But by 1 Speid V. White, Perth, Sept. lin Campbell, Inverary, Sept. 13th 30th 1864; 4 Irr. 584. 1823 ; Shaw 105). But the report 2 Will. Eeid, Ayr, Sept. 1833 ; does not indicate whether the gen- Bell's Notes 47. eral question, or only the terms of 3 Ann Duthie, Aberdeen, April the particular Indictment formed the 24th 1849 ; J. Shaw 227. foundation of the objection. It 4 Arch. Barr and others, June would rather appear to have been 30th 1834; Bell's Notes, 47. the latter only. For the words of 5 David Munro, July 12th 1831 ; the report are— "find that the ag- Bell's Notes 48. In an earlier case a "gravation of housebreaking, as charge of aggravation by house- " libelled, is not relevant." breaking was found irrelevant (Co- 6 Acta 1S81, c. 110—1587, c. 83. 136 MALICIOUS MISCHIEF. PnHismnsNT. a more recent statute (1), wilfully and maliciously cutting Destroying Or destroying serge or other woollen goods in the loom, or wea^ng °" °^ °^ *^^ ^^^^' °^ burning, cutting, or destroying any apparatus. rack on wHch such goods are hung to dry, or any velvet, or silk, or mixed silk goods in the loom, or any linen or cotton, or mixed linen or cotton goods in the loom, or any of the apparatus used in these manufactures, are crimes punishable with death. In all such cases, how- ever, the pains of law are invariably restricted to an arbitrary punishment. 1 Act 29 Geo. iii. a. 46. 137 HOMICIDE. Homicide is held in law to be committed only where Bcopeofterm a distinctly self-existent human life has been destroyed. '- Destruction of an unborn chUd, however short a time Destruction of before delivery, may be criminal,* but is not homicidal (1). not homicide. The injury inflicted must be a real injury, capable of Cause of death) being defined. It will not do, for example, to allege that Sjury. the accused frightened the deceased, so as to bring on fever and cause death (2). Further, the death of the sufferer must have resulted, as a direct consequence, Death must he from the injury inflicted. If, after the infliction of the ^uence oT**' injury, some other person have done an act which is inj^^y- truly the direct cause of death, the person who caused the first injury cannot be held guilty of homicide. Sup- pose, for example, that A has mortally stabbed B, but while it is still uncertain when he will die, C administers poison to B, and kUls him ; A cannot be found guilty of homicide, for the direct cause of the death is the poison administered by C (3). Again, if the injured party have so far recovered as to go abroad, and afterwards die at some distance of time, the presumption is that his death was not directly caused by the 1 Hume i. 186. — .Alisoni.71,72. — 2 Hume i. 182, 183, and oases of Moreii. 360. — Jean Maoallum,Perth, Duff and others : and Kinninmonth Oct 11th 1858; 8 Irv. 187 and 31 there.— llison i. 148.— More ii. 362. So. Jur. 37. 3 Hume i. 181, 182.— More ii. 361. * Vide 175. 138 HOMICIDE. Scope of term homicide. Death from s con- tracted by oon- finement. Case of gross neglect aggra- vating injury and causing death. Deceased's for- mer state of health of no consequence. Interval be- tween injury and death. No defence that deceased was not skil- fully treated. injury (1). And tMs will also be the case if he die by- disease, not supervening on the injury, but contracted solely by the confinement resulting from it (2). Further, there is no case of criminal homicide, if an injury notmor- tal has been aggravated, by the wUfuI neglect or miscon- duct of the deceased himself (3), or by flagrantly unskUful treatment by himself or others, so that it has resulted in death(4). But, on the other hand, the state of health of the deceased at the time of the fatal injury cannot alter its character. It is as punishable in law to kill a person who is at the time dying of a mortal disease, as the strongest and healthiest of men (5). Indeed, that may be held a criminal act of violence in the case of a frail person, which would not be held such in the case of a per- son in good health (6). Nor does the occurrence of an in- terval between the injury and the death make any differ- ence, if the injury be the cause of the death. That a long interval has elapsed between the injury and the death does not affect the relevancy of a charge of homicide, whatever presumptions it may give rise to in forming an opinion on proof (7). And though the injury be one not inevitably mortal, and one from which the deceased might have recovered, if properly cared for and skilfully treated, this will not free the accused from the pains of his offence. In such a case the injury is stiU the direct cause of death (8). If by care and skiU the life be saved. 1 Hume i. 181, case of Kinnin- month there. — Alison i. 146.— Daniel Houston, Nov. 26th 1833 ; Bell's Notes 70. 2 Hume L 182, and case of Mit- chell there. — Alison i. 146. 3 Jas. Flinn and Margaret M'Donald or Brennan, Perth, Oct 12th 1848 ; J. Shaw 9. i Hume i. 182, cases of Mason : and Crombie there. — ^Alison i. 147, case of Paterson there. — More ii, 364.— John M'Glashan ; Bell's Notes 69. 6 Hume i. 183, and case of Bam- say there. — ^Alison i. 71, 72, 149. — John Smith, Inverness, April 28th ' 1858 ; 3 Irv. 72. 6 Hume i. 238,— Thos. Brecken- ridge, H.O., March 18th 1836; 1 Swin. 153 (Lord Meadowbank's opinion). — Compare Isabella Brodie, H.C., March 12th 1846; Ark. 45, with Isabella Livingstone, Glasgow, May 7th 1842; 1 Broun 247 and Bell's Notes 78. 7 Hume i. 185, 186 Alison L 150, 151. 8 Hume i. 184, case of Edgar there. — Alison i. 149. — More ii. 364. HOMICIDE. 139 that is a fortunate circumstance for the accused, but want Scope of term of attention or skill on the part of others to the cure of "°™°""°' the evil he himself has done, can never excuse his crime (1). Of course, as already observed, if the accused Unless it ap- can prove that the death was the direct result, not of the miemanage- injury, but of flagrant mismanagement, and that but for ^n^'a^d^was^' this mismanagement the deceased would have survived, t™'? ^^^ <=ause this would be a good defence to a libel charging him with having caused the death. If the death be caused by disease directly brought on Case of death by the conduct of the accused, as for example, by lockjaw, oaused'by'the erysipelas, or brain fever supervening, the violence is injury- stOl held to be the true cause of death (2). But this Or brought on can hardly be extended to the case of death produced by tr^sSment. some evil consequences following upon proper medical treatment. Thus, where the injuries received by the deceased made bleeding necessary, and the wound made in bleeding became inflamed, and was the cause of death, the inflammation being in no way connected with the injuries, the charge of murder was abandoned (3). Criminal homicide divides itself into two classes, P^^™'* f^ Murder and Culpable Homicide. It often happens that very fine distinctions require to be drawn in discriminat- ing whether the circumstances of a case constitute murder or only culpable homicide. And it is thus 1 Francis Johnstone, Glasgow^ Jan. 6th 1851; J. Shaw 468. The April 17th 1831 ; Bell's Notes 69 report of the case of J. Campbell, Margaret M'Millan orShearer,H.C., GlasgowApril 1819, by Sir Archibald Jan. 6th 1851 ; J. Shaw 468. — John Alison, was declared to be incorrect Macglashan ; Bell's ISTotes 69. by the late Lord Justice-Clerk Hope, 2 Humei. 185, case of Pretis in note (who was counsel for the Crown in 4. — More ii. 361. — Alex. Mackenzie, the case), the fact being that the H.C., Mar. 14th 1827; Syme 158 medical evidence established that (Lord Justice-Clerk Boyle's charge). the erysipelas was not caused by —John Jones and Edward Malone, the injury. H.C., June 22d 1840 ; 2 Swin. 509. 3 Hugh M'Millan and Euphemia — Jas. Wilson, Glasgow, Jan. 10th Lawson or M'MUlan, H.C., Dec. 1838 ; 2 Swin. 16 and Bell's Notes 17th 1827 ; Syme 288 and Hume i. 70 (Lord Oockbum's charge). — 184, note 1, and Lord Wood's MSS. Margaret M'Millan or Shearer, H.O., THE SUBJECT. 140 HOMICIDE. Division of the sdbject. Murder. Causing death wilfully or totally reek- question of cir- cumstances. very difficult to treat of the one offence, without indirectly saying a good deal about the other. But in what follows, the general intention is to speak under the head of MuBDEE, of those cases which, though in reality murders, have circumstances which it might be thought reduced them to culpable homicide ; while under the head of Culpable Homicide, those cases will be alluded to, which are truly cases of culpable homicide, although they might appear to bear a more serious aspect. And after the discussion of both modes of criminal homicide, the sub- ject of Justifiable Homicide will be shortly noticed, for the purpose of pointing out the circumstances which may take the act of slaying another out of the region of cri- minal homicide altogether. It is not thought necessary to speak separately of casual homicide, as the principles to be evolved in speaking of culpable homicide, will sufficiently point out in what cases a homicide is to be held not culpable because casual. I. Murder is constituted in law by any wilful acts causing the destruction of human life, whether plainly intended to kill, or displaying such utter and wicked recklessness, as to imply a disposition depraved enough to be wholly regardless of consequences (1). The amount of recklessness which may constitute murder, will vary of course with circumstances. The same conduct which would not be held to indicate total recklessness in the case of an attack upon a person of full age or ordinary strength of body, might be sufficient to infer such recklessness in the case of an infant or aged person (2). One blow even with the hand might be sufficient to infer a murder in the case of a child (3). And as regards frail and aged people it has been well said that violence to them is doubly reprehensible, and 1 Hume i. 254, 265.— i. 256, case of Telfer in note 3. — i. 257, case of Eae in note 1. — ^i. 260, case of M'Crawin note 1. — ^AUson i. 2, 3, 4. 2 Hume i. 238.— Alison i. 5, 6. 3 Hume i. 238, case of Brown there. HOMICIDE. 141 that the weak are entitled to protection against the de- mtoder. gree of violence that wiU injure them (1). It may conduce to clearness to consider the subject Modes of of murder under separate heads : — mukder. First, murder by personal violence. Second, murder by poisoning. Third, murder by causing death while committing some other serious crime. There is scarcely any possibility of defining the Murdekbt modes in which murder by personal violence may be ■^™^'^'"^^' committed. It is not requisite that a deadly weapon Weapons not should be used, nor indeed is it necessary that any ''°°®°''*- weapon should be employed (2). It is just as triily Smothering, murder to smother by lying and pressing upon a person's chest (3), or to kill by tossing sulphuric acid in a per- Throwing son's face, as to shoot or stab, or beat on the head with *°"^^' a blunt instrument. It is not even necessary that the act violence may- done should be positively violent, provided its probable gj'J^otive'.™" and foreseen result was the death of the individual against whom it was committed. Locking up a person without starving. food, or giving a slight push which sends the person causing fail jostled over a precipice, or maliciously cutting the from height strands of a rope, so that a person suspended by it falls and is killed (4), or deliberately tilting up a board hung over the side of a ship, by which a person on it is killed (5), are all murders. The same holds of the placing of a Spring gun. spring-gun (6), or laying an explosive petard in a per- son's way. And even a deliberate and continued repeti- Blows with tion of blows, though only struck with the fist, may fist. 1 Thoa. Breokenridge, H.C., Mar. 4 John M'Callum and WiU. 18th 1836 ; 1 Swin. 153 (Lord Comer, E.G., July 22d 1853 ; 1 Irv. Meadowhank's opinion). 259. 2 Hume i. 261, 262, and two cases 5 John Campbell, H.C., Nov. 9th of Brown and case of Lindsay there. 1836 ; 1 Swin. 809 and BeU's Notes 3 This was the mode in the 79. notorious case of Will. Burke and 6 Jas. Craw, June 26th 1826, Helen M'Dougal, H.G., Dee. 24th and June 6th and 18th 1827 ; Syme 1828 ; Syme 345. 188 and 210, Shaw and 194. 142 HOMICIDE. Murder et violence. Case of deadly weapon being abandoned and a less deadly resorted to. Fata] duelling is murder. Murder by POISON. Poisoned in- jection or puncture. Charcoal fumes. Poison need not be virulent. Using ordinary drug to aggra- vate disease. amount to murder (1). "Wherever there is manifest grievous bodily harm intended, or at least known to he a Kkely result of the act done, then on death ensuing there is a good charge of murder against the perpe- trator of the outrage (2). But in cases where the violence has been of a kind not likely to produce death, it will always of course be a ground for making a distinction, that the accused threw aside a deadly weapon, or did not use a deadly weapon which he had at hand. In such a case it will require very strong evidence of pro- tracted outrage by the less deadly means used, to bring the guilt up to murder (3). But, on the other hand, in a charge of murder it is not necessarily a good defence, that death, though caused by the accused's violence, was to some extent invited by the deceased. Thus, in strict law, death caused by duelling is murder, although the person killed was the challenger (4). Murder by poisoning may be committed in many ways, besides administering by the mouth. Mingling poison with an injection, or pricking with a poisoned instrument, or shutting a person \ip in a closed room exposed to charcoal fumes, with intent that the person should die, are all acts of murder. It cannot be doubted that even such an act as deliberately turning on a jet of gas in a closed room, and thus causing suffocation, would be sufl&- cient to found a relevant charge of murder. Nor is it essential that the substance used should be a virulent poison. Murder may be committed with drugs in them- selves by no means dangerous, and even such as are in daily use. For example, if a person be suffering from flux, and another maliciously removes from his bedside the 1 Hume i. 262, and cases of Brown: and Lindsay there, and case of An- derson and Glen in note a. 2 Hume i. 189, and case of Neil- son and others in note 2. — i. 190, and cases of Wilson: Smith and others: and Key there. — i. 256, 257, 258, and case of M'Farlaue case of Home case of M'lver there. — i. 259, there. — i. 260, there. 3 Hume i. 256, and case of Hamil- ton in note 1. — Alison i. 8. 4 Hume i. 230, 231, and cases of Bobertson: Douglas: Mackay and Gray there. — Alison i. 53 to 56. HOMICIDE. 143 medicines provided for that disorder and replaces them Murdeb by with strong purgatives, which aggravate the com '■ plaint and destroy the patient, that is unquestionably murder (1). Whenever death directly results from the perpetra- murder by tion of any serious and dangerous crime, even though scltikg from there was no positive intention of injury to any one, the commission of person thus causing death is liable to a charge of murder, obime. Very many cases of this sort have occurred in practice, and many others may be supposed. Thus, if an attempt procuring is made to procure the abortion of a pregnant woman, ^^°^^°^- either by administering drugs or using instruments, or by any other process, and the woman die in consequence, this is in law a murder (2). It is also murder if a child Exposure of of tender years die from being exposed to the weather, without care or nourishment, and in total disregard of the consequences (3). Again, if by any act of wilful fire- Fire-raising, raising persons in the house or neighbouring houses are killed, the fire-raiser is guilty of murder (4). Many other cases may be supposed If in a violent struggle Eobbery. with a robber, the person injured is dashed against a wall, or thrown to the ground, and has his skull frac- tured, the robber, being engaged in a deed of violence which results in death, is guilty of murder (5). Nor Wreckers can it be doubted that wreckers are guilty of murder, ughts" who by the exhibition of false lights bring about the destruction of a ship, by which the crew are drowned, although the immediate object was only plunder. And Sinking ships, the same will hold of the scuttling of a ship, though the true object was the defrauding of the under- writers. 1 Hume i. 289, and case of Clerk and 31 So. Jur. 176. and others there. — i. 290, case of 3 Hume i. 190, cases of Smith Paterson in note 1. and others : and Key there. — 2 Hume i. 263, 264, and case of Elizabeth Kerr, H.C., Dec. 24th Dalrymple and Joyner there. — 1860 ; 3 Irv. 645. Alison i. 52.— Will. Eeid, H.C., 4 Hume i. 24.— More ii. 392. Sov. 10th and 11th 1858 ; 3 Irv. 235 6 Hume i. 24, 25.— Alison i. 52. 144 HOMICroE. MuEDEKBT Many still more indirect cases may be imagined, TiTg Trom "'''" which yet must be held to be murders. Thus if a jailor COMMISSION OF deliberately and maliciously place a prisoner in the same A "WOT TTBi B. '' u 1. ±- CRIME. cell with a dangerous wild animal, or even with a Placing person raving and dangerous lunatic, he is guilty of murder if dangerouf ^^^ ^^ °f ^^'^ prisoner be sacrificed (1). Another case animal. may be supposed, that of a person OlegaUy and malici- wTOng ^ss-^ ously bringing it about that another shall be killed by a word, having \Yt\x& person in the discharge of the third person's duty. preyiously _ ^ ° th ai iT ordered sentry It IS easy to imagine such a case. If an officer who songivSig^'" bas conceived deadly malice against an individual wrong word. -^Jjq jg gu^bject to his orders, orders a sentry posted at a particular spot to shoot any one who cannot give the correct countersign, and then sends the object of his malice on a duty which will take him to the sentinel's 1 post, giving him a wrong word as the countersign ; un- doubtedly, if he be shot by the sentinel, his commander has most wickedly murdered him. Though the senti- nel's is here the innocent hand that does the deed, the officer is just as guilty as the man who mixes poison for another, and sends it to him as a wholesome medicine False swearing by the hauds of a Servant. The institutional writers have causing ^^^^ spoken of another case of this sort, that of one swearing person. falscly, and by his falsehood procuring the conviction and execution of an innocent person, but have given no very definite opinion upon it. Baron Hume seems to think it murder, while Sir Archibald Alison holds the con- trary (2). The great difficulty of supposiag such a case is, that by the law of Scotland no one can be convicted on the evidence of one witness only, without the additional evidence of other persons or circumstances, and it would therefore be very difficult to make out that the person executed had perished because of the false evidence of any iudividual. But take the case that all the Crown witnesses (except the official witnesses to the 1 Humei. 190.— Alison i. 73. 2 Hume i. 190, 191.— Alison i. 73. HOMICIDE. 145 prisoner's declaration, medical reports, and the like) are Mukdek by leagued together to swear falsely to obtain the convic- TuLTmo from tion of an innocent person on a charge of murder. A. commission op I ^^ o ANOTHER B. swears he saw him stooping over the murdered per- crime. son, and rifling his pockets, and that he saw the blood on his hands ; C. D. that he found a bloody knife hid in the wall near his house ; and E. F. that the accused confessed to him that he had done the deed. And the result of their combined evidence is that an innocent person is convicted and hanged. Such a case would seem to point to the soundness of Baron Hume's view, for it is scarcely possible to imagine a crime more horri- ble than this. It certainly has all the characteristics of the most diabolical murder ; and it is difficult to con- ceive any logical ground why it should not be held to be murder, like any other heinous wickedness which directly causes death. This, however, is mere matter of indi- vidual opinion, the case never having arisen in Scot- land (1). Taking the life of another in self-defence, that is, to Provocation.' save one's own life, will be spoken of afterwards, under the head of justifiable homicide,* but though there may not have been sufficient violence on the part of the deceased to enable the accused to maintain that he took his life in self-defence, still it may be sufficient to palliate his guilt. Following out the order already laid down, those cases of provocation will be spoken of here, which do not reduce the offence from murder to culpable homicide. Words of insult, however strong, Verbal abuse. will not form the slightest justification of a murderous attack (2). And the same holds of any mere insulting' or disgusting conduct, such as jostling, or tossing filth in aith?^™^ 1 One case mentioned by Baron diabolical plot aa that above sup- Hume (Daniel Nioolson and others, posed occurring in real life. — See i. 170, 171) may be referred to as More ii. 363. illustrating the possibility of such a 2 Hume i. 247. » Vide 161. K 1 46 HOMICIDE. Pbovocation. the face (1). Nor will provocation of a more serious kind reduce the offence to culpable homicide. That- the Blow from ^ hand. accuscd has received a blow with the open hand, or even with the clenched fist, forms no excuse for slaying Must be vio- ^j^g striker (2). To palliate such retaliation as causes lence causing \ / Jr reasonable death, there must be violence so extreme or continued, without the person attacked having the means of getting away, as to cause reasonable alarm of serious tion^not'^^^t ' injury to the person (3). There seems, however to be lesa in its form room here for a distinction. If there was provocation stronger ^ case necessary by a blow, and the method of the retaliation was not to constitute i • i j j.i j -m x murder. plainly murdcrous, then a murderous purpose will not so readily be presumed. For example, it was said above,* that repeated blows even with the fist, might infer a murderous intent. But it seems reasonable, in such a case, if the blows were in retaliation of a blow struck by the deceased, to require very strong evidence of continued and outrageous abuse before presuming a murderous purpose (4). Provocation no Provocation, though great, will not palliate guilt, if interval.* "^ ^^ interval have elapsed between the provocation and the retaliation. Thus, if A be struck by B, and pro- voked so that if A retaliated then and there, he might not be guilty of murder in killing B, this will not les- sen A's guilt, if, after they have parted, and when a sufiicient interval has elapsed to cool his rage, he track B on his road home, and deliberately shoot him from behind a hedge. Such cold-blooded revenge for 1 Hume i. 248, case of Aird a charge of Lord Meadowbank in there, and case of Hume in Note 1. the case of Jas. Boss, Inverness, —Alison i. 12. Sept. 9th 1826— "Law of England 2 Hume i. 223, ease of M'Millan " different from ours — a slight bodi- there. — ^WiU. Wright, H.C., Nov. "ly affront enough to palliate ; but 23d 1836; 1 Swin. 6 and Bell's "this rejected in Scotland." Notes 77. In Lord Wood's MSS. 3 Hume i. 247.— Alison i. 7, 20, 21. the following occurs in notes of 4 See Hume i. 262. • Vide 141, 142. HOMICIDB. ] 47 a ■wrong, however great, is nothing less than murder (1). Pkovocation. And the same -wlLL hold of taking the life of another on The mode of provocation, even though it be done immediately, if the exciude°de™*^ deed be so done as to display not mere excitement and ^^tfoV* ^™'°" rage, leading to dangerous violence, but a seeking for deadly vengeance. For example, if two persons come to blows, and the party provoked secretly draw a knife and stab with it from behind, or repeatedly, it will scarcely avail him to maintain that the offence is mitigated by the provocation (2). Again, it would certainly be murder, if a person, on provocation however great, were immediately to place poison in food or drink to kill another who had injured him. The defence of provocation is of this sort, — " Being greatly agitated " and excited, and alarmed by the violence of the " deceased, I lost control over myself, and took " his life, when my presence of mind had left me, " and without thought of what I was doing." But this can never apply to such a case as that above supposed, where, though the resolution be suddenly formed, it is yet deliberate and malignant in its character (3). It is not held a provocation sufficient to palliate the Killing tres- taking of the hfe of another, that he was trespassing, or f^feTLurder stealing, or attempting to steal (4). It is only in the uniesBinrea- case of crimes in themselves violent and dangerous that violence, the person aggrieved can be at all excused for proceed- ing to such extremities. Laying a spring-gun to shoot a poacher, or the plunderer of an orchard, is murder if death ensue (5). And the same would hold of shooting a thief caught in the act of stealing, unless the circum- stances were such as to have caused reasonable trepida- tion.* 1 Home i. 252, and cases of Bed- 2 Burnett 46, case of Marshall path: Macara: and Peter in Note there. 1. — Alison i. 8 to 10. — Joseph Alison 3 Hume i. 252. — Alison i. 9. , and Maxwell Alison, H.O., July 4 Hume i. 247. — Alison i. 21. 16th 1838'; 2 Swin. 167 and BeU's 6 Jas. Oraw, H.C., June 4th and Notes 77, 78. 18th 1827 ; Syme 188 and 210. • Vide 16i. 148 HOMICIDE. Provocation. Officer killed in executing warrant. Executing warrant erroneously. Officer killing unless threat- ened with very serious injury if he advance, commits murder. There is another case to be noticed, that of an oflScer of the law being killed while executing a warrant. It is, of course, in such a case no palliation that the officer was using violence to the accused, for this the ofiBcer is bound to do, if resisted (1). On the other hand, in the case of an of&cer executing a warrant upon a different person than the individual to whom it applies, or execut- ing a defective warrant, or arresting without proclaiming himself an of&cer, and the purpose of the arrest, or arresting beyond the jurisdiction of the magistrate issuing the warrant, the question whether murder is committed by resistance which causes his death, is one of circum- stances. Such errors and defects, though they may justify resistance, will not, taken by themselves, palliate the guilt of putting the officer to death. Certainly, if the irregularity was one unknown to the accused, he can- not plead that his resistance was based upon the ille- gality of the proceedings. But even if the irregularity were known to the accused, and pointed out by him to the officer, he will not be free from the guilt of murder if, on the officer endeavouring to execute the warrant, he at once put him to death. It would appear that the same rule must apply here as in the case of an attack by an ordinary individual ; the person attacked is not in any degree excusable in taking the life of the assailant, unless his conduct has been such as reasonably to excite serious apprehension of injury (2). An officer of the law,, though bound to go forward and execute a warrant, is inexcus- able if he kill the person to be arrested, unless he can show that he was actually subjected to, or threatened with very serious injury if he proceeded to carry out his warrant. Mere fear of being struck or beaten, will not palliate his offence in the least (3). Nor will it palliate 1 Alison i. 24. 2 Hume i. 250, 251, and case of O'Neal there. See also i. 398.— Alison i. 25, 26, 27. 3 Hume i. 201, case of Gordon there. — ^i. 202, case of Fife there. — Alison i. 31, case of Maclean there. HOMICIDE. 149 the conduct of an officer in killing a person against whom Pkovocation. he holds a warrant, that the person was fleeing, and likely Question to escape. Whether in the case of all criminal offences may wu a greater privilege is to he extended to the officer than es™ping in the ordinary case, i.e., whether he is to he allowed to kill one who is merely fleeing from justice, is matter of conjecture. Baron Hume seems to think that there is a strong distinction to be drawn between criminal and civil processes — the one being for the vindication of public justice ; and the other only for the protection and enforcement of individual rights. — " That which justifies " the homicide in any case of resistance to a criminal " warrant is the attempt, with probable success, no " matter with what weapons, to disappoint the course of " public justice, and the man's contemptuous defiance of " the powers of the State in this interesting article of " public order " (1). Sir Archibald Alison, on the other hand, seems to think that this " extraordinary privilege " of killing on mere flight is confined, even if it be there " established, to capital cases " (2), a distinction between higher and lower crimes which Baron Hume considers " pernicious," and " impracticable " (3). All that can be said on the matter is that no case has as yet been tried by which the applicability of such a rule even to capital cases has been established, all those quoted by the institu- tional writers being cases in which there was violent manifestation of resistance. If an officer in executing an illegal warrant, or in officer killing executing a legal warrant in an illegal manner, or on a executkig'™ ^ wrong person, kiU the person he is endeavouring to cap- warrant. ture, he may incur the pains of murder unless the irregularity or illegality be such that he could not reason- ably he expected to know it (4). Soldiers or sailors in the Eoyal service have many Koyai forces privileges in taking life in the execution of their duty, when^'oiT duty. 1 Hume 1 199. 3 Hume i. 199. 2 Alison i. 36, 37. 4 Hume i. 200.— Alison i. 34, 35. 150 HOMICroE. Pkovocation. which will be afterwards spoken of* But it is only when on duty as servants of the State that their position is different from that of ordinary citizens. And, therefore, if when not on duty, or not under the orders of superiors, they take duties upon themselves, their conduct will be judged of regardless of their being soldiers or sailors (1). And of course even when on duty it is not when merely verbally insulted, or even pelted with missiles not danger- Eoyal forces when on duty not justified lis previously ous, such as mud, but only when seriously attacked or threatened, that they witl be justified in inflicting death (2). The punishment of murder is death and confiscation to the Crown of the whole movable estate of the convict. The sentence also ordains him to befed on bread and water only, in the interval allowed him between the trial and the execution, but it is not usual to enforce this part of the judgment. menaced. PUNISHMEJST OF MUEDEK. Culpable Homicide. Intentional killing. Unlawful act causing death. Negligence. II. Culpable Homicide is the name applied in law to cases where the death of a person is caused, or materi- ally accelerated by the improper conduct of another, and where the guilt does not come up to the crime of murder (3). Culpable homicide is of three kinds : Pirst,the intentional kUlingof another in circumstances implying neither murder on the one hand, nor justifi- able homicide on the other (4). Second, homicide by the doing of any unlawful act, or any rash and careless act, from which death results, though not foreseen or probable (5). Third, homicide resulting from negligence or rashness in the performance of lawful duty (6). First, where the killing is intentional it is reduced 1 Burnett 81, case of Davies and Wiltshire there. — Alison i. 39 to 45 passim^ — ^i- 45. 2 Hume i. 205 to 213 passim. 3 Every charge of murder is held to include a charge of culpable homicide, and the Jury, if they see cause, may find that culpable homi- cide only has been committed. 4 Hume i. 239.— AEson i. 92, 100. 5 Hume i. 234.— Alisoni. 94 to 100. 6 Humei- 233.— Alisoni.il3 to 126. Fi(fe.l62, 163. HOMICIDE. 151 to culpable homicide only by the facts being such, that Cclpable the accused is to some extent excusable for what he has "y ^teotion- done. This may happen in two ways, either where a al killimo. person exceeds the bounds of moderation in retaliation Exceeding for an injury inflicted, or acts rashly in killing to pre- moderation in vent an injury which he believes is about to be inflicted "^ * '°"' , on himself : or where there is rash excess of duty on the part of one entitled to inflict death, if it be necessary to do so in the fulfilment of his duty. As regards the former of these the theory of the law is, that although the accused has exceeded the bounds of moderation in retaliating for the injuries committed by the deceased, or in killing him to prevent injuries he was about to inflict, still the provocation was such that no purely wicked, and there- fore no murderous intent can be presumed. But it will Beasonabie not suffice that the accused was in a passion, it must be threats or brought up to this, that his conduct was the result of ^^'^^'^'^ actual injury or alarming threats producing reasonable perturbation (1). And in this is included, on sound principle, the case of a person taking the life of a house- Killing house- breaker ; for, although this may not be justifiable homicide in every ease (2), still it is plain that the lives of the inhabi- tants of a house must be held to be in real danger when a determined and violent robber is attempting to break in, or has actually effected an entrance. Thus where a house-breaker was shot whUe attempting to escape by a window, it was laid down that if the person who fired had at the time reasonable ground to apprehend danger, or to believe that the property could not otherwise be protected, the act was justifiable, but, if not, the act was culpable homicide of an unaggravated kind (3). 1 Hnme i. 229, 247, 248. — Alison charge in this case, Lord Moncrieff i. 92, 93, 100, 101. — John Forrest, said, — " Prisoner had got a double Glasgow, Jan. 4th 1837 ; 1 Swin. " barrelled gun, and two men in the 404 (Lord Moncrieff's charge). " house with him ; and the man 2 Hume i. 220, 221. — Alison i. 104. " killed was struggling to get away 3 Edward Lane, Dumfries, Sept. "half out at a window, and although 1830 ; Bell's Notes 77. In his " he gave no answer" (when ao- 152 HOMICIDE. Culpable The Only exception, and a most proper one it is, to INTENTIONAL thc iuIb that the person killing must be in reasonable KILLING. dread in order to reduce his crime to culpable homicide, S™seduc™o'f ^^ ^^^ ^^^^ of ^ husband instantly killing the seducer of wife. his wife, when caught in the act of adultery (1). Killing without It is culpable homicide to kill another, where the ^cafe^or when slayer has himself been put in absolute danger of his danger past, ijfg^ ^[f j^g j^g^yg j^q^ ^gg^ mcaus of cscape or rescue open to him (2), or if the danger have been at an end before Killing in self- he did the deed (3). There is one situation in which attack of de- ^n act of homicido which would have been justifiable in atoirt by™o?''' itself, must be held culpable homicide in consequence of oused. the danger to which the accused was exposed by the violence of the deceased, having been to some extent provoked by the accused himself. For example, if A commit a trifling assault upon B, whereupon B draw his sword and attack A, and press him so hard that to save his own life A has to kill B, here as he originated the violence of B, he must be held responsible for the con- sequences (4). Baron Hume even inclines to the opinion that if the accused brought the attack of the deceased upon himself by using foul language towards him, that this should render the accused liable to punishment, where he was compelled to kill to save himself (5). cused called to him) "he was there, and case of Shank in note 3. " retreating — doing aU he could to Professor More seems to put the "getaway. This completely proved. matter too favourably for the hus- " — Was there then cause for band, when he speaks of the cir- " alarm? Was there any necessity cumstances justifying the killing. " for taking away lite ? Could he More ii. 366. " even have had difficulty of appre- 2 Hume i. 226, and oases of Bruce "bending him? — Agitation no and others : and M'Millan there. — " doubt to be greatly allowed for. Alison i. 102, 103, 133. " But still the question is whether 3 Hume i. 218, 225. Of course if " he was so placed that he was jus- the danger has been long past at the " tifiably alarmed to the extent of time, the act may be murder. " entitling him to fire." (Lord 4 Hume i. 232, and case of the Wood's MSS.) Sir Archibald Alison Master of Tarbat and others there. (i. 105) erroneously quotes this case — Alison i. 18. under the name of George Scott. 5 Hume i. 233. 1 Hume i. 215, case of Christie HOMICIDE. 153 The other case of culpable homicide where the taking Culpable of life is intentional, is that of a person exceeding his SjTENmoNAL duty. Such cases amount either to murder or culpable homicide, according to the extent of recklessness ^^^'"'^'^"^ displayed in the act done. Take the case of an of&cer Eashiy firing in charge of prisoners, who is ordered to fire on any one °" prisoners, who attempts to escape. If he order those under him to fire on the prisoners in circumstances which indicate unnecessary haste and rashness, though not a murderous intent, he will be guilty of culpable homicide (1). Magistrates too hastily giving orders to fire on a mob, or Or firing on of&cers of the law rashly kOling on resistance of war- ^"son resist- rant, or revenue officers exceeding their duty in killing '"s arrest, smugglers, are instances of culpable homicide of this class (2). Second, a person who inflicts a minor injury upon Culpable another, through vice or recklessness, which has a MraoK Swubt. fatal result, is guilty of culpable homicide, although the death was not contemplated or probable (3). Cases of this sort are innumerable. From violent includes every though not murderous assault, down to the slightest "^^ ° *^^*'^'- blow, which causes the person struck to fall, so that his skull is fractured, there are endless situations where death ensues, and when the degrees of culpability vary (4). There may also be many cases where there is 1 Burnett 77, case of Maxwell Bell's Notes 78 (a fair fight with there. — 79, case of Inglls there. — fists). — John Jones and Edward Alison i. 43, 44. Malone, H.C., June 22d 1840 ; 2 2 Hume i. 216, case of Chalmers Swin. 509 (assault). — Dundaa and others there.— Alison i. 110. M'Einer, H.C., July 24th 1844; 2 3 Hume i. 234, and cases of Mac- Broun 262 (assault). — Margaret donald : and Irving in note 1, and Shiells or Fletcher, H.C., Nov. 7th Cameron in note 2. — i. 235, cases 1846 ; Ark. 171 (assault). — Mar- of Mason : and Bathgate there, and garet M'Millan or Shearer, H.O., cases of Wood: and Neal in Jan. 6th 1851; J. Shaw 468 (assault), note 2 and *. —Bob. Bruce, B.C., Feb. 19th 1866 ; 4 Hume i. 234, 235,passim. — Ali- 2 Irv. 65 (assault). — Peter Jafferson son i. 97, 98, passim. The follow- and Geo. Forbes, Perth, April ing cases may be referred to as 22d 1848; Ark. 464 (assault and illustrations: — Jas. Grace, H.C., throwing down). — Bob; Vance, Dec. 14th 1836; 1 Swin. 14 and Glasgow, Mar. 23d 1849; J. Shaw 154 HOMICIDB. Culpable homicide BY MmOB INJURY. Desertion of children in un- aggravated circumstances. Administering spirits or drugs. BecklesB use of firearms. Neglect of per- sons by cus- todier. no violence, but where the act done is an improper one. The woman who deserts her child, even in circumstances of no apparent danger, is guilty of culpable homicide, if it accidentally perish in consequence (] ). It is culpable homicide if for a frolic something likely to sicken the person taking it be mixed with food or drink and death ensue, though the substance administered be not in itself dangerous to life (2). And the same would hold of giving a child (3), or a lunatic (4), a large quantity of intoxicat- ing liquor. In the same way it is culpable homicide if a person improperly give laudanum to a child to put it to sleep, and the quantity given cause death (5). Such cases also as culpable and reckless use of fire-arms (6), or setting off of fire-works (7), or the like, from which death results are cases of culpable homicide. Cases have also occurred in which culpable neglect or cruel conduct by those in charge of young (8), or infirm persons (9), or paupers (10), causing death, has been held to be relevantly charged as culpable homicide. 211 (assault and throwing down). — Isabella Brodie, H.O., Mar. 12th 1846 ; Ark. 45 (throwing down). — Bob. M'Anally, Glasgow, April 27th 1836 ; 1 Swin. 210 and Bell's Notes 78 (assault in retaliation). — John M'Laughlin, H.C., Feb. 17th 1845; 2 Broun 387 (sudden blow in re- taliation). 1 Hume i. 235, 236, and 237 pas- sim. — Alison i. 99. — More ii. 369. 2 Hume i. 237 and case of Inglis and others there. — Alison i. 99. 3 Hume i. 237 and case of PhiKp in note a. — Alison i. 99. 4 Neil Lamont, Perth, Sept. 1837 (Indictment, Adv. Lib. Coll.) 5 Jean Crawford, H.C., Dec. 6th 1847 ; Ark. 394.— Elizabeth Hamil- ton, H.C., Noif. 9th 1867; 2 Irv. 738. 6 Hume i. 192 : cases of Cowan : and Buchanan in note 2. — i. 193, case of Henderson there. — John M'Bryde, H.C., June 10th 1843; 1 Broun 558 John Smith, Inverness, April 28th 1858 ; 3 Irv. 72. (In this latter case the pistol was supposed to be loaded only with powder and wadding, and the injury was caused by a pin that had accidentally got into the pistol). 7 Geo. Wood, jun., and Alex. Bang, Aberdeen, April 15th 1842; 1 Broun 262 and BeU's Notes 71. 8 Catherine M'Gavin, H C, May 11th 1846 ; Ark. 67.— Susan Hamil- ton or Kain, Ayr, Oct. 14th 1846 (Lord Justice Clerk Hope's MS. Notes to Hume). 9 Peter M'Manimy and Peter Higgans, H.O., June 28th 1847; Ark. 821.— George Fay, Glasgow, Dec. 27th 1847 ; Ark. 397. 10 Will. Hardie, Stirling, April 10th 1847; Ark. 247. HOMICIDE. 155 It is perfectly impossible to give any emimeration of Culpable the cases of culpable homicide of this sort. Suf&ce it to by mXr say that however slight the injury, and however much ™J^"'^' ground there may be to hold that but for some previously Any blame existing disease or weakness, it would have had no bad g^t result, the person inflicting it must stOl answer for the consequences, the amount of punishment due being the only question which can be affected by such considera- tions. "Any blame " constitutes the crime (1). Cases may also b.e supposed of a very indirect charac- indirect cases. ter, which stHl amount to culpable homicide. A husband ^^o^causJ^' attacks his wife violently when she has a child in her ■^^^^'° m.]vx& arms, in consequence of which she falls and the child is killed ; this is undoubtedly culpable homicide. It has even been held that if the violence in such a case is so great as to compel the woman to squeeze the chUd so tightly in her arms as to kill it, that the person commit- ting the violence is guilty of culpable homicide (2). And Flogging horse in the same way if a person were to flog the horse on s^n^^g?"^'' which another was riding, so that it ran off and kUled the rider, he would be guilty of culpable homicide (3). It might even be held culpable homicide, if in conse- quence of alarm created by' the violence of the accused, the person himself were to do some act from which his death resulted. For example, if a person when pursued pg^son in ter- by another armed with a murderous weapon along a pier, ror of violence ., ,. J., a ^ throwing him- were, in terror, and seeing no other means of escape, to self into water, throw himself into the water, and thus were drowned such a case would probably be heldone of culpable homicide (4). Third, culpable homicide may result from neglect of proper precautions, or moderation in the doing of 1 Eob. M'Anally, Glasgow, April 643 and Bell's Notes 88, where this 27th 1836 ; 1 Swin. 210 and BeU's was held to be an assault. Notes77(LordMaotenzie's charge). 4 See Hume i. 235, 236: case of 2 Hugh Mitchell, H.O., Nov. 7th Graham there — John Robertson, 1856; 2Irv. 488. Perth, May 8th 1834; 1 Irv. 469 3 See the case of 0avid Keay, (Lord Handyside's opinion). Stirling, Sept. 16th 1837; 1 Swin. 156 HOMICIDE. Cdlpable homicide by neglect of duty ok pkbcaution. Any substan- tial blame sufficient. Excess of corporal punishment. Management of vehicles. Bailways. what is in itself legal, or from general careless- ness and negligence of duty. Here, also, the cases that have already happened are far outnumbered by those that may be supposed. They include every fatal accident which is not purely fortuitous, but which results from some blameable conduct on the part of another. The same rule applies here as in the case of direct injury ; if there be blame " at aU," there is a good charge of culpable homicide (1). A short summary of the cases which have occurred in practice will probably afford the best commentary on this branch of the sub- ject. As regards culpable homicide by exceeding moderation in the performance of duty, almost the only case which occurs in practice, is that of a person entitled to inflict corporal chastisement, causing death in doing so (2). Cases of culpable negligence or rashness are much more numerous. If death result from fault or negligence in the management of vehicles, culpable homicide is committed. And this holds whether the death be caused by rash driving (3), or by drivers leav- ing their vehicles without any one to take charge of them, or entrusting the reins to an unskilled person (4), or the Hke. So, railway o£B.cials are responsible for 1 George Murray, Aberdeen, Oct. 21st 1840 ; Bell's Notes 77. 2 Kume i. 237, 238, and case of Carmichael there. — More ii. 369. — Dar. Patterson, H.C., July 17t.h 1838 ; 2 Swin. 175 and Bell's Notes 79. 3 Hume i. 192, note 2 : several oases. — Alison i. 118, 119: several cases besides those in Hume. — ^More ii. 369.— Adam Stoddart, Jan. llth 1836 ; Bell's Notes 73.^Jas. Mathe- son, H.C., Nov. 20th 1837; 1 Swin. 693 and Bell's Notes 70.— WilL Messon, Perth, April 29th 1841; 2 Swin. 548.— Will. Trotter, Oct. 5th 1842 ; Bell's Notes 74.— John Boss and others, Inverness, April 14th 1847 ; Ark. 258 — Bob. Lonie4 Perth, Sept. 29th 1862 ; 4 Irv. 204 and 35 Sc. Jur. 2. 4 Hume i. 192 : case of Jackson in note 2. — Arch. Gowans, Glasgow, Jan. 1831; Bell's Notes 70.— Adam Stoddart, Jan. 11th 1836; Bell's Notes 73. — John M Arthur, Stirling, April 1841 ; Bell's Notes 74.— Alex. Smith, Ayr, April 11th 1842; 1 Broun 220. — Geo. Wood jun. and Alex. King, Aberdeen, April 16th 1842 ; 1 Broun 262 and Bell's Notes 71. — John Boss and others, Inver- ness, April 14th 1847 ; Ark. 258. HOMICIDE. 157 accidents caused by culpable carelessness (1). And Culpable those in charge of vessels or boats are answerable, if by by neglect their fault life is lost, whether the culpable conduct o=?'»uTyoR cause loss of life to those on board the vessel itself (2), ^.f^^l^I^^ or to persons in other vessels or boats with which they come into collision (3). The same rule applies in all operations with machinery, such as the management of j^ , . coal-pit engines or lifts, cranes, diving-bells, and similar apparatus (4), or operations with dangerous materials, as Blasting. 1 James Boyd, H.C., Jan. 7th 1842; 1 Broun 7 and Bell's Notes 71 (driving at excessive speed past level crossing). — James Cooper, Glasgow, Sept. 19tli 1842 ; 1 Broun 389 and Bell's Notes 73 (pointsman not having switches in order). — Will. Baton and Eichard M'Nab, H.C., Nov. 3d, 4th, and 8th 1845; 2 Broun 525 (superintendent of locomotives allovring defective en- gine to he used and driver using it). ^Chas. Ormond and Will. Wylie, Glasgow, May 11th 1848 ; Ark. 483 (careless coupling). — John M'Don- ald and others, H.O., Mar. 24th 1853 ; 1 Irv. 164 (neglect to signal, and neglect to clear line when fast train due) — Will. Lyall and Alex. Eamsay, H.C, Mar. 25th 1853; 1 Irv.189 (improper starting of train). — Thos. Smith, H.C, July 23d 1853; 1 Irv. 271 (rash driving of train following another train, and neglect of signals. This was a case of injury only, but if death had resulted it would have been culpable homicide). — Thos. K. Eo- botham and others, H.C, Mar. 15th to 19th 1855 ; 2 Irv. 89 and 27 Sc. Jur. 338 (neglect to issue proper re- gulations — improper starting of trains in rapid succession). — Will. M'Intosh and Will. Wilson, H.C, -Mar. 17th to 19th 1855 ; 2 Irv. 136 (improper starting of train). — John Latto, H.C., Nov. 9th 1857 ; 2 Irv. 732 (signalling train to advance when points not open — a case of injury only). — Alex. Eobertson, H.C., Feb. 8th 1859; 3 Irv. 328 (neglect of signal). — Will. Dudley^ H.C, Feb. 15th 1864 ; 4 Irv. 468 and 36Sc. Jur. 332(driver leaving engine and neglecting precautions — part of the indictment wasf ound irrelevant). 2 John Sutherland, Mar. 15th 1838; Bell's Notes 74 (allowing a, boat to be overloaded). — • Thoa. Henderson and others, H.C, Aug, 29th 1850; J. Shaw ^94 (master improperly leaving deck, and mate running vessel on rock by taking a short course to save time). 3 Hume i. 193, case of M'Innes, in note a. — Alison i. 125, 126 and cases of Smith and others: and Struthers there. — Ezekiel M'Haffie, Court of Admiralty, Nov. 26th 1827 ; Syme Appx. 3 p. 38.— WiU. M'Alia- ter and others, H.C, Nov. 20th 1837 ; 1 Swin. 587.— Eob. M'Lean, Glasgow, Sept. 21st 1842 ; 1 Broun 416. — Angus M'Pherson and John Stewart, Inverness, Sept. 24th 1861 ; 4 Irv. 85. 4 Eob. Toung, H.C, May 20th 1839 ; 2 Swin. 376 and Bell's Notes 73 (diving bell). — Eob. Eouatt, Glasgow, Sept. SOth 1862 ; 1 Irv. 79 (coal-pit machinery). — Geo. S. Stenhouse and Arch. M'Kay, H.C, Nov. 8th 1852 ; 1 Irv. 94 (defective chain in ironstone pit). 158 HOMICIDE. Culpable homicidf bt KEGLKCT OP DUTY OE PEECAUTION. Throwing down rubbish. Felling trees. Defective building, embanMng, (fee. Sale of drugs. Administering an overdose of drug. Folding up a bed when child was in it in blasting (1). And it applies also in cases where an ordinary operation requires special caution, such as throwing down materials from a high part of a building in a public place, or felling trees close to a public road (2). Further, the same principle extends to all cases where, by defective construction, contractors for railways, buildings, bridges,, or similar works, cause loss of life by negligence or mismanagement (3). As regards the sale of drugs, it has been held that the druggist who culpably entrusts the sale of his goods to an unskilful person, and the person who, being ignorant in such matters, undertakes to sell drugs without proper instructions, are both guilty of culpable homicide if death result (4). And on the same principle, where a person employed to sell drugs, but not to dispense them, prescribed and administered an excessive dose of poison- ous medicine which caused death, he was held guilty of culpable homicide (5). Lastly, a case may be noticed particularly as illustra^ tive of the small amount of blame which may constitute culpable homicide. The accused was charged with folding up a bed in which a child was lying and causing its death. The Jury found the accused "guilty of "culpable homicide as libelled, with this explanation 1 Alison i. 116 : case of Johnston and Webster there. — John Drysdale and others, H.C, March 13th 1848 ; Ark. 440 Jas. Auld, Aberdeen, Sept. 23d 1866; 2 Irv. 459 and 29 So. Jur. 3. 2 Hume i. 192 and case of Gra- ham in note 2. 3 Hugh M'Lure and others, H.C., Mar. 16th 1848 ; Ark. 448 (bad con- struction of railway and bridge). — Jas. Kirkpatrick and Bob. Stewart, Dumfries, Sept. 1840 ; Bell's Notes 71 (bank of earth giving way) — John Wilson, Glasgow, Sept. 30th 1852 ; 1 Irv. 84 (insufficient building). 1 Eob. Henderson and Will. Law- son, H.O., June 13th 1842 ; I Broun 860 and Bell's Notes 71 and 76. The case was certified from the Cir- cuit Court at Perth by Lords Mon- orieff and Cockburn. Lord Cock- bum's MSS. contains the following note: — "We certified on the score " of the admitted novelty of the " case, but there never was a clearer " case of relevancy." 6 Edmund P. Wheatly, Glasgow, May 6th 1853; 1 Irv. 225.— See also Hume i. 193, 194. HOMICIDE. 159 " that she did not know when she folded up the bed that Culpable 'the child was in it, and that she did not give the thought by HOMIGItoE HBGLECT " she ought to have done before folding up the bed." "^ "oIution. This was held to be a good verdict of culpable homi- cide (1). In reference to all cases of culpable homicide such as The act done those which have now been referred to, it is not neces- sole cause of sary that the act of the accused should have been the only ^^*'''- cause of the injury. If an injury result from the combined joiutfauu effect of the separate faults of several persons, each of them is responsible for the injury (2). "Where A allowed Driver loiter- his horse and cart to go along the road while he loitered gjfrtii'n S""^ behind, and B drove furiously past A's cart, startling A's torse. horse and making it run off, in consequence of which a person was kiUed by A's cart, both were indicted to- gether (3). Again, if a driver gives the reins to an Driver giving unskilled person, both may be charged with causing the sSied^persoS' death of any one who is run over in consequence (4). And in case of the druggist above noticed (5), it was Druggist em- expressly held that both the druggist who employed an an^^^aistotr ignorant person, and that person himself, were responsi- ble for death resulting from the sale of one drug for an- other by mistake. It is further to be observed that the death must result Death must re- directly — partially it may be, but etiU directly — from the from'^fauit!^ culpa of the accused. It is not sufficient, for example, that the deceased came into the position in which his life was lost by the act of the accused, unless it was his being in that position which caused the accident. There Accused must must be some connection between the accused as cause, "^"^^ accident. and the occurrence as effect. In one case where an accident happened on a railway, by a train going off the 1 Williamina Sutherland, Inver- ness, April 14th 18i7 ; Ark. 258. ness, Sept. 18th 1866 ; 2 Irv. 455. 4 Arch. Growansi Glasgow, Jan. 2 JohnDrysdale and others, H.C, 1831; Bell's Notes 70. March is'th 1848 ; Ark. 440, (Lord 6 Bob. Henderson and Will. Justice Clerk Hope's charge.) Lawson, H.C., June 13th 1842 ; 1 3 John Jloss and others, Inver- Broun 360 and Bell's Notes 71. 160 HOMICIDE. Culpable rails, but no blame was attributable to the driver for this BT NEGLECT occurreuce, it was attempted to charge him with culpa- OF DUTY OR \)Iq homicide because a person whom he had improperly PRECAUTION. ^ . allowed to ride on the engine, was killed by the accident. Now here the accused was in no way the cause of the occurrence. He was blameable in taking the deceased on the engine, but that faull did not in any way contri- bute to cause the train to go off the rails. The charge was abandoned without a judgment being pronounced, but the court are understood to have been of opinion Butacousednot that it was irrelevant (1). The converse of this rule empt because holds also. If an accidcut be caused by the fault of the rightbf be^"^ accused, and death result, it will not necessarily exoner- ■where he was. ate him of a charge of culpable homicide that the person killed had no right to be where he was. Thus, where a person who was improperly riding on a train of waggons by which no one had a right to travel except the guard, was killed by the fault of the person in charge of an engine which was used for drawing the waggons up an inclined plane, the argument that as the deceased had no right to be there, the accused was not responsible for his death, was overruled (2). No sufficient It is uo sufficient excuse for the accused in a case of accused ob*eyed Culpable homicide, that in doing what he did he obeyed orders of his the Orders of his superiors, if that which was done was Superior ans- plainly unsafe and likely to lead to injury (3). On the werabieifhedo other hand, if an operation be in itself dangerous, re- not personally ,^ ^ o ' superintend quiring care and skilful supervision, a contractor may be operations. guHty of culpable homicide if he allow his subordinates to act unskilfully and rashly, and neglect to exercise oversight and to direct them how to proceed properly (4). 1 Will. Gray, H.C., Nov. 21st E.G., Not. 3d, 4th, and 8th 1845; 1836 ; 1 Swin. 328 and Bell's Notes 2 Broun 626, (Lord Justice Clerk 72. — See also John M'Niool, May Hope's charge). 18th 1835 ; Bell's Notes 71. 4 Jas. Kirkpatriok and Rob. 2 Will. Laird, Perth, Sept. 17th Stewart, Dumfries, Sept. 1840; 1833 ; 6 So. Jur. 42. Bell's Notes 71.— John Drysdale, 3 Jas. Boyd, H.C., Jan. 7th 1842 ; and others, H.C, March 13th 1848 ; 1 Broun 7 (Lord Moncrieff's charge). Ark. 440, (Lord Justice Clerk — Will. Baton and Eioh. M'Nah, Hope's charge.) HOMICIDE. 161 In conclusion on this subject it may be noticed that culpable while in such cases, the question whether the accused negleSTof^^ has infringed regulations or bye-laws is of importance in ^^'^ °^ ''^^- estimating the amount of culpability (1), it does not 7-^ — '■ — ;— 11. ■/"./" Intrmgement lollow that he is to be free from punishment because he ofbye-iaws&c, has~ not infringed any such rules. Regulations &c., of estimating' oS- this sort, even though made by statute, do not abrogate P^i^'ii'y- Adherence to the common law, and cannot " render innocent every bye-laws, &o., " omission of the requisite consideration for the safety of ^riiy°6xoner-" " others," which does not happen to be embraced within »*»■ them (2). The punishment of culpable homicide is either penal Potishment ..1 . . , , . 1 ,1 OF CULPABLE servitude or imprisonment, and in cases where the homicide. culpability is very slight, a fine is sometimes imposed in lieu of, or in addition to, a short term of imprisonment. Justifiable homicide is limited in law to a small number Justifiable of cases. The Judge who, having jurisdiction in capital carrying out cases, sentences a prisoner to death, and the magistrates i^s*> sentence and officials who, acting under a proper warrant, carry out the sentence without wilful deviation from it, commit justifiable homicide (3). And such deviations as are imposed by circumstances will not be held criminal. For example, if a mob tear down the gibbet, the magis- trate will be justified in hanging his prisoner at the most convenient spot he can find (4). Magistrates commit suppressing justifiable homicide when they are obliged to adopt strong "°'" measures to repress riot and restore order, and death results to any one (5). The general rule is that where a mob commits, or plainly threatens to commit, such violence as shall endanger life or property, the magis- trate is bound to quell the riot, and where his authority 1 Thoa. Houston andJas. E wing, Lord Moncreiff.) Glasgow, April 23d 1847 ; Ark. 252 3 Hume i. 19S, 196, 197.— Alison (Indictment). — Jas, Auld, Aberdeen, i. 127. Sept. 23d 18S6 ; 2 Irv. 459 and 29 4 Hume i. 197.— Alison i. 128. Sc. Jur. 3. 6 Hume i. 197.— Alison i. 47.— 2 Will. Trotter, Jedburgh, Oct. More ii. 368. 6th 1842; BeU's Notes 74, (per 1G2 HOMICIDE. Justifiable is resisted, to maintain it by the strongest measures. In • addition to this duty at common law, it is enacted hy statute, that where a riotous mob is assembled, although it have not yet done any act of violence, the magistrate who, after the reading of the Eiot Act, and the lapse of an hour to give the mob time to disperse, proceeds to disperse it by force, commits justifiable homicide, if any of the mob perish. And if the reading of the act be Officer killing forcibly prevented, the rule is the same (1). An officer on resistance to , , ,. j ■ -i ^ i_ -^ • i.-n \.^ •warrant. holding an ex-facie legal warrant commits justifiable homicide if he kill a person violentlyresisting,or those who aid him in violently resisting execution of the warrant, or seriously threatening the life of the officer if he advance to •execute it (2). The officer will not be held responsible for irregularities of which he could not by ordinary attention be aware ; e.g. an officer who, in arresting on an English warrant duly endorsed, kills on resistance, cannot be held responsible for the illegality of the original English war- rant. The rules which are applicable to the officer, include HiUu/on order ^'•^ lawful Concurrents. Soldiers and sailors on duty are or in defence of exempt from blame if they kill in obedience to orders from an officer or magistrate, except in a very flagrant case of illegality. Also where they are left in any situa- tion to act on their own responsibility, and they keep within the rules of the service to which they belong, they are not blameable if death result (3). Where a soldier is ordered to keep a post, he is not obliged to wait until he has been actually attacked before he fires. If a number of armed persons advance in spite of his 1 Act 1 Geo. i. c. 5. — ^Hnme 1. 197. there. — ^i. 207, cases of M'Adam and — Alison i. 128 to 130. Long : Ha-wkins : and M'Farlane 2 Hume i. 197, 198, case of Gillea- and Pirmin there. — i. 208, case of pie and others there. — i. 200, 201, Wood'west there, and case of Lloyd case of Gordon and others there. in note 1. — Alison i. 39, 40, 41. — — i. 202, cases of Fife : and Simpson Bob. Ha^wton and Will. Parker, H.C., and others there.— Alison i. 29, 131. July 15th 1861 ; 4 Irv. 68 and 33 3 Hume i. 205, 206, and oases of So- Jur. 646 (Lord Justice General Wallace : and Willhouse and others M'Neil's charge). HOMICIDE. Ig3 remonstrances, and attack or seriously menace him, he Justifiable is quite entitled to fire on them. In like manner, if ^^^"^^- a vessel is chased at sea hya royal ship or boat, or revenue cutter, and refuses to bring to on the usual signals, it is lawful to fire into her. Where soldiers are called Duration of out, the plea of duty, so far as available, commences Si^caseof^^ from the moment they are put under arms, and does not soldiers, cease till they have placed their arms in safety, for as long as they are under arms, there is an absolute duty to protect the arms from capture (1). Perhaps one of the best instances of this is a case where a sentinel was ordered by a sergeant not to fire, but to leave his post, and make off. Being pursued and pressed by armed men, he turned and fired. It was laid down from the Bench that, being off duty, the case must be considered as that of an ordi- nary individual attacked. But this ruling may be con- sidered doubtful. The soldier was only off duty as regarded maintaining his post. He was clearly on duty as regarded the protection of his arms until they were placed in safety. And no order of his sergeant could free him from his primary duty to save his arms from capture (2). Any individual, who is murderously attacked by Self-defence. another, is justified in taking the assailant's life upon the spot to save himself (3), provided his alarm is reason- able (4). And the same principle applies to the case of Preventing a person preventing the murder of another, if it cannot ^thra-."* be done otherwise than by killing the assailant (5). Nor is it necessarj' that the deceased should have struck any mortal blow. Undoubtedly, if A, from a little distance, see B on the ground, and C with his knife uplifted to 1 Hume i. 213— Alison i. 46. Glasgow, April 27tli 1836 ; 1 Swin. 2 Hume i. 208, case of Dreghom 210. (Lord Mackenzie's charge.) in note 1. — ^Alison i. 45. — Burnett 4 Hume i. 224, and case of Pretis 82. there. 3 Act 1661, c. 22.— Hume i. 223.— 6 Hume i. 218.— Alison i. 133. Alison i. 132, 133.— Bob. M'Anally, 164 HOMICIDE. Justifiable stab Mm, A is justified in shooting C, although he might HOMICIDE. not be so, were he close enough to grasp C's hand, and Killing so prevent the blow from falling. It is lawful to kill a ravisher. ravisher, if this become necessary to prevent him from fulfilling his purpose. And the right to do so is not confined to the woman attacked. Any one who is with the woman is justified in killing those who attempt to ravish her, if the rape cannot otherwise be prevented (1). Killing robber. All depredations on property, made or attempted, if accompanied by violence, justify the putting to death of the assailant (2). A violent robber, on the highway, or a housebreaker endeavouring to enter a house, or found in it, may lawfully be killed. But this is only allowable when violence is actually being attempted, not when it is in mere preparation, or at an end by the flight of the offender. The danger must be real and imminent. It is not justifiable to shoot a person merely preparing to do a deed of violence, or hiding after its perpetration. In cases of housebreaking, the danger is presumed to be imminent by night, and by statute the killing of a housebreaker at night is pronounced to be justifiable. In the daytime more caution is requisite, but still the circumstances may be such as to make the homicide Question justifiable (3). Lastly, Baron Hume indicates an opinion eeoaptag witb ^^^^ t^^sre might possibly be cases in which, although booty may be there was no violence on the part of the thief, it might be justifiable to put him to death. He puts the case of a person, in a remote place, finding a thief in the act of riding off on a horse which he has stolen, and who, when called on to stop, continues his flight (4). It is difficult to concur in the learned author's opinion, that there is " no sound law which should hinder him from " saving his property in this necessity, though at the 1 Hume i. 218. — Alison i. 135. — More ii. 367. More ii. 367, 368, 3 Hume i. 221.— Alison i. 138. 2 Act 1661, c. 22.— Hume i. 217, 4 Hume i. 222. 218, 221.— Alison i. 136, 137, 138.— ATTEMPT TO MURDER. 155 HOMICIDK. " expense of the felon's life," (1). Such a doctrine seems Justifiable to go heyond the true principle which should regulate all discussion on the justifiability or culpability of an act of hoinicide on provocation, viz., whether there was a reasonable fear, not of an offence against property, but of serious bodily injury, whether in protecting property or otherwise. It is personal danger, not danger of mere patrimonial loss, which justifies homicide. ATTEMPT TO MUEDER. LAW. In cases of attempt to murder by violence, it is usual At commobt to charge the offence under the name of assault, aggra^ vated by the intent to kilL But where the attempt is by means of poison, or by some other act, not being a direct assault, as by cutting the strands of a rope in the shaft of a coal-pit, or placing an explosive petard in a person's way, the charge of attempt to murder is a rele- vant charge at common law (2). The intent to murder is presumed from the act itself, Jj^°* p'^" on the rules already noticed.* And the attempt is held What conduct ,. , ,, jT. J.1- 1-j.- • constitutes at- complete when the accused has pxit his machinations in tempt. practical shape towards accomplishing his intention. If a person purposely mix poison with food or drink, and hand it to another, or place it somewhere, and in such circumstances that another is likely to partake of it (3) ; or if a poisonous drug be given to a third person to be administered to the object of the accused's malice, whether the third person be a consenting party to the crime, or be deceived as to the properties of the drug, 1 See Alison i. 22, 23. Tumbleson, Perth, Sept. 17tli 1863 ; 2 Hume i. 28, case of Eamage in 4 Irv. 426 and 36 Sc. Jur. 1. note a. — Mary A. Alcorn, H.C., 3 Andrew Williamson, Pertli, June 18th 1827 ; Syme 221.— Sam. Sept. 16th 1833 ; 6 Sc. Jur. 40. • r«fe2, 3. 166 ATTEMPT TO MURDER. At commos LAW. Punishment at common LAW. Statutory attempts. Shooting. Attempting to shoot. Stabbing or cutting. Administering poison. Attempting to sufEooate, or strangle, or drown. Throwing acids. the accused has done his part to accomplish the crime of murder, and is liable to punishment for the attempt (1). Attempt to murder is punishable by an arbitrary pain at common law, but by statute, certain assaults which partake of the character of attempts to murder, are made capital (2) viz. : 1. Wilfully, maliciously, and unlawfully, shooting at any of Her Majesty's subjects. 2. Wilfully, &c., presenting, pointing, or levelling any kind of loaded firearms at any of Her Majesty's subjects, and attempting, by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons. 3. Wilfully, &c., stabbing or cutting any of Her Majesty's subjects, with intent to murder, or maim, dis- figure, or disable, or to do some other grievous bodily harm. 4i. Wilfully, &c., administering or causing to be ad- ministered to, or taken by any of Her Majesty's subjects, " any deadly poison, or other noxious and destructive " subject or thing," with intent to murder or disable, or to do some other grievous bodily harm. 5. Wilfully, &c., attempting to suffocate any of Her Majesty's subjects, with intent to murder or disable, or to do some other grievous bodily harm. 6. Wilfully, &c., attempting to strangle any of Her Majesty's subjects, with intent to murder, disable or to do some other grievous bodily harm. 7. Wilfully, &c., attempting to drown any of Her Majesty's subjects, with intent to murder or disable, or do some other grievous bodily harm. 8. Wilfully, &c., throwing at, or otherwise applying to any of Her Majesty's subjects, any sulphuric acid, or other corrosive substance calculated to injure the human 1 Samuel Tumbleson, Perth, Sept. 17th 1863 ; 4 Irv. 426 and 36 So. Jur. 1. — See also Hume i. 27. — Alison i. 165, 166. 2 Act 10 Geo. IV. c. 38, §§ 1, 2. The Act reserves the power of the Crown to restrict the pains of law in express words. ATTEMPT TO MUEDBR. 167 ATTEMPTS. frame, witli intent in so doing to murder; or to maim, Statctoky disfigure, or disable, or to do some other grievous bodily harm, and where, in consequence, any of Her Majesty's subjects shall be maimed, disfigured, or disabled, or receive some other grievous bodily harm. As regards the two offences which relate to the use of in case of fire-arms, it is to be observed that they are different from fntent™° °° aU the rest, as no special intent is required by the Act. specified. Accordingly, where the shooting was found proved, but only with intent to do "bodily harm," the objection that this was not a good conviction under the statute was repelled (1). Although the Act uses the term Loaded does " loaded," it is not held necessary that the fire-arms ^°eanXtte"d.^ should be loaded with shot or other missiles. The words of the statute have been held to reach the case of the weapon being "loaded" with gunpowder, and with a piece of paper as wadding (2). In the cases stab must take mentioned under the third and fourth heads, completion ^^?°'' ^"^^^ ^^ of the injury, in so far as the accused is concerned, is swaUowed. necessary. The stab must be inflicted, or the poison must ' be actually taken. The words " suffocate," suffocating, " strangle," and " drown," used in the fifth, sixth, and andXowning. seventh heads, which are all joined together in one statement in the statute, without a repetition of the words wilfully, maliciously, and unlawfully, are some- what vague. Only one case appears to have occurred under these heads, a case of drowning (3). Very nice questions might arise as to the application of such general terms. The eighth head has this peculiarity. Acid must which distinguishes it from all the others, that, besides ?^™^ positive o ' ' injury. 1 Geo. Duncan, H.C., July 23rd 1 Broun 1 and Bell's Notes 68. or24tlil845; 2Broun465. — See also 2 Walter Blackwood, Glasgow, John Eobertoon, Dec. 26th and May 2d 18fi3 ; 1 Irv. 223 and 25 27th 1833; Bell's Notes 67.— Indict- Sc. Jur. 403. ments upon this part of the statute 3 Elizabeth Anderson or Fraser, alone do not, as a rule, specify any Glasgow, Oct. 1st 1850 (unreported), intent — See Geo. Blair, Dumfries, The accused pled guilty to a April 1836 ; Bell's Notes 68. — Jas. B. charge of assault at common law. Bum and others, Jan. 6th 1842; — Lord Justice Clerk Hope's MS S. 168 ATTEMPT TO MURDER. Statutokt attempts. How question of disfigure- ment, &o., to be determined. No capital sentence unless case one of murder, if sufferer had died. Question whether judge or jury to decide the above. Statute applies only to assaults on British subjects. the act and the intent, it is necessary that serious injury actually result (1). What amount of injury may be necessary to constitute the " disfiguring '' or other "grievous hodily harm," it is not easy to determine, and would probably be left to the decision of the jury (2). It is provided, in reference to all the above offences, that if it shall appear at the trial that, " under the cir- " cumstances of the case, if death had ensued, the act or " acts done would not have amounted to murder," that the offender shall not be subject to capital punishment. But it is not said whether the decision of this question is to be left to the jury, or whether it is to be laid down by the judge as matter of law. Probably, on the same principle on which, in cases of murder, it is left to the jury to say whether the offence amounts to murder or culpable homicide, the question under the statute would be also left to the jury. The point has not arisen in practice, as the charge is generally combined with a charge at common law, and a conviction at common law only is obtained, where the guilt proved is not such as would have constituted murder if death had ensued. There is one peculiarity in this statute which requires notice, viz., that the offence must be directed against or take effect upon " Her Majesty's subjects." Thus an injury to an alien could not be charged under the sta^ tute (3). 1 Sir Archibald Alison seems to be wrong in saying (i. 171) that the acid thrown must hare taken effect '^upon the person against " whom it was directed." The Act says expressly that if " any of Her " Majesty's subjects " shall be maimed, &c., the offender shall be held guilty. — See Ann Dewar or Beaton, Perth, April 26th 1842; 1 Broun 313, where Lord Moncreiff in his charge says, " Some person " must in consequence be maimed," &c. 2 See Jas. Wood, Perth, Oct. 4th 1836 ; 1 Swin. 283 (observation by Lord Medwyn). 3 The question has never been raised whether, in proving the sta- tutory charge, the prosecutor is not bound to prove that the injured party is a British subject. Soma indictments are to bo found in which the fact is specifically averred. 169 CONCEALMENT OF PEEGNANCY. If a woman conceal her condition during the whole scope of TEBM CON- CEALMENT, period of her pregnancy, sind do not call for, and use ™"'" °°^' assistance in the birth, and the child be found dead, or be not found at all, she is guilty of the statutory offence of concealment of pregnancy (1). But disclosure to any Diaoiosure to one, even to the father of the child, is sufficient to exempt ^^^ ^^*^' her from the penalty, though she deny the fact to all others (2). Nor does it matter that the disclosure was not Extorted ad- voluntary, but was extorted from her, as, for example, "ent""^^"^' by examination before, or at the instance of, a kirk- session (3). The statute applies indiscriminately to married and Act applies to unmarried women (4), and justly so, as it is obvious that ™o^en^ many cases may be supposed in which a married woman has an interest as strong as, or even stronger than, that of an unmarried woman to get her child put out of the way. As regards the question what- conduct shall be held to Question what amount to disclosure, there is difficulty in laying down disclosure. any precise rule. It is undoubtedly not a disclosure that the woman makes no effort artificially to hide her state from observation (5). But, on the other hand, an Explicit dia- absolute and explicit statement that she is pregnant is l^^i. °° ™' not necessary. The law requires such a disclosure as is naturally sufficient to take off the presumption of a criminal indifference about the fate of the child (6). If Conduct im- on being charged by any one with being pregnant, she fjo"^"^ * lead such person by her conduct to believe that she in- 1 Act 49 Geo. III. c. 14. there.— Alison i. 156. 2 Ann Gall, H.C., Jan. 24th 1856; 4 Hume i. 298, and case of Dick- 2 Irv. 366 and 28 Sc. Jur. 155. — son there.— Alison i. 157. Jean Kiellor, H.C., Nov. 20th 1850 ; 6 Hume i. 294. J. Shaw 676 and 2 Irv. 376 note, 6 Hume294,295, cases of Orrook: and 28 So. Jur. 156 note. and Johnston there. — Alison i- 3 Hume i. 296, and case of Cowan 156. 170 CONCEALMENT OF PREGNANCY. Scope of TERM CON- CEALMENT. Jocular denial. Open prepara- tion of cloth- ing. Disclosure at early period. deed is so, although not by directly acknowledging it, the rule of the statute does not apply. Nay, even though her reply be a denial, she would still probably not be held to have concealed her condition, if it was given in a jocular manner, or otherwise in such a way as to lead to the conclusion that in reality she admitted the fact (1). The question seems never to have absolutely arisen for decision, whether there may not be a sufficient disclosure without any direct statement or acknowledgment. Such a case may easily be conceived. Suppose, for example, that a woman becomes pregnant, and that from motives of delicacy neither she nor her relatives, though they observe her condition, ever speak on the subject ; but that, on the other hand, the woman openly makes clothing for the child, and perhaps even receives assistance in this from those about her. If it should happen in such a case that no one was present at the time of the birth, could it be said that the woman had concealed her pregnancy (2) ? This case would seem to be stronger in the woman's favour than that of a direct acknowledgment, which possibly may be made long before the time, and to a person who may not be at hand at the birth. For here the woman's conduct indi- cates a preparation for care of the child, and is incon- sistent with that reckless disregard of its safety which seems of the essence of this crime. Whatever may have been held in early times (3), it cannot be doubted that at the present day a disclosure, if distinct, is sufficient to elide the statute, although made at a very early period of the pregnancy. For as it has been truly remarked that " a disclosure to one person " may fairly be considered as a disclosure to ^many " more" (4) ; it is equally evident that an early disclos- 1 Jane Skinner, Aberdeen, Sept. 1841 ; Bell's Notes 80. 2 Alison i. 156. A case of this sort, under the older statute of 1690 is mentioned by Burnett, where the statutory charge was departed from. — Stewart, spring 1786 ; Burnett 672, note. 3 Hume i. 295, case of Park there. 4 Hume 1. 295. CONCEALMENT OF PREGNANCY. 171 ure is more likely to become known to many than one Scope of made just before delivery. Indeed tbe words of the cEALimNT" statute seem totally irreconcilable with any other view, for it is only when the concealment is during " the whole " period " that the statute can apply. Another question not yet directly decided is, whether Question wters diRplosurfi mdfQ.6 a disclosure shall elide the statute, though made only for evil pnrpo- with the wicked intention of obtaining aid in concealing ^^^' the fact from others and getting rid of the child. Views have been expressed in the Supreme Court pointing to the likelihood of such a disclosure not being held to prevent a conviction under the statute (1). Although any opinion contrary to that expressed by members of the court of highest authority, even though in the form of obiter dicta, must necessarily be stated with great hesitation ; still it is thought that to hold a revelation to be no revelation, because of any purpose which the woman had in making it, would be going beyond the statute. The statute uses the word " conceal," and says nothing of the case of a revelation of the fact being held to be no revelation, because of the motive with which it is made. It was passed for the evident purpose of reaching a case which the common law was powerless to meet. The object was to provide for one case, that of the woman carrying her secret lodged in her own breast, and delivering herself unknown to others, to the risk of the destruction of the child — not by murder, for the common law met that case — but by want of assistance. Now that being so, if the woman reveals her condition, is she not beyond the statute, be the motive what it may 1 It is possible that she may be heyond it, only by having committed a greater crime, such as entering into a conspiracy with another to commit a murder, or 1 See the opinions of the Judges Jur. 155. — Baron Hume (i. 295) also in the case of Ann Gall, H.C., Jan. raises the question, but expresBes 24th 1856 ; 2 Irv. 366 and 28 Sc. no opinion upon it. ]72 CONCEALMENT OF PREGNANCY. Scope OF TERM attempting to seduce another to do so (1), but does that coHCEAiJiENT. (jircumstance alter the fact, so as to bring her within the statute? It is diificult to see how such a case could he hrought within it. The idea that the woman is to he held not to have told anything because she has told with a motive, seems to be not only interpreting a penal sta- tute on principles of supposed policy, instead of on its terms (2), but to involve a total sacrifice of logic. To say that a revelation to one person, which is undoubtedly sufficient in itself, is a part of a continued concealment, because made with the motive of concealing from others, appears to involve a contradiction in terms. And where would such an exception to the strict words of the statute end? If revelation to one person for the purpose of concealing from others be no revelation at all, then logically a revelation to a whole household of ten people or more for the same purpose, is still a concealment. Thus the moment an attempt is made to stretch the words of the statute in order to punish cases not literally falling under them, the result becomes incon- sistent with itsel£ The statutory words seem to imply no question as to motive, either good or bad. It is quite possible to suppose a case in which the motive of concealment might be in itself good. For example, if a pregnant woman be in fear that her mother or others would destroy the child to save the credit of the family, and therefore do not disclose, she would still be liable to the penalty of the statute. The law declines to enter into the question whether the motive was good or not. And if the motive of the revelation be bad, it is still a revelation, nor does it follow that its result wiU not be to aid in securing the safety of the child. Why, then, should the law be in this case stretched beyond its express words against the accused, when in the former 1 Attempting to seduce another case of Dingwall there, to enter into a conspiracy to com- 2 " XJH lex non distinguet nee tws mit murder is undoubtedly a rele- distinguere dd>emm," is a maxim Tant criminal charge. — Hume i. 27, which appears to apply. CONCEALMENT OF PREGNANCY. 173 case they could not Tdb stretched in her favour ? Further, Scope of teem ■J? it. ■ il J J.1 J!C T T •! COHCEALMENT. it this theory were sound, the offence would necessarily be capable of accession, although it has been expressly found that in libels for this crime, the statutory charge of guilt as " art and part" is properly omitted, on the ground that the nature of the offence is inconsistent with the idea of there being any accessory (1). And on this matter Baron Hume declares that the Act does not ad- mit of a; charge of art and part, and expresses himself thus : — " The statute, in its whole strain and context, has " immediate relation to the mother alone, who, by the " very nature of the charge, is stated as the one person " in the world that is conscious of the birth" (2). And Sir Archibald Alison thus states the same rule : — " If " any other person has been privy to the design, the " statute is elided by that very circumstance" (3). It is thought, on these grounds, that whatever may be the purpose of a revelation, and however much criminality it may involve, the fact that the woman has informed others of her pregnancy prevents her case from falling within the statute, and that the motive which led to the confession cannot be held to make the fact less rele- vant in defence, so far as the statutory charge is con- cerned. The statutory words, " during the whole period of her Whole " pregnancy," do not by any means imply that the preg- pIegmcy. nancy must have continued for the full .ordinary period of nine months C4'). It has accordingly been decided Prosecutor not . -1 1 , ,1,1-1 1-iT bound to prove that the prosecutor is not bound to prove that the child child full was produced at the fuU time, and that the relevancy of s'''''^- the charge cannot be affected by this not being the fact (5). All that seems to be necessary is that there should be 1 Alison Punton, H.O., Nov. 5tli 5 Elizabeth Brown, H.C., March 1841 ; 2 Swin. 572 and Bell's Notes 16th 1837; 1 Strin. 482 and Bell's 81. Notes 80. — Alison Punton, H.C., 2 Hume i. 299. Nov. Sth 1841; 2 Swin. 672 and 3 Alison 1. 168. Bell's Notes 80. 4 Hume 1. 297. 174 CONCEALMENT OF PREGNANCY. Whole period of pkegnancy. State op CHILD AT BIRTH. Child being still-born is no defence. But if whatwas brought forth was not a child, no case under statute. Failure to CALL for and USE HELP. such proof of duration of pregnancy as made a living birth possible (1). It is, of course, a strong point in the woman's favour if she can establish that her labour was premature, and is good evidence to go to the jury, whether as direct evidence, or with a view to a recom- mendation to leniency, especjially if there be proof that some accident was the cause of the labour (2). For un- doubtedly the same obstinacy of concealment cannot be presumed where the labour has come on at an earlier period than is usually the case, because it might rea- sonably be believed not to be actual labour up to the very last moment. On the other hand, it can scarcely be maintained in the case of the chUd being full-grown, that mere proof of its being still-born can have any effect upon the statutory charge, as the child may have been still-born, by perishing in the course of labour in conse- quence of the accused's failure to reveal her condition, or to call for and use assistance (3). If the accused can prove that what which she brought forth was not " a " child," but an abortion or a fcetus, which, from some accident, was in such a condition that, though there had been assistance in the birth, it could not have been in a condition to be called " a child," then the case is out of the statute ; for the birth of a " child," whether dead or ' alive, is a necessary part of the statutory offence (4). Besides concealment during pregnancy, there must be a failure to call for and use help in the birth. If at the 1 Hum8i.298.— Alison i. 153, 154. 2 In the case of Mary Sinclair, Glasgow, Oct. 2, 1847, where the accused pled guilty, it was stated in mitigation of punishment that she had not reached her full time, and the sentence was limited to six months' imprisonment. Lord Justice Clerk Hope's MSS. — In the case of Margaret Murdoch, Dumfries, April 12th 1859, the medical evidence proved that the child was bom in the 8th month. It was objected that there was no case to go to the jury. Lord Ivory's MSS. contain the following note; — "Lord Cowan "and I expressed opinions, ouhear- "ing which the Advocate-Depute " withdrew the case." It does not appear from this that the objection was of itself held good, but it indi- cates that the fact of a premature birth is an important element in favour of the woman in such a case. 3 Hume i. 298.— Alison i. 154, 155. 4 Hume i. 297. PROCURING ABORTION. ] 75 last moment tlie woman call for and use the help that is Failure to at hand, she is not guilty of the statutory offence. The use hew^ question whether she has done so or not is one of circum- stances (1). Lastly, the concealment must continue down to the Conoeaiment death of the child, unless it be missing, in which case, death o^f child, of course, the death cannot be proved. But if the child be born alive, and be shewn by the mother to others, then though death afterwards ensue, her previous con- cealment goes for nothing (2). The child is neither " found dead" nor is it " amissing." The punishment prescribed by the statute is imprison- punishment. ment, not exceeding two years. PEOCUEING ABOETION. Any one who feloniously causes or procures a pregnant Peocuring woman to abort is guilty of a very serious crime, whether it be effected by drugs (3) or by the use of instruments (4). The act must be done with a special felonious intent, f^i^^^™™* ^" for it is in some cases necessary to cause abortion. The Woman may woman herself may be guilty, if she be aware of the pur- pose for which the drug is administered or the instru- ment used (5). Administering drugs or using instru- ments to procure abortion is criminal, though that result do not foUow (6). Whether the woman alone can be 1 Hume i. 297. — Alison i. 157. 5 Hume i. 186, case of Eobertson 2 Hume i. 296. — Alisoni. 156, 157. and Kempt there. In this case the 3 Hume i. 186, and case of charge was " the administering and Eobertson and Kempt there. — Alison "taMng of a poisonable draught, i. 629, and case of Munn there. — " wherewith she destroyed her child More ii. 373. " in the womb." — i. 187, case of 4 Hume i. 187, case of Eobertson^ Eobertson and Bachelor there. — and Bachelor in note 1, — Alison i. Alison i. 628. 628, case of Aitken there.— Will. 6 Alison i. 629—^111. Eeid, Eeid, H.C., Not. 10th and 11th 1858 ; H.C., Nov. 10th and 11th 1858 ; 8 3 Irv. 235. Irv. 235. 176 ASSAULT. Attempt. Question whether wo- man can be charged with attempt. Punishment. relevantly charged with taking drugs to procure abortion has not been absolutely decided. A charge of this sort was withdrawn after a debate on the relevancy, but the report does not state distinctly whether it was the general ques- tion, or difficulties in connection with the special case, that led to the withdrawal (1). There certainly seems no sound reason in principle which should lead to the conclusion that in no case could such a charge be relevantly laid. The punishment of such offences is either penal servi- tude or imprisonment, according to circumstances. ASSAULT. Scope of TEBM ASSAULT. Spitting. Blow or shot which does not take effect. Hounding dog on person, or flogging or stopping his horse. Pushing person off train. Menace. Every act of attack upon the person of another is an assault in law, whether it injure or not. Even spitting upon another intentionally is assault (2). . Nor need the act done take effecj;. It is assault to shoot at or aim a violent blow at another, though he remain un- touched (3). Assault may be indirect, as by hounding a dog on an- other, or even by flogging the horse another is riding, so as to make it run off (4), or violently stopping the horse which a person is riding or driving (5). Cases may occur also where the malignity of an assault is not by any means to be measured by mere physical act done by the accused, as, for example, where one person by a slight push throws another off a railway train, or over a steep place (6). Even serious menace of dangerous vio- 1 Jessie Webster, H.O.,May 24th 1858; Slrv. 95. 2 Jas. Cairns and others, H.O., Deo. 18th 1837; 1 Swin. 597 and Bell's Notes 88. 3 Hume i. 329, case of Justice and Home there. — Alison i. 175. — Stewarts. Procurator-Fiscal of For- farshire, H.O., Nov. 16th, 1829; 2 So. Jur. 32. -"Earl of Mar, Dec. 19th 1831 ; Bell's Notes 89. 4 David Keay, Stirling, Sept. 16th 1837 ; 1 Swin. S43 and Bell's Notes 88. 5 Kennedy ». Young, H.O., July 12th, 1854; 1 Irv. 633 and 26 So. Jur. 574. 6 Peter Leys, H.C., March 12th 1839; 2 Swin. 337 and BeU's Not«s 88. ASSAULT. 177 lence may amount to an assault, as by presenting a gun or Scope of pistol in a threatening manner at another (1), though the ^°"^ assault. trigger he not drawn (2), or the gun be not cocked (3) or loaded, unless this was known to the person attacked (4). Gestures threatening violence so great as reasonably violent to put another in bodily fear, whether accompanied by gestures. words of menace or not, constitute assault in law (5). That threatening language was used at the time may be Mere words an important element in estimating how far the bodily "°' ^^ '''^*""' fear of the person attacked was reasonable ; but mere words can never constitute an assault. Evil intention being of the essence of assault, it differs Evil intent of from culpable homicide in so far as injuries happening assaiJt!''™ ° from carelessness, however culpable, are not assaults. Nor is it assault if, in the doing of some act of mischief, not directed against the person of any one, injury is caused to another of whose presence the perpetrator of the mischief was not aware (5). No provocation by words spoken or written can jus- provocation. tify assault (7), though it may mitigate the punish- ^g°[f^°but°°' ment (8). But provocation by blows will justify an may palliate assault if the retaliation have not been excessive (9). gfows justify Of course, any cruel excess in retaliation will prevent i* retaliation ■^ moderate. 1 Eob. Dewar and others, Glas- creiff's opinion).— John Eoy, Stir- gow, May 4th 1842 ; 1 Broun 233 ling, Sept. 14th 1839 ; Bell's Notes and Bell's Notes 89. 88 (glass maliciously broken out- 2 Alison i. 175, and case of the ting person), procurator-fiscal of Edinburgh v. 7 Hume i. 333, cases of Home: Hog there. — More ii. 374. and Storie there, and oases of Skin- 3 Eob. Charlton, Jan. 29th 1831; ner: Douglas: Hamilton: and Mao- referred to in Earl of Mar's case, , pherson in note 2. — Alison i. 176. Bell's Notes 89. 8 Hume i. 334, and case of Look- 4 Hume i. 443, case of Alexander hart there, and case of Monro and there. — "Walter Morison, Glasgow, others in note 2. Sept. 19th 1842 ; 1 Broun 394 and 9 Hume i. 334, and cases of Mur- Bell's Notes 89 (Lord Cookbum's ray: Forbes: Haliburton: Camp- charge). ' bell : Higgins :- Conhoun and Bun- B John Ijrving, Ayr, Sept. 1833 j tine : Dundas : Anderson : Seton : Bell's Notes 88. and Maoindassanach there. — i. 33S, 6 David Keay, Stirling, Sept. and case of M'Cullooh and others 16th 1837 ; 1 Swin. S43 (LordMon- in note 1.— AHson i. 177. M 178 Pkovocation. ExoeBsive retaliation. Cases of spouses, parents, and children. Provocation must be recent. Case of written libel. Verbal provocation. ASSAULT. the person first attacked from maintaining the plea of ' provocatioa Thus, if a person be struck with the fist, and retaliate by stabbing, or striking with a crowbar, or if in retaliating he continue beating the aggressor after he is disabled or the like, the provocation will at the utmost only mitigate the punishment (1). It will require evidence of extraordinary provocation to mitigate an assault by a husband on his wife (2). In the case of a son or daughter assaulting parents, very cruel ill-usage just beforehand would probably be a good defence (8). The provocation must have been recent to entitle the accused to plead it as a defence (4). What length of interval will exclude the provocation as a ground of de- fence is not very definitely fixed. Where the provoca- tion is a written and published libel or the like, it seems to have been held that several days may elapse be- tween the publication and the assault, and still the provocation may be held recent. In one case the Court directed the Jury that they might take into considera- tion as provocation a libel published four days before the assault (5). On the other hand, verbal provocation is not held pleadable unless it was very recent. Proof has been allowed of provocation received in the morn- ing, in defence of an assault committed in the even- ing (6). It may be doubted whether the rule will ever be extended further, if indeed it would not be held to have been extended too far (7). But it is possible that if a special defence were lodged, setting forth that the 1 Hume i. 335, and cases of Cbar- teris : Adamson and Ogilvy : and Haliburton there. — Alison i. 177. 2 Bob. D. Burnet, Deo. 8th 1834; Bell's Notes 91. 3 Hume i. 324^ in reference to the statutory offence. — David Dow, Perth, April 16tb 1830 ; BeU's Notes 87 Bob. M' Anally, Glasgow, April 27th 1836; 1 Swin. 210 and Bell's Notes 87, (Lord Mackenzie's ch 4 Humei. 336, and cases of Lock- hart: and Home and Justice there. — Alison i. 178, 179, and case of Boss there. 6 Geo. Cameron, Inverness, April 28th 1832 ; 5 Deas and Anderson 267. 6 Hume i. 336, case of Lockhart there. 7 Donald Stewart and others, Inverness, Sept. 14th 1837; ISwin. 540 and BeU's Notes 91. ASSAULT. 179 party injured had subjected the accused to a series of Pkovocation. insults and attacks, the last of which was immediately before the assault, he might be allowed to go back a day or two in his proof, and thus strengthen the evi- dence of the provocation de recenti (1). Assault may be aggrava,ted either by its intent, or by Aggbava- the mode of its perpetration, or by the injuries resulting '^^°^^' from it, or by the place where it is committed, or by its being committed on a person to assault whom is a specially heinous offence, or by the accused having been previously convicted of assault, or it may combine all or any of these elements of aggravation (2). I. The cases of aggravation by intent which have Aggravation occurred in practice are — ' °^ ™tent. Intent to kiU (3). To km. Intent to do grievous bodily harm (4). To do grievous Intent to ravish (5). _ ^ ToTavish. It is an undecided question whether this can be charged when the injured party is a child, and there is no violence alleged, but only a seduc- tion of the child to comply with the accused's advances (6). But where the charge is that the 1 See Hume i. 336, oa,ee of Hcune Bell's Notes 88. (Assaults of certain and Justice there. Here the proof descriptions, with this intent, are was limited to two days. made capital by statute. Vide 166). 2 In some oases previous malice 4 Certain assaults with this in- has been libelled as an aggravation, tent are made capital by statute, but this practice is in desuetude. Vide 166. Where malice is to be proved in a 5 Hume i. 308, case of Mac ward case of assault, it is sometimes in note 1. — i. 309, and cases alleged, not as an aggravation, but of Gray: Charteris : Foulden: as an averment of fact in the minor Newton: Wilson: and M'Keever proposition. But this is done to there, and cases of Montgomery: entitle the prosecutor to prove the and Jamieson in note •. — Alison i. malice, if not of a date immediately 184 to 187, cases of Hosie : Scott: prior to the offence. See Jas. Crosbie: M'Gowans: Ingram: M'Kerlie, Glasgow, May 3d 1845 ; M'Lean : Wylie : and Praser there. 2 Broun 429. 6 John M'Arthur, Glasgow, Sept. 3 Hume i. 328, 329, and oases of 8th 1830 ; Shaw 216 and Bell's Syme : Ogilvy : and TouDg there. — Notes 84. In such a case "Attempt Mysie or Marion Brown or Graham, to commit Eape " would be a better H.O.,Maroh 13th 1827 ; Syme 152. — form of charge, no violence being Geo. Loughton, March 14th 1831; necessary in rape of a child. J 80 ASSAUI.T. Aggravation of intent. To gratify lewdness. To abduct. To rob. To obtain deed. To intimidate employers or ■workmen. To extort confession. To rescue prisoners. Aggkavation OF MODE. Charge of lethal weapon not now used. accused assaulted a cMld with intent to ravisli her, it is, of course, sufficient to prove the attempt; and there need be no proof that it was " forcibly and against her will " (1). Intent to gratify lewdness — Whether upon women (2) or young persons, either girls (3) or boys (4), and whether above or below puberty. Intent to carry off a person by force (5). Intent to rob (6). Intent to compel the granting of a deed or obliga- tion (7). Intent to intimidate employers or workmen, or in pursuance of any similar iQegal combination (8). Intent to extort a confession from a prisoner (9). Intent to rescue prisoners lawfully apprehended (10). IT. Aggravations in the modes of assault are of various kinds. Formerly it was common to charge the use of lethal weapons as an aggravation (11) ; but this has very properly fallen into desuetude. The expression " lethal " weapon " is very vague, as it may depend very much 1 John Buohan, Nov. 25th 1833 ; Bell's Notes 84. 2 Geo. Thompson or Walker, Feb. 28th 1831 ; Bell's Notes 86. 3 Peter Borrowman, July 3d 1837; Bell's Notes 86.— WiU. Gal- loway, July 12th 1838 ; Bell's Notes 85. — Adam Johnston, H.C., July 26th 1844; 2 Broun 261, note. — Bob. Philip, H.O., Nov. 2d 1855; 2 Inr. 243 and 28 Sc. Jur. 1. 4 David Brown, H.C., July 15th 1844 ; 2 Broun 261.— Andw. LyaU, Perth, April 26th 1853 ; 1 Irv. 218. 5 Hume i. 329. Baron Hume speaks only of carrying off a woman, but the same principle applies to the case of carrying off a voter or any other person. As to voters see 17 & 18 Vict. c. 102 5 5. 6 Hume i. 329.— Alison i. 188. 7 Hume i. 329. 8 Hume i. 329, case of Steel in note a.— Alison i. 188, 189, 190, 191, and case of M'Kay and others there. — i. 192, case of Eean and Lafferty there. — ^i. 193, cases of Robertson and others: and Frew and others there. — Will. Ewing and others, H.O., Nov. 19th 1821 ; Shaw 64. — Jas. Thompson and others, H.C., July 19th 1837; 1 Swin. 532. 9 Alex. Pindlater and Jas. Ma»s FROM EXPENT extent oi the mjury inflicted (7) : — of injury. 1 Assaults by these modes, com- Glasgow, May 4th 1842 ; 1 Broun bined with an aggravated amount 233 (Indictment). of criminal intent, are made capital 4 Case of Morison supra. by statute. Vide 166. 5 Jas Affleck, H.O., May 23d 2 Alison i. 179, 180, cases of la- 1842; 1 Broun 354.— Edward Hagan mond and Smith: Carson: Kean: and Patrick Hagan, Glasgow, Dec. and Eobertson there ^i. 181, case 28th 1853 ; 1 Irv. 342 (Indictment). of Corbet there. 6 WiU. Fitchie, H.O., Nov. 6th 3 Walter Morison, Glasgow, Sept 1856 ; 2 Irv. 485.— Mary Fitzherbert^ 19th 1842; 1 Broun 394 and Bell's H.C., March 23d 1858; 3 Irv. 63. Notes 89 (Lord Cookbum's charge). 7 Aliaon L 181, 182. — See also Eob. Dewar and others, 182 Aggravation fkom extent of injukt. Danger of life. Injury. Mutilation. Fracture. Effusion of blood. Infecting. Aggravation by place of assault. Eoyal presence. Eoyal domain. Law Court. Premises of person assaulted especially when sought there. Distinction from hame- Buckeu. ASSAULT. Danger of life ; imminent ditto ; great ditto. Injury of the person ; serious ditto. Mutilation or permanent disfiguration (1). Fracture of bones. Effusion of blood ; great ditto. Communication of venereal disease to the assaulted (2). person IV. The following aggravations relate to the place of the assault : — In the presence of the Sovereign (3). In a Eoyal domain (4). In the supreme courts of justice (5). In the premises of the person assaulted (6), and this especially when the premises are sought with the premeditated purpose to assault (7). This last aggrava- tion is nearly the same as that which is implied in hamesucken* ; but as hamesucken is only constituted by very serious assault in the person's dwelling-house (8), such an aggravation as premeditatedly seeking a per- son in his own premises in order to assault him, is pro- perly charged, where the assault to be proved may not be so serious as to entitle the prosecutor to a verdict of hamesucken, or may have taken place in a building which was not truly the dwelling-house of the person assaulted. 1 Kume i. 330, 331, and case of M'Bwan in note a. — Alison i. 195, 196. — Laohlan Brown, Inverary, April 29th 1842; 1 Broun 230 and BeU's Notes 89- 2 Jas. Mack, Glasgow, Deo. 22d 1858 ; 3 Irv. 310. 3 Hume i. 326, 327. 4 Hume i. 327. 6 Hume i. 405. This and the two last-named offences were capi- tal by statute in early times. In flagrant cases they would probably still be considered as aggravated offences at common law. 6 Hume i. 318, case of Macdonald and Fraser in note a. — Alison i. 196, 197, case of M'Credie there. 7 David K. Williamson, H.O., June 13th 1863 ; 1 Irv. 244. 8 Hume i. 320, case of Haldane there. Vide 188. ASSAULT. 183 V. The following are aggravations resulting from a quality of the person assaulted, or the relation in which the parties stand to each other. Assault on parents (1). Assault on a child of tender years (2), and espe- cially by a parent (3). Assault (indecent) hy a person in charge of a child (4). Assaiilt on a wife (5). Assault on a woman in an advanced state of preg- nancy (6). Assault on a person known to be in a state of in- firmity (7). Assault on a clergyman (8). Assault on judges (9). Assatdt on magistrates when engaged in preserv- Aggravation in quality op suffeker. Parent. Toung child, and especially by parent. Pupil. Wife. Pregnant woman. Infirm person. Clergyman. Judge. Magistrate. 1 Alison i. 197. — Jas. Aires, Perth, AprU 14th 1830; 5 Deas and Anderson 147. — John Beatson, H.C., July 14th 1836 ; 1 Swiu. 264. (Beating parents is a capital offence by statute. Vide, 186). 2 This generally occurs com- bined with some other aggravation, such as intent to ravish (Alison i. 186), but it is a substantive aggra- vation in itself. 3 Alex. Macgregor, Glasgow, April 1846 (Indictment) ; Adv. Lib. Coll. This is given as a single instance; there are many indict- ments to the same effect On the same principle, an assault on a lunatic or idiot would probably be held aggravated. 4 David Brown, H.C., July 15th 1844; 2 Broun 261. 6 Alison i. 197 : cases of Boss : and Shaw there. 6 There are numerous indict- ments in the Advocates' Library Collection. As a single example, the case of Jas. Knox, Glasgow, Dee. 27th or 28th 1854 (unreported), may be referred to, where this ag- gravation was sustained. 7 This aggravation seems to have passed without objection in Geo. Cameron, Inverness, April 28th 1832 (Lord Moncrieft's MSS.), al- though the indictment was strongly objected to on other grounds. — Also in the case of ' Duncan M'Gregor, Glasgow, April 21st 1835 (Indict- ment, and Lord Justice General Boyle's MSS.) 8 This was an aggravation under certain old statutes now in desue- tude, but it is still an aggravation at common law. — Hume i. 326. — David E. Williamson, H.C., June 13th 1853 ; 1 Irv. 244. 9 Hume i. 405. By an old sta- tute now in desuetude, assault on Judges sitting in Court is a capital offence ; 1693, o. 177. 184 Aqgbavation in qcauty of sufferer. Privy Coun- cillor. Officer of law. Scope of term officer of law. Soldiers aiding civil power. Soldiers in charge of pri- soner. By person on prisoner in his charge. ASSAULT. ing the peace (1), or in reference to their judicial con- duct (2). Assault on the officers or privy councillors of the Sovereign, on account of service done to the Crown (3). Assault on ofacers of the law doing duty, or in revenge for duty performed (4). The term officer of the law includes sheriff-officers, police-constables, revenue- officers, water-bailiffs — in fact, all those entrusted with the carrying out of police or statutory duties (5), pro- vided they be duly vested in their office and are per- forming a competent act at the time (6), and there be no known or glaring defect in the warrant or diligence where such is being enforced (7). Assault on soldiers doing duty in aid of the civil magistrate (8). Assault on soldiers in charge of a military pri- soner, for the purpose of rescue, or the like (9). Assault by an officer of law on a prisoner under his charge (10). It must be kept ia mind iu reference to such cases of 1 Hume i. 329, note a. — Alison L 193, 194.— Bob. Langhlan, H.O., Nov. 19th 1821; Shaw 65 Jas. Falconer and others, H.C., Mar. 23d 1847; Ark. 242. —Jas. Niool- son and John Shearer, Inverness, April 16th 1847 ; Ark. 264. 2 AUsoni.194.— i. 573, 574.— Bob. Duncan, H.O., Deo. 3d 1827 ; Syme 280.— John Irving, Ayr, Sept 1833 ; Bell's Notes 88. 3 By an old statute this is a capital offence ; 1600, c. 4. — Hume i. 327. 4 Hume i. 329 note a, and case of Bamet and Brown there. — Alison i. 194, 195 and cases of Praser : Wat- son and others: and Gordon and Macpherson there. 6 Jas. Affleck and Jas. Bodgeis, Jedburgh, April 6th 1842 ; 1 Broun 207. — ^Alex. Smith and John Milne, H.O., Dec. 19th 1859; 3 Irv. 506 and 32 Sc. Jur. 156. 6 Gunn and others v. Proc-Fis- oal of Caithness, H.C., Nov. 24th 1845 ; 2 Broun 564. — Margaret Stewart or Cook and others, In- verary, April 17th 1866; 2 Irv. 416. 7 Beattie v. Proc-Piscal of Dum- fries, H.O., Dec. 10th 1842 ; 1 Broun 463. 8 Jas. Nicolson and John Shearer, Inverness, April 16th 1847 ; Ark. 264. 9 Geo. MiU and others, Jedburgh, Sept. 16th 1839 ; 2 Swin. 444. The charge was not put in this case as aggravated, but there can be no doubt that it might have been so. 10 Alex. Findlater and Jas. Mac- dougal, Glasgow, Jan. 9th 1841 ; 2 Swin. 627 and Bell's Notes 92. ASSAULT. 185 aggravation, as assaults on clergymen, magistrates. Aggravation officers of law, &c., that to constitute the aggravation ^ffebee^°^ the accused must have known the official position of the person assaulted (1). VI. As regards aggravation by previous convic- Aggravation tion (2), it is only necessary to repeat the general rule, coimcrioNf that it is not essential that the previous conviction he of an assault of the same description as that for which the accused is under trial. A previous conviction of simple assault may be founded on as an aggravation of a charge of assault, especially when committed with in- tent to ravish ; or assault, especially when committed with intent to rob, and vice versa. But the conviction must be truly and substantively a conviction of assault. If there are other offences connected with the assault in the previous conviction, they must be so stated as to prevent the question being raised whether assault as a substantive offence was truly a ground of conviction. Where a previous conviction of " deforcement and assault " was libelled, the fact of the charge being put in this form was held to make it doubtful whether the conviction was truly for assault separately from deforce- ment, and the conviction was withdrawn. But in the same case another conviction for " deforcement, as also " assault," was admitted, as it plainly indicated a pre- vious conviction of assault as a substantive crime (3). The punishment of assault is either penal servitude punishment. or imprisonment, according to circumstances, or in trifling cases a fine, either in conjunction with, or in lieu of, imprisonment. 1 Alex. Alexander and Jas. Dumfries, April 7th 1842 j 1 Broun Alexander, H.O., Jan. 22d 1842 ; 1 213 and Bell's Notes 33. (Mr Bell's Broun 28 and Bell's Notes 102. — notice of the case is scarcely acou- Geo. M'Lellan and others, H.O., rate, as he speaks of the first con- Deo. 26th 1842 ; 1 Broun 478. viction as having been for " de- 2 Alison 197, 198. " forcement," whereas it was for 3 Andrew Toung and others, " deforcement and assault.") STELLIONATE. Stellionatb The term stellionate is now nearly obsolete in crimi- nal practice. Denoting, as it does, a " real injury," it was formerly used in cases of serious injury to the per- son; as by binding or burning another severely, or thrusting a needle into the eye of another, or adminis- tering injurious drugs to persons, or large quantities of spirits to children, to their injury ; and similar offences (1). The term itself was however of little value, as it does not appear to have ever been used alone, but was only made the heading of a particular statement of the nature of the offence. Baron Hume says the term may be employed " along with the full " description of the injury " (2). Accordingly, though similar offences have often occurred of late years, the term stellionate has not been used in practice siuce 1842. BEATING AND CUESING PARENTS. Statdtort OFFENCE. Under an old statute, which is still founded on in practice, it is a capital offence for any one "not dis- " tracted " to beat or curse father or mother, except in the case of children between pupillarity and sixteen 1 Hume i. 328 and case of Camp- bell there and in note 1 (burning). — Alison i. 196. — Thos. Ogilvie and And. OgiMe, Perth, April Utb 1830 ; Bell's Notes 89 (binding).— Peter Plin and Will. Drummond, Inver- ary, Sept. 1829 ; Indictment, Adv. Lib. Coll. and Lord Wood's MSS. (injury to eye). — ^Will. Buchan and Donald or Daniel Hossaok, July 22d 1840 i BeU's NoteB 90 (drugs). — ^Bob. Brown and John Lawson, Glasgow, Sept. 21st 1842 ; 1 Broun 415 and Bell's Notes 90 (giving spirits to child). — Donald Mac- gregor, Inverness, April 18th 1850, Lord Justice Clerk Hope's MSS. (administering croton oil). — John Smith, Perth, May 1st 1856 ; Lord Justice Clerk Hope's MSS. (admi- nistering cantharides). 2 Hume i. 328. BEATING AND CURSING PARENTS. 187 years of age, in regard to whom the punishment is arbi- Statdtoky trary (1). Father and mother by af&nity are not in- ^ "^ eluded in the rule of the statute (2). Nor is it apparently afflnHy and applicable to grand-parents (3). MUndS!^ The beating and cursing are separatim relevant to Beating or infer the pains of the statute. One trial seems to have ^'^^"'s- taken place on a charge of cursing alone (4). As re- Assault must o V y j^g serious. gards beating there must be a violent and real assault. That which would constitute an assault at common law, does not necessarily imply a contravention of the statute (5). Thus, in a case where the judge laid it down that " no man breathing can doubt that the facts, " as they appear in evidence, constitute the crime of " assault at common law," it was also laid down as " clear that no such beating had been proved as to bring " the case under the Act of Parliament," (6). "Whether the word "distracted" would be held to Question apply, to protect from the statutory penalty a son or distracSd"'^"' daughter, retaliating for gross and cruel injury inflicted o°°'"p|g^ °^^^ by the parent, has not been decided. But it is thought, provocation. in accordance with the view of our greatest institutional writer, that if the parent " has provoked the injury, by " a cruel and excessive abuse of the child's person," that this would be a good defence against the statutory charge (7). The offence of cursing parents is not committed ex- cursing must cept by serious unambiguous expressions, amounting to ^ strong in "bitter and hostile execration," (8). And where the manner. 1 Act 1661, 0. 20.— In modem 6 Hume i. 324, 325. practice the pains of law are inva- 6 Jas. Alves, Perth, April 14th riably restricted. 1830 ; 5 Deas and Anderson 147. 2 Hume i. 325, and case of Chal- 7 Hume i. 324. — See also Bob. mers there.— More ii. 376. M'Anally, Glasgow, April 27th 3 Hume i. 325, 326. 1836 ; 1 Swin. 210 and BeU's Notes 4 Hume i. 325, case of Young 87 (Lord Mackenzie's charge), there. See also the Interlocutor in 8 Hume i. 325. — The following the case of Brown and Chalmers in cases afford illustrations of the sort note 2. of language held to constitute the 188 HAME8UCKEN. 'BlATnTOET OFFEHCE. Cursing when intoxicated. Cursing need not be in presence of parent accused was very much intoxicated, the Court thought it would be " a very serious matter to hold that expres- "sions uttered under the influence of intoxication, as " here proved, show such a settled purpose of mind, as " to bring them under the statute," (1). The statute does not seem to require that the words should be uttered in the parent's presence (2). HAMESUCKEN. Place of OFFENCE. Must be committed in dwelling house. Case of innkeeper. Question whether assault in ship is hamesucken Hamesucken consists in committing serious violence upon another in his dwelling-house, the house having been entered with the intention to commit an assault. It is not hamesucken, if the place be only an outbuilding (3), or be the shop or of&ce of the person attacked. It must be the place he lives in. And this holds even where the shop and dwelling are in one building. An attack in the shop cannot be hamesucken (4). On the same principle, it is not in the ordinary case hamesucken to attack the landlord of an inn, his house being open to aH comers. But this rule is only to be applied in a reasonable sense. It would undoubtedly be hamesucken, for example, to break the security of an inn after it was closed for the night, and to attack the innkeeper (5). The question seems never to have been absolutely decided whether hamesucken can be committed in a ship (6). But it statutory offence : — Jas. Alves, Perth, April Uth 1830 ; 5Deas and Anderson 147 and Bell's Notes 87. — John Beatson, H.O., July l DESERTING INFANTS. ] 9 7 done whicli amounts to an assault. Thus confining a Cruel tkeat- person in a narrow closet for a long time, and not per- 1- mitting or giving the means of cleanliness (1), or harhar- 1^2 na™ow ously exposing a person in a helpless state from severe Pf*°®- . sickness, and unable to resist, in inclement weather (2), sick person. or maliciously withholding from children or weak per- Withholding '' , ° . ■"■ nounsnment. sons proper nourishment and clothing suitable to the condition and means of the parent or custodier, or habi- Exposing to tually exposing them to severe cold, confining them in outhouses in winter, or the like (3), are aU acts which, singly or combined, have been prosecuted and punished. And such offences are of course aggravated where the Guilty party ' person committing them is the natural custodier of the custodier is an sufferer, or where severe or permanent iniury has been *ss^^™*'™- ^ J Aggravation sustained, or the mind been weakened or destroyed by of serious the cruelty practised (4). injury The punishment of such offences is arbitrary, being Punishment. either imprisonment of penal servitude according to the circumstances. EXPOSING AND DESERTING INFANTS OR PLACING THEM IN DANGER. To expose and desert an infant is an offence, though no evil consequences happen to the child (5). Whatever 1 Will. Fairweather and Ann 1841 ; Bell's Notes 82. — David and Young or Fairweather, Perth, Janet Gemmell, H.C., June 5th April 25th 1842 ; 1 Broun 309 and 1841 ; 2 Swin. 652 and Bell's Notes Bell's Notes 82. — Geo. Fay, Glas- 82. — Case of Fairweather supra. — gow, Deo. 27th 1847 ; Ark. 397. Catherine M'Gavin, H.C., May 11th 2 Peter M'Manimy and Petsr 1846 ; Ark. 67. Higgans, H.C., June 28th 1847 ; Ark. 4 Case of Fairweather svpra 321. John M'Bae and Catherine M^Bae, 3 Isabella Lambert, March 11th Glasgow, Sept. 20th 1842 ; 1 Broun 1839; Bell's Notes 81.— John Craw 395 and Bell's Notes 82.— Case of andMaryBeeorCraw,H.C.,Nov.8th Fay evpra. 1839 ; 2 Swin. 449 and Bell's Notes 6 Hume i. 299.- Alison 1 162 and 81. — John Bobertson, March 15tb cases of Buchanan: and Craig there. 198 DRUGGING WITH FELONIOUS INTENT. Punishment. Exposure crim- inal though no injury ensue. If death ensue it is culpable homicide or murder. Placing child in danger. Punishment injuries actually happen are aggravations of the offence, and if death ensue this will raise the guilt to culpable homicide (1), or possibly even to murder (2). It is also criminal wilfully to place a child in a situation of danger to its life, although strictly speaking there be no deser- tion. Where a mother placed her child in a basket and sent it as a parcel by rail without informing the railway officials that there was a child in it, or giving the child into any one's charge, the Court held that such an act was undoubtedly punishable (3). The punishment of such offences is imprisonment, or in aggravated cases, penal servitude. DEUGGING WITH FELONIOUS INTENT. Drugging. Question whether drug- ging alone criminal. The administration of stupefying drugs though not done for the purpose of producing death or facilitatiDg a rape, may stiU amount to a highly criminal offence. "Where they are administered so as to stupefy and de- prive of consciousness, even though there be no further intention of evil, or although no further damage result, this would seem of itself a sufficient injury to constitute a criminal offence. Of course it must be done wantonly, and not for proper and lawful purposes. " Wilfully and " maliciously or culpably and recklessly administering " to or causing to be taken (or inhaled) by any of the " lieges, any stupefying drug (or vapour), whereby they " are reduced to a state of unconsciousness or stupor," or some similar statement, would probably be held a relevant charge. No case, however, has as yet occurred in which such an act stood alone, the prosecutor having 1 Hume i. 299 and cases of Gra- ham : and Eilgour there. — Alison i. 162. 2 Elizabeth Kerr, H.C., Dec. 24th 1860;.3Irv. 645. 3 Eaohel Gibson, Glasgow, Jan. 8th 1845 ; 2 Broun 366. OPPRESSION UNDER COLOUR OF LAW. 199 always had it in his power to add a charge of actual Drugging. injury to the person, or of intent, such as intent to steal Generally com- the property of the f erson stupefied (1), or intent to injury or a prevent "any of the lieges from following their lawful tent'""""' "business, or exercising their political rights" (2), and similar charges. And to a certain extent even these cases bear out the relevancy of such a charge as that above supposed, the injury or intent having been gener- ally alleged in the form of aggravations, preceded by the word " especially." But at the time when these cases occurred, the word "especially" was sometimes used not as heading an aggravation, but as synonymous with " particularly," and therefore they would probably not be held to establish such a charge by precedent. How- ever, as before observed, it seems impossible to doubt its relevancy as matter of principle. The punishment of such an offence is either imprison- Ponishment. ment or penal servitude, according to circumstances. OPPEESSION UNDER COLOUE OF LAW. Judges or other ofBcers of the law are liable to Oppbession, punishment, if they make use of the power given them by their of&ce to oppress the lieges. Such a charge may even be relevant against a private party, where, under colour of law, oppressive proceedings are em- ployed (3). Of course there must be such overt acts as Overt act must manifestly indicate an intent to oppress, in order to 1 Alison i. 629.— David Wilson 1833 ; Bell's Notes 90. and others, Dec. 22d 1828 ; Bell's 3 Many offences of this class par- Notes 22. — John Stuart and Cathe- take of the character of fraud, but rine Wright or Stuart, H.O., July are noticed here, as they are truly 14th 1829 J Bell's Notes 22. of the nature of personal injuries. 2 Alex. Mitchell, Aberdeen, April 200 THREATS. Oppbessioit. Oppression generally charged in form of aggra- vation. Punishment. constitute a relevant criminal charge (1). Such prose- cutions are not likely to occur at the present day except in the case of inferior officers, or of private individuals falsely pretending to have legal authority. And 'in such cases the oppressive conduct, under colour of law, may generally be charged as an aggravation of another offence. Thus, of late years, in the small number of cases of this sort which are reported, the oppression has formed only an element of a more extended charge. For example, in one case assault was charged as aggra- vated by being committed by an officer of the law upon a prisoner under his charge, and for the purpose of ex- torting a confession of guilt (2). And in another case the charge was combined with a charge of extortion — ^the wickedly and feloniously " obtaining of goods or money " by extortion and oppression of the lieges ; more par- " ticularly the wickedly and feloniously extorting of " goods or money from the lieges without legal warrant, " and under colour of law, by instituting or threatening " prosecutions for alleged offences, to the oppression of " the lieges and in defraud of public justice " (3). The punishment of such offences is either penal servi- tude or imprisonment, according to circumstances. THEEATS. Thkeats. Threats to murder, or do serious injury to another in his person or property, or to accuse him of, crimes or immoral offences, may be prosecuted criminally. Usually 1 Hnme i. 408, 409 and cases of Fife: and Kennedy and Nimmo there.— Alison i. 632, 633.— Alex. Waddell and others, E.C., Jan. 19th 1829 ; Bell's Notes 92. 2 Alex. Findlater and Jas. Mac- dongall, Glasgow, Jan. 9th 1841; 2 Swin. 527 and Bell's Notes 92. 3 Geo. Jeffrey, H.C., Jan. 22d 1840 i 2 Swin. 479 and Bell's Notes 92. — See also Geo. Ejppen, H.C., Nov. 6th 1849 ; J. Shaw 276. THREATS. 201 there is an additional element of intention, namely, a Oppkession. purpose to extort money, or to compel the person to do. Generally or abstain from doing, something. If the threat be of a by iSenr^ very serious character, it matters not whether it be ver- Verbal threat, bal or written. Thus, verbally to threaten to burn a man's house, or to put him to death, or to accuse him of a crime, if so done, and for such a purpose, as reasonably to alarm, is punishable (1). But the most common case of charges of this sort is that of writing and sending threatening letters, whether signed or unsigned (2). The crime is complete when the letter is despatched, although it do not reach the person to whom it is addressed (3). It is no defence to such a charge that the demand made man"ed fiistiy was for something which was justly due to the writer of ^^^^f "° *®' the letter, no one being entitled to concuss another by such means (4). Further, where the threat is to accuse Where threat „ . , , , , T. ,.,,., . to accuse of 01 crime, unless some demand be complied with, it is crime, no de- not a good defence to maintain that the person was truly p^ty trniv guilty of the crime, the question whether the accusation guilty, was true or false not being involved iiji the inquiry, as the offence consists in attempting to enforce a demand by Ulegal means. It is therefore not necessary for tjie prosecutor to negative the truth of the accusations made 1 Hume i. 133 and cases of 26th 1846 ; Ark. 4. Somerville: Grant: Buchanan: and 3 Thos. Hunter and others, H.O., Hepburn there.— Alison i. 443, 444. Jan. 3d to 11th 1838 ; Bell's Notes — More ii. 404. — Jas. Miller, H.C., 111 and Swinton's Special Beport Nov. 24th 1862; 4 Irv. 238 (Lord —See also Hume i. 441, case of Justice Olerk Inglis' opinion). Jaffray in note 2, where it was held 2 Hume i. 439 and case of f raser sufficient that the accused had drop- there. — i. 441 cases of Gray : Gil- ped the letter near the house of the Christ: Edwards: and Gemmell person to whom it was addressed, and there. — Alison i. 576. — More ii. although the threats contained in 403. — John Ledingham, Aberdeen, it were not directed against the April 14th 1842 ; 1 Broun 254 (In- person to whom it was addressed, dictment). — Chas. Boss, H.C., July 4 Alex. F. Crawford, H.G., Jan. 27th 1844; 2 Broun 271 (Indict- 6th and Feb. 11th 1850; J. Shaw ment). — Geo. Smith, H.C., Jan. 309. 202 THREATS. Oppeession. Question where threat to expose im- morality. Aggrava- TIOHS. Punishment. by the offender (1) nor is it competent for the latter to prove their truth (2). Whether it would amount to a criminal offence to write a letter to a person who is liv- ing in an incorrect and immoral manner, threatening him with exposure, for the purpose of extortion, or whether, in the event of the act of sending such a letter being held criminal, proof of Veritas might be competent, has not been decided (3). In strict principle there seems no distinction between such an offence, and those above mentioned. The difference between an accusation of crime, and an accusation of immorality seems of no im- portance, because, in such cases, it is the attempt to extort which is truly the act that society is interested in suppressing. If a person be guilty of crime or immo- rality, society has no interest to prevent the truth from coming to light, but it has an interest to prevent knaves from practising upon the fears of others, in order to make gain to themselves. Threats may be aggravated by various circumstances, such as a purpose to prevent the giving of evidence, or in revenge for evidence or information given to the authorities (4), or for the purpose of intimidating elec- tors (5), or masters, or workmen (6), or some similar purpose. Threatening judges or magistrates in reference to their official conduct is also considered a high crime (7). The punishment of all such offences is penal servitude or imprisonment, according to circumstances. 1 Alex. F. Crawford, H.C., Jan. 6th and Feb. 11th 1850 ; J. Shaw 309. 2 M'Ewan V.Duncan andM'Lean, H.C., July 12th 1854 ; 1 Irv. 620, and 26 So. Jur. 572. (In the Jurist the case is named M'Ewan v, Barty.) 3 Alex. P. Crawford, H.C., Jan. 6th and Feb. 11th 1850 ; J. Shaw 309 (Lord Justice Clerk Hope's opinion). 4 Ohas. Boss, H.O., July 27th 1811; 2 Broun 271. B The Act 17 and 18 Vict. c. 102, § 5, makes special provisions on this subject, but the common law is amply sufficient to meet such cases. 6 The Acts 6 Geo. IV., ... 129, and 22 Vict. o. 34, provide specially for this case. 7 Act 1540, o. 104.— Peter Por- teous, Mar. 12th 1832 ; Bell's Notes 106 and 4 8c. Jur. 384, and 5 Deas and Anderson 53. — Alex. Carr, Aberdeen, April 27 th 1854; 1 Irv. 464. 203 FALSE ACCUSATION. To constitute a criminal offence hj false accusation False accu- there must be such a manifestation of malice as plainly indicates an intention to injure. Mere indiscreet talk- tent^reciuieSe. ing, though it may be injurious, obviously cannot be made the ground of a crimiual charge. In the case of slandering judges, the law holds it criminal to defame them, or in- " ^^" suit them ia any way, in reference to their office, as by charging them, either verbally or in writing, with cor- ruption, or oppression, or breach of duty (1). On the other hand, in the case of private individuals, it requires a very strong case of slander to found a criminal charge, unless committed in such circumstances, and with such accompaniments as to constitute a breach of the peace (2). But it is undoubtedly criminal to raise and circulate Charge of against another a charge of having committed a crime, anXerf *'°° when the accused knows the falsehood of the charge, and* acts from motives of malice (3) ; although even in such circumstances, where the offence goes no farther than slanderous talk, the injured party gene- rally applies to the civil court for redress. Ac- cordingly, for a considerable period, such offences have not been prosecuted criminally, except where the false charge went beyond the mere verbal gratifica- 1 Hume i. 341. — Alison i. 575, 2 Hume i. 343, 344, and oases of and case of M'Millan there. — Peter Gordon and M'Caul there. Porteous, H.C., Mar. 12th 1832 ; 3 Hume i. 341, and cases of Gor- Bell's ITotes 106, and 4 Sc. Jur. 384, don : Brown : Johnstone : and and 6 Deas and Anderson 53. — Brisbane there, which were cases Alex. Carr, Aberdeen, April 27th where the charge was for malicious 1854 ; 1 Irv. 464. — See also 1540, c. prosecution. — ^i. 342, and case of 104, which, in the case of Porteous, Kennedy there, was held not to be in desuetude. 204 FALSE ACCUSATION. False Accn- SATION. Kaking false charge to authorities. tion of spite. Where such a charge is made for purposes of extortion, it faJls under the head of " threats."* But the most malignant form of a false charge, and that which is always prosecuted for the public interest, is the making a false criminal charge against another to the authorities, where the act not only affects the feel- ings and reputation of the party, but tends to deprive him of his liberty and to pervert public justice. Two such cases are reported as having occurred since the publication of the treatises of Baron Hume and Sir Archibald Alison. In one the crime was charged as "wickedly and feloniously making a false accusation " of a criminal offence to any officer of police, or other " officer of the law, against any of the lieges, knowing " it to be false." And the purpose to extort was stated as an aggravation (1). In the other case the crime was charged as " The wilfully, wickedly, and feloniously " accusing an innocent person to the public prosecutor " or other officer of the law, as being guilty of a heinous " crime, for the purpose of perverting public justice, " and injuring the person accused in feelings and repu- " tation or liberty, the accuser well knowing the false- " hood of the accusation." And it was charged as aggravating the offence, first, that the person was in con- sequence committed to prison and charged with the offence by the public prosecutor ; and second, that the person was the wife of the accuser (2). In both of these cases objections were taken to the relevancy of the charge, - and were repelled. PuKisuMENT. The punishment in such cases is arbitrary, being either penal servitude or imprisonment, according to circum- stances. 1 Margaret Gallocher or Boyle and others, Glasgow, Oct. 6th 1859 ; 3Irv. 440. » Vide 200, 2 Elliot Millar, Jedburgh, Sept. 17th 1847 ; Ark. 355. 205 MOBBING. The crime of mobbing (1) consists in the assembling of Mob, how a great number oi people, and their combining against social order and peace, to the alarm of the lieges. As a general rule, cases of mobbing present features of vio- lence and criminality of a much more heinous descrip- tion than are necessarily implied in this definition, but the crime is complete wherever there are these elements of concourse, illegal combination, and the production of alarm. The term mobbing is not used in reference to Distlnotion combinations to defeat the national government, or to ^jng a™d™°''' accomplish a national revolution. Where the intention treason. of a concourse of people is the stirring up of national rebellion, the offence is more properly tried as treason. But on the other hand, it is not every case of poli- tical riot that falls under the head of treason. However political in its character, if it be merely local in its origin and in its action, and not part of an attempt at general insurrection, it may be properly tried as mob- bing (2). First, no fixed number of persons is necessary to con- mob no fixed stitute a mob (3). Whether an assemblage shall be '"™"'^- held a mob or not, depends more upon its conduct than its numbers. The Eiot Act recognises an assemblage of twelve or more as a suflScient number (4). 1 Offences of this class are gene- 613, S14, 515. — More ii. 400. rally ohaiged as " mobbing and 3 Hume i. 416. — Alison i. SIO. rioting." i Act 1 Geo. i. c. 6. 2 Hume i. 418, 419.— Alison i. 206 MOBBING. Illegal com- bination. Legal assembly taking up illegal purpose. Combination indispensable. No defence that assem- blage was vin- dicating public light Second, there must be an illegal combination among tbose assembled (1). But this does not mean that their coming together must have been illegal from the first. If a number of persons, assembled for a legal purpose, proceed as a body to violent and tumultuous conduct, they are guilty of mobbing (2). Thus, if a concourse of people, who have been called upon to assist officers of the law in the execution of their duty, proceed to acts of outrage and violence, or if a meeting, legally assem- bled, take up an illegal and violent purpose, the original legality of the assemblage does not prevent those who compose it from being guilty of mobbing (3). But on the other hand, there must be truly a combination, how- ever rapidly or casually arising. The mere occurrence of a sudden affray in an assemblage is not mobbing, unless it contiuue so long, or develop itself in such a manner as to show that it has merged truly into a law- less combination (4). But if the conduct of an assem- bly manifestly indicates that a general confederacy in contempt of the public peace has been formed, though tacitly and suddenly, the crime of mobbing is commit- ted (5). And it has been held that where there is proof that the mob are combiaed and acting together for some unlawful purpose, although it may not be possible to trace what the purpose was, the members of the mob may stiU be convicted of the crime of mobbing (6). It must also be understood that it is no defence against a charge of mobbing that the assemblage was for the pur- pose of vindicating a public right, however just, such as a right of way, or the like. If a private individual is not permitted to vindicate his rights by force or intimi- 1 Hume i. 418.— Alison i. 513. 2 Hume i. 418.— Alison i. 513. 3 Hume 1.417 and case of Monro and others in note 1. — Alison i. 511. — John U. Bobertson and others, H.O., March 24th and 25th 1842 ; 1 Broun 152 ^ord Justice Clerk Hope's charge, p. 192, 193). 4 Hume i. 418. 5 Hume i. 418.— Alison i. 513. 6 Michael Hart and otheiB, HC^ Nov. 10th 1854 ; 1 Irv. 574 and 27 Be. Jur. 2. MOBBING. 207 dation, much less can such license be given to a con- Illmal oom- course oi people (1). Third, the mob must be in breach of the peace, and concoursk to to the fear of the lieges (2). A meeting which is being ^^6^.°*^ quietly conducted is not a mob, however wicked or even criminal may be its purpose (3). But where the assem- Actual violence blage is of such a character as to produce reasonable alarm for the safety of thelieges or their property, it is not necessary that any actual violence be done (4). If the lieges be put in alarm that is enough. If " a crowd col- " lect and act together, with intent to oppose the entrance " of a Presbytery into a Church where duty is to be " performed, and oppose such entrance by dense num- " bers, and by refusing to move, though there were no " noise or other acts, that would be mobbing and " rioting " (5). In the same way, if a concourse unmis- takably indicate purposes of violence, they are guilty of mobbing, though no overt act of violence or intimidation be committed at all, and though they ultimately disperse of their own accord (6). It is the duty of every good citizen not to encourage Guilt of mob- riotous proceedings by his presence. And therefore all ^ preaent the merely disorderly acts of a mob are chargeable against responsible for every one who was in it (7). If a mob be engaged in of niob."^ ^ ^^ throwing stones and breaking windows, it is not neces- 1 Alison i. 511, 512, and oases of H.C., Mar. 24th and 25tli 1842 ; 1 M'Phie and others : and Macdonald Broun 152 (Lord Justice Clerk and others there. — Thos. Wild and Hope's charge, p. 192) and Bell's others, Jedburgh, Sept. 14th 1854; Notes 108. 1 Irr. 552 (Lord Cowan's charge). 6 Hume i. 420, case of Fraser 2 Hume i. 416, 417, 419, and there. — Alison i. 517. cases of Paton and others : Barry : 7 Hume i. 423, and oases of Gil- Grant and others : Geddie and kie : GUohrist : Bobertson : and others : and M'Grigor and Lowrie Buchanan and others there. — in note 1. — Alison i. 510, 511. — i. 425 — Alison i. 520, 521, and oases More ii. 400. of Murison and others : M'Callum 3 Hume i. 417. — Alison i. 511. — and others : and Kettle and others More ii. 400. there. — Jas. Cairns and others, H.C., 4 Hume i. 419, 420.— Alison i Deo. 18th 1837 ; 1 Swin. 597 and 517. Bell's Notes 108. 6 John G. Bobertson and others, 208 MOBBING. What consti- tutes presence. Guilt OF MOB- sary that, at the trial of the rioters, it should be proved — ^— ^ separately against each of the accused, that he was seen to throw stones. The proof that the mob threw stones, and that he was one of the mob, is enough. What presence is sufficient to cause a person to be held a member of a mob, is a question of circumstances. If a person, on seeing a crowd assembled, merely go forward to see what is going on, or to inquire, and do no act showing that he joins in or approves of the mob's proceedings, he can scarcely be held guilty, Tinless he disobey an order given by some person in authority to go away, or refuse to as- sist to restore order. On the other hand, even though he remain quiet, continued presence after he has had time to see that the assemblage is one to the outrage of social order, may of itself be sufficient to infer guilt. It is the duty of every citizen in such circumstances, either to leave the assemblage, or if he remain, to use his influ- ence to put an end to the tumult (1). Here, however, there is room for a distinction. If a mob be formed where a number of people are assembled for a legal purpose, and especially if assembled in a particular capacity — ^for example, as parishioners to witness an induction — ^mere presence cannot infer any guilt at all The meeting being legally summoned, a person who, in such a case, remains quiet and takes no part in the riot, is not in fact a member of the mob at all. He may wait in the hope that order may be restored, and the business be proceeded with. Accordingly, ia such a case, presence alone affords no presumption of participation, and only those can be convicted against whom it can be proved that their presence was for the purpose of countenancing and aiding the mob in their lawless conduct (2). But even in Distinction where assem- blage legally convened. 1 Hume i. 423.— Alison i. 519. — Jas. Cairns andoihers, H.O., DeclSih 1837; 1 Swln. 597 andBeU's Notes 108 (Lord Justice Clerk Boyle's charge, referring to Lord Cockbum's speech when Solicitor-General in the case of the Edinburgh Biotera in 1831.) — See Alison i. 520. 2 Samuel M'Lachlan and others, May 4th 1831 ; Bell's Notes 108.— John G. Robertson and others, H.C., Mar. 24th and 25th 1842 ; 1 Broun 152 and Bell's Notes 109 (Lord Justice Clerk Hope's charge). MOBBING. 209 sucli a case, mere presence may become a participation guiltofmob. in the disorderly acts of the mob, if the meeting be put ^^^ an end to, by a magistrate ordering those assembled to meeting^ ^ disperse. If, after such an order given by the magis- °erse u *'i^ty strate, any person remain except to aid the civil power presence, to restore order, he remains, not as a member of a meet- ing legally convened, but as a member of the mob (1). While presence alone is sufficient to infer guilt of the More flagi-ant merely disorderly acts of a mob, the principle cannot be chargeable laid down so broadly where the acts are more highly aftiTOw'en-* criminal. But this at least is certain, that aU acts done gae^d. by a mob, if done in direct pursuance of the common purpose, are held to be the acts of every member of the mob. If the purpose of the mob be to burn a house, or to commit personal violence, regardless of the conse- quences, every one who is present and actively engaged along with the mob in their violent proceedings, is guilty of the fire-raising or the murder, (as the case may be), though the match be applied, or the fatal blow struck ' by one iadividual (2). But where there are such serious aggravations as these, it will not be presumed that the accused knew that crime of such a heinous character was intended, so as to make his presence alone sufBcient to convict him. In such a case, to entitle the prosecutor to a conviction of more than the simple crime of mob- bing, inferring guilt of the disorderly acts only, there must be proof of active participation of such a kind as to indicate, not merely that the accused was there as a rioter, but that he was there truly aiding and encourag- ing the actual species of outrage which constitutes the aggravation of the particular act of mobbing. There must be participation in the particular crime. Baron Hume 1 John G. Eobertson and others, Dec 30th 1842 ; 1 Broun 485 and . B:.C., March 24th and 25th 1842 ; Bell's Notes 110.— Alex. Orr and 1 Bronn 152 (Lord Justice Clerk others, H.O., Nov. 10th 1856 ; 2 Irv. Hope's charge.) 602 (Lord Justice Clerk Hope's 2 Hume 1. 425. — Alison i. 523, charge.) 624.— Will. Gibson and others, H.O., 210 MOBBING. Guilt of mob- expresses it thus, " all are guilty of the fire-raising or °™°" " murder who have been anywise active or zealous in "this part of the enterprise" (1). The converse of this rule is also true. The whole members of a mob are not held responsible for a serious crime done by one or more of the rioters, if not done in pursuance of the Member of a common object (2). If a mob be assembled for a disor- co^mittingT*' derly purpose only, such as pulling down an obnoxious murder or fence, or preventing the induction of a minister, and one of the mob, in a rage at some interference by the police, suddenly pull out a knife and stab a constable, this un- doubtedly is the act of the individual alone. Or if a mob enter premises to intimidate workmen or masters, and some members of it, unknown to the mob generally, take the opportunity to commit thefts, the theft cannot be charged against the mob, not having been part of the common design, nor truly forming a part of the execu- individuais tion of it (3). In the same way, if, after the general feMMaftefmob intentions of a mob have been fulfilled or prevented, dispersed. and after the mob has dispersed or left the place, persons who were members of it proceed to do criminal acts not in direct pursuance of the original design, the indivi- duals alone are chargeable with the offence (4). Person may he On the other hand, it is not necessary in order to infer lot present^ guHt of mobbing, or of the acts done by a mob, that the accused should have been present at the exact moment when a particular act was committed, or indeed that he should have been personally present at aU. The ordi- nary rule of law that the instigator is as guilty as the perpetrator,* applies with special force to the case of 1 Hume i. 425, and 428, 429. 3 Hume i. 425, 428.— Alison i. 2 Thos. Marshall and others, 524, 525, and case of Marshall there Perth, Autumn 1824 ; Alison i. already referred to. 524, 525. The Lord Justice Clerk 4 John G. Eobertson and others, Boyle stated his adherence to the H.O., Mar. 24th and 25th 1842; view he expressed in this case in 1 Broun 152 (Lord Justice Clerk Jas. Cairns and others, H.C., Dec. Hope's charge, p. 196, 197) and Bell's 18th 1837; 1 Swin. 697 and Bell's Notes 109. Notes 109. • Vick 5, 6,7. MOBBING. 211 motbing (1). In the ordinary case the instigation is Gciltofmob- merely to commit a single act, whereas the man who in- "™"" stigates an act of mobbing can have no estimate of the consequences which may result from it. And a person PerBon who who has been a member of a mob, and actively en- neoTss^Sy free gaged with it, is not necessarily free from the guilt of of guilt of what acts done after he has left it, if they are done in pursu- wards. ance of the common purpose (2). If a person has been Persons arres- captured by those in authority engaged in dispersing a ing mobTo^' mob, and the mob take up the new purpose of rescuing ™scue. him, the prisoner in custody may be guilty, art and part, of the proceedings of the mob in attempting to res- cue him, if he, by his conduct, lead to or encourage the attempt at rescue (3). The punishment of mobbing at common law is either Punishment penal servitude or imprisonment, according to circum- f^-^™^"^ stances. Strictly speaking a capital sentence does not Question of follow on a charge of mobbing at common law. Mem- tenoeVr moh- bers of a mob may be charged with murders committed Wngatoommon by the mob, but, in such cases, the murder is set forth as a substantive offence, the fact that it was committed as part of an act of mobbiug, being one which only affects the mode of proof of accession to the murder. And, therefore, in such cases, to warrant a capital sentence there must be an express conviction of murder. The Eiot Act (4) was passed in aid of the powers of the Eiot Act. magistrate at common law for the suppression of tumul- tuous assemblages. By this act, as amended, (5) it is made Tumultuous an offence punishable by penal servitude for life or not building's.'^ ° less than fifteen years, or by imprisonment for not more than three years, for an unlawful and tumultuous assem- , blage to destroy, or begin to destroy any recognised place 1 Hume i. 421. — ^Alison i. 518. supra. 2 Jas. Nicolson and John Shearer, 4 Act i. Geo. i. v. 5. Inverness, April 15th 1847 ; Ark. 6 Act 7 Will. iv. and 1 Viot. cap. 264. 91, as further amended by the penal 3 Case of Nicolson and Shearer, servitude Act 20 and 21 Viot. o. 3. 212 MOBBING. HiOT Act. Breaking building to effect entry not sufficient. Destroying or- naments not sufficient Destroying from within or demolishing roof sufficient Persons not dispersing within hour of proclamation. Forcible pre- vention of pro- clamatian. of worship, or any dwelling house, barn, stable, or other outhouse (1). To constitute this offence there must be a manifest intention to destroy, independently of such injury as is committed only for the purpose of getting inside the building. Breaking doors or windows _/rom without, in order to effect an entrance, does not faU within the sanction of the statute. Nor is the statutory offence committed by destroying the external ornaments of a house, if actual destruction of the building be not attempted. But destruction of any part of the building from within, or tearing down slates or lead from the roof falls within the statute (2). Demolition by tearing down is the only mode of destruci^^on mentioned by the Act, and accordingly to burn a building, or blow it up, does not constitute a contravention (3). The Eiot Act further provides that if twelve or more persons who are unlawfully, tumultuously and riotously assembled, to the disturbance of the peace, remain to- gether for an hour after proclamation made by a justice of peace, sheriff or under sheriff in a county, or by a justice of peace, or mayor, bailiff or other head officer, ordering them to disperse, they shall be liable t6 penal servitude for life, or not less than fifteen years, or to im- prisonment not exceeding three years (4). The pro- clamation cannot be made by an ordinary constable or peace-oflicer (5). Further, if any persons by force and arms, prevent the proclamation from being made, they are 1 TheAct52Geo.iii.c.l30extends the penalties to the demolition of manufactories and warehouses and colliery machinery and works. These acts, as well as that part of theAct of Geo. i. which is now being referred to, are not of much value in modem practice, as the abolition of capital punishment for such offences, re- moves any difference which previ- ously existed between the powers of the courts of justice in Scotland under the Statutes and their powers at common law. 2 Hume i. 434 and case of Darrachs there. — Alison i. 530. 3 Hume 1. 434. — Alison i. 630. 4 The punishment was death until the Act was amended by 7 Will. iv. and 1 Vict o. 91 which Act was amended by the penal ser- vitude Act 20 and 21 Vict c. 3. 6 Hume i. 435 and case of Faimey and others there. EIOT. 213 KaUe to a similar punishment. And those who are in Biot Act. the knowledge of the proclamation having been so pre- vented, and who remain riotously assembled for an hour after the time when the proclamation was prevented, are punishable in the same manner. It is not necessary that the mob have proceeded to ^°* necessary any overt act of violence, either to justify the reading of committed ac- the proclamation, or to bring the rioters within the '"* vioenoe. sanction of the Act after the lapse of an hour (1), That they are riotously assembled is sufficient. And all present ^m^d to°heir are presumed to hear the proclamation. But if a person proclamation. have only joined the mob after the proclamation, it will Case of person be necessary, in order to bring him under the high ifterpfociama- penalty of the Act, to shew that he was informed that ''""• proclamation had been made (2). RIOT AND BEEACH OF PEACE. All riotous conduct similar to the proceedings which Eiot and constitute mobbing, but in which the elements of great peace." °^ concourse, or of a common purpose, or either of them. Disturbance are wanting, is prosecuted under the denomination of cmmurse^oT^ " Eioting and Breach of the Peace," or " Breach of the common pur- Peace " alone (3). Eiotous and disorderly conduct by Eiotims con- one or more individuals is matter of daily prosecution ^^^^^ mdivi- in police courts (4). Breach of the peace may be com- Breach of peace mitted without any violence of conduct. Challenging a ence. 1 Hume 1. 435. — Alison i. 533. Stewart v. Mackay, H.O., March 14th 2 Hume i. 436.— Alison i. 634. 1859 ; 3 Irv. 341 and 31 Sc. Jur. 394. 3 John M'Cabe and others, Glas- — Sir Archibald Alison is scarcely gow, Jan. 12th 1838 ; 2 Swin. 20. — correct in saying that the term See also Michael Currie and others, " Eioting " is peculiarly applicable H.C., Dec. 19th 1864 ; 4 Irv. 578, to the outrageous behaviour of a (Lord Neaves' opinion.) single individual. — Alison i. 610. 4 See the case of Durrin and 214 RIOT. ElOT AND BREACH OF PEACE. Challenge. Disorderly oon- ductat meeting, or in church, or in a private house. Duelling. Attempting to pick pockets. Insulting lan- guage. Punishment. person to fight (1), or persistently behaving in a disorderly- manner at a public meeting, or in a church, are all breaches of the peace. Parties were held properly con- victed who persisted in interrupting, obstructing and disturbing the proceedings of a public meeting though admonished by the chairman (2). And where a person repeatedly and wilfully left a church in a noisy man- ner during service, thereby annoying and disturbing the minister and congregation, a verdict finding him guilty of breach of the peace, but negativing malice, was sus- tained (3). Breach of the peace may be committed in a private house or in private premises (4). Such acts are .sometimes charged under a different name, such as " violently invading the houses of the lieges " (5). In- deed, many offences which are prosecuted under other names, are truly at the same time breaches of the peace. All acts of assardt, including duelling (6), and even acts of mere stealth, such as attempting to pick pockets, may be prosecuted as police offences, on the footing that they are breaches of the peace (7). Insulting lan- guage without any accompanying violence by gesture of attack, or by protracted annoyance, does not consti- tute breach of the peace (8). The punishment of offences of this class is rarely ex- 1 Hume i. 442.— Alison i. 579, 580 Jas. M'Kechnie, June 18th and July 14th 1832 ; Bell's Notes 111 and 4 Sc. Jur. 692 In this case the question whether posting a person as a coward for refusing to fight a duel was a breach of the peace, was raised but not expressly decided. 2 Sleigh and EusseU v. Moxey, H.O., June 12th 1850 ; J. Shaw 369. 3 Dougal V. Dykes, H.O., Nov. 18th 1861 ; 4 Irv. 101 and 34 Sc. Jur. 29. i Matthews and Boddeu v. Linton H.C., Feb. 27th 1860 ; 3 Irv. 670. 5 Alison i. 633, 634 and cases of Watson and others: and Turner and others there. 6 Jas. B. Bum and others, H.C., Jan. 6th 1842 ; 1 Broun 1 and Bell's Notes 112. 7 Jackson v. Linton, H.O., Feb. 27th 1860 ; 8 Irv. 563. 8 Galbraith v. Muirhead, H.C., Nov. 17th 1856 ; 2 Irv. 520 and 29 Sc. Jur. 15.— See also Buist v. Lin- ton, H.C., Nov. 20th 1865; 38 So. Jur. 47 and 1 Sc. Law Bep. 35. NIGHT POACHING. 215 tended beyond imprisonment, and a fine is in minor Punishment. cases the usual punishment. NIGHT POACHING. Night poaching offences may be noticed here as par- definition taking principally of the character of offences dangerous to the peace and safety of the community. The law in reference to such offences is entirely statutory, and is embraced in two acts of parliament (1). For the Definition of purposes of both acts night begins with the expiry of ^^ the first hour after sunset, and ends at the beginning of the last hour before sunrise. The word game includes Definition of hares, pheasants, partridges, grouse, heath or moor game, ^^'"''' black game, and bustards (2). I. Any person who shall " by night uidawfuUy take poaching. *' or destroy any game or rabbits in any land whether t,Jing'on°iand " open or enclosed," or " enter, or be in any land, ^^^ instru- »/ ' jiQ^gQ^ for tsik— " whether open or enclosed, with any gun, net, engine, ing game. " or other instrument, for the purpose of taking or " destroying game," shall, upon conviction before two 1st offence. Justices (or before the Sheriff, § 10), be commit- ted for a period not exceeding three months, with hard labour, and shall, at the end of the imprison- ment, find caution, himself in ^ClO, and two sureties of ^£"5, for a year, failing which he shall be kept at hard labour till the caution is found, or till the expiry of six months additional. On conviction in the same 2d offence, manner of a second offence, he shall be committed for a period not exceeding six months, with hard labour, and thereafter find caution, himself in ^20, and two sureties of =£"10, or one of o&20, for two years, failing which, he shall be kept at hard labour tiU the caution is found, or 1 Acts 9 Geo. IV. c. 69.-7 and 8 S 13, incorporated with 7 and 8 Vict. 0. 29. Vict. o. 29. 2 Act 9 Geo. IV. c. 69, § 12, and 216 Poaching. 3d offence. Section sets forth one of- fence. One of several armed, all guilty. Taking game or rabbits on road. Assault by POACHER. NIGHT POACHING. till the expiry of one year additional. On conviction of a third offence (before the Court of Justiciary, § 11) he shall be liable to penal servitude for from five to seven years, or to be imprisoned with hard labour for any period not exceeding two years (1). At one time this section was dealt with as if the taking and destroying, and the entering or being upon land for that purpose, were distinct offences (2), and they were commonly libelled as such. But it has now been de- cided tha,t the section describes only one offence which may be committed in either of two different ways (3). The being on land with instruments applies not only to the person who has the instrument in his possession, but to those who are with him, and are participant in his pur- pose (4). The offence of unlawfully taking or destroying game or rabbits by night, has been extended to any one doing so "on any public road, highway, or path, or " on the sides thereof, or at the openings, outlets, or " gates from any such land into any such public road, " highway or path." (6) But there is no extension of the offence to being on a road with instruments for the pur- pose of taking game, the law as regards roads being confined to the actual taking or destroying (6). II. If any person offending in any of the manners above described, shall assault or offer violence with "gun. 1 Penal servitude is substituted for transportation by 20 and 21 Vict. 0. 3, § 2, as amended by 27 and 28 Vict. o. 47, § 2. 2 Jones and M'Bwan v. Mitchell, H.C., Dec. 23d 1853 ; 1 Irv. 334 and 26 So. Jur. 146 (Lord Justice Clerk Hope's opinion). — See also Geo. Duncan, KO., Deo. 21st 1852 ; 1 Irv. 130. 3 Geo. Duncan, H.O.. Feb. 29th 1864 ; 4 Irv. 474 and 36 Sc. Jur. 404. 4 Andrew Granger, Perth, Sept. 17th 1863 ; 4 Irv. 432 and 36 So. Jur. 3. This case overrules that of Geo. Binnie and Bob. Orrock, H.C., Mar. 15th 1827 ; Syme 177, which was a prosecution under the older statute, 67 Geo. iii. c. 90. 5 Act 7 and 8 Tict. o. 29, § 1. 6 John Bums and others, Perth, April 23d 1863 ; 4 Irv. 437 and 36 Sc. Jur. 184. (This was a case of an attempt to connect the Act of Victoria with another section of the Actof Geo. IT., but the objection which was sustained there, would apply on the same principle to a charge of being on a road, armed with instruments for the purpose of taking or destroying game.) NIGHT POACHING. 217 " cross-bow, fire-arins, bludgeon, stick, club, or any other Asradlt by " offensive weapon whatever,'' toward any person autho- ^— rised to apprehend him, he shall be liable, whether his offence be a first, second, or third, to penal servitude for from five to seven years, or to imprisonment and hard labour for any term not exceeding two years (1). This Case of poacher enactment applies although the accused was not appre- different knd. hended on the spot, but was pursued beyond the bounds of the land where the poaching offence was com- mitted (2). Stones picked up upon the ground are of- stones offeu- fensive weapons within the meaning of the act (3). ^^^ weapons. III. " If any persons, to the number of three or Offence by " more together, shall, by night, unlawfully enter or be gg^g^'*^ ^^^' " in any land, whether open or enclosed, for the purpose " of taking or destroying game or rabbits ; any of such " persons being armed with any gun, cross-bow, fire-arms, "bludgeon, or any other offensive weapon," they are liable to penal servitude for a period of not more than fourteen, or less than five years, or to imprisonment with hard labour not exceeding three years (4). As already This offence , . 1 J.1 • ia? • J. J. 1 J 1 ii not committed mentioned, this onence is not extended by the more re- on road. cent enactment to the case of persons being on a road or Sufficient if path (5). It is not necessary that more than one of the be armedi^ ^ party should be armed, provided they are in company with one who is armed, the statute saying, " any of such per- sons being armed." (6) 1 Act9eeo.IV.c.69,§2,and7and April 23d 1863; 4 Irv. 437 and 36 8 Vict. c. 29, § 1, referring thereto, Be. Jur. 184. as modified by 20 and 21 Vict. c. 3, 6 Thos. Limerick and others, 5 2, and 27 and 28 Vict. c. 47, § 2. Glasgow, Jan. 3d 1844 ; 2 Broun 1. 2 John Little, Dumfries, April (The charge to the jury in this case 1830 ; Alison i. 554, and Lord plainly implied that if the two per- Wood's indictments. sons who were unarmed were to- 3 John M'Nab and others, H.C., gether with the armed person for Mar. 14th 1845 ; 2 Broun 416. the purpose stated in the Act, that 4 Act 9 Geo. IV. o. 69, § 9, modified they were guilty of the offence). — as regards punishment by 20 and 21 See also observation by Lord Deas Vict. c. 3, § 2, and 27 and 28 Vict. in Andrew Granger, Perth, Sept. c. 47, § 2. 17th 1863 ; 4 Irv. 432 and 36 Sc. 6 John Bums and others, Perth, Jur. 3. 218 NIGHT POACHING. Teem nuLAw- The term " unlawfully enter or be in any land " is ap- ^^I±I: plicable to the tenant of the land, both as regards Tinia™fiiUy^bs offences by an individual, and offences by three or on land. ^^j.^ persons together (1). A nice question may pro- vicTioN. bably one day arise for decision, viz. : Whether a ttefprevbus^' previous conviction of destroying game on a road or conviction un- path under the Act of Victoria shall be held to apply to der one statute ,.,, ,,. „ pp iix- available in and raise the penalties oi an onence by destroying game §"^^0^6^" on land, or being on land with instruments under the Act of George IV., and vice versa. The intention of the Act of Victoria plainly was to add another alternative to the offence in the first section of the Act of George IV., but it is difficult to say whether this can be held to be effectually done by the enactment, that " aU "the pains, punishments, and forfeitures, imposed by " the said Act (Geo. IV.) upon persons by night unlaw- " fuUy taking or destroying game or rabbits,- in any land, " open or enclosed, as therein set forth, shall be appli- " cable to and imposed upon any person " who offends against the Act of Victoria, and that "the said Act, " and all the powers, provisions, authorities, and juris- " dictions, therein or thereby contained or given, shall " be as applicable for carrying this Act into execution, " as if the same had been here specially set forth." It would probably he held, in the absence of an express clause to that effect, that convictions under the one sta- tute cannot be applied to charges under the other. BEBACH OR NEGLECT OF DUTY. By opfioum. ^-Qy flagrant neglect of duty by judges and magis- Judges. trates or other officials, or refasal to execute duty, or en- 1 Smith V. Toung, H.O., March but the principle is plainly applicable 8th 1856; 2 Irv. 402 and 28 Sc. to the tenant being on the land with Jur. 338. (This case related only several other persons in oonti-aven- to an offence by one individual, tion of 3 9.) BREACH OR NEGLECT OF DUTY. 219 couragement by magistrates of offences against the peace By officials. or the like, are punishable at common law (1). Even in recent times such offences have been made the subject pgrsonsin ub- of trial. For example, before the passing of the Special He ofSces. Post-Office Statutes, "wilful neglect of duty and violation " of the trust and duty of his of&ce, as a public officer in " the course of his employment as such," was held a relevant charge in the case of a letter carrier accused, inter alia, of detaining letters (2). And later still a similar charge was sustained against a post-office official for, inter alia, absenting himseK from the post-office at which it was his duty to give personal attendance (3). A charge of neglect and violation of duty by an excise officer has also been sustained (4). It is not necessary jif^t necessary that any actual iniury to the public service should have that injury to •> J J r public service resulted from the neglect or violation of duty committed should have re- by the accused (5). Driving vehicles or riding horses in a furious manner b^ persons ik in a public place, to the danger of the lieges is punish- chakge of '^ r ' . r . ox- VEHICLES OK able. And on the same principle it cannot be doubted, vesseis. (though the case has not occurred in this country), that if ing?°" a steam vessel were propelled at a high speed within a harbour crowded with shipping, or if the masters of two steam vessels were to race to the danger of their own pas- sengers and ofother shipping, that such a proceeding would be punishable at common law (6). Offences of this sort injury result- are of course more highly punishable where positive ^f^^™*^^"^*' injury results to the persons of the lieges (7). But 1 Hume i. 410, 411, and cases of SSeeobservationsbyLordJustice the magistrates of Lanark : Bell Clerk Hope in David Smith and and Bannatyne : Anderson : Hony- Will. M'Neil, Glasgow, May 5th man : and Stewart there.— Alison 1842 ; 1 Broun 240, and in Thos. i. 634, 635. Henderson and others, H.C., Aug. 2 Donald Smith, H.C., June 4th 29th and 30th 1850 ; J. Shaw 394. 1827; Shaw 193 and Syme 183. — (The observations referred toin this See Alison i. 635. latter case occur on p. 439.) 3 Henry P. Adie, H.C., July 24th 7 Hume i. 192, case of Bartholo- 1843 ; 1 Broun 601. mew and others in note 2. — Alison 4 Ohas. Macullooh, Nov. 10th i. 627.— John Orr, Jan. 8th 1840; 1828; Bell's N6tes 106. Bell's Notes 76. 6 Case of Adie supra. 220 By PBK30NS Df CHARGE OF VEHICLES OE VESSELS. Where rash- ness not in a public place, there must be an accident to found a pro- secution. Charge of dan- ger to life held irrelevant But charge of injury and dan- ger combined sustained. Statutory rules as to seamen. BREACH OR NEGLECT OF DUTY. although acts of rashness such as those above described are punishable even where no accident results, they are only held to be so because of their manifest wilfulness, and of the general danger caused to the lieges by such wilful proceedings in a public place or with a public conveyance. In all other cases of rashness or neglect of duty, as in riding or driving on the wrong side of the road, or steer- ing carelessly, or failing to keep a good look-out at sea, or in careless management of machinery or the like, the mere act itself does not constitute a relevant point of dittay, even although it be averred that it was to the danger of the lives of the lieges. In all such cases there must have been a resulting injury to constitute a good criminal charge. Thus " Culpable Neglect of Duty by "a foreman of brushers or any other person employed in " or in connection with a coalpit, whereby any of the " lieges are put in danger of their lives or persons " was held to be an irrelevant charge (1). But such a charge is competent if coupled with a charge of positive injury, e.g., " whereby there is occasioned injury to the person " and danger to the life of any of the lieges " (2). By statute (3) if a master, seaman or apprentice of a British ship, by "wilful breach of duty, or by neglect of " duty, or by reason of drunkenness, does any act tending " to the immediate loss, destruction or damage of such " ship, or who by wilful breach of duty or by neglect of " duty, or by reason of drunkenness refuses or omits to " do any lawful act proper and requisite to be done by "him for preserving such ship from immediate loss. 1 ThoB. Simpson, Ayr, April 8th 1864; 4 Irv. 490 and 36 So. Jur. 555. — See also Bob. Toung, H.O., May 20th 1839 ; 2 Swin. 376 and Bell's Notes 76. 2 Thos. Houston and Jas. Ewing, Glasgow, April 23d 1847 ; Ai'k. 252. (Indictment). — Alex. Dickson, Jedburgh, Sept 16th 1847 ; Ark. 362. (Indictment) Jas. Fin- ney, H.C., Feb. 14th 1848; Ark. 432. (Indictment). — John Drysc^ale and others, H.O., March 13th 1848 ; Ark. 440. (Indictment).— Thos. Henderson and others, H.O., Aug. 29th and 30th 1850 ; J. Shaw 394. Indictment) — John Latto,H.C.,Nov, 9th 1857; 2 Irv. 732. (Indictment). 3 Act 17 and 18 Vict c. 104> §239. BREACH OR NEGLECT OF DUTY. 221 " destruction or serious damage, or for preserving any By persons in " person belonging to, or on board such ship, from im- vehSs' ob "mediate danger to life or limb," commits a misde- ^^^°"'- meanor (1). Lastly, those cases of culpable use of firearms which Bt beckless do not directly amount to assault, may be noticed here. aems. Firing into an inhabited house in order to intimidate Firing intp • 1 /r.\ r. / s house to alarm. the residents (2), or out of wanton recklessness (3), are indictable offences, though no one was in the room which was fired into. If any one who happened to be in the room, unknown to the accused, received injuries, that would be an aggravation of the offence. There are Carelessness, besides many cases of culpable and reckless discharge of fire-arms where there is no intention to injure or alarm but only a thoughtless disregard of the safety of others (4). The recklessness of the act is generally a question of circumstances, and is estimated in practice by the re- sulting injuries, as such cases are seldom prosecuted, except where personal injury has taken place. The punishment of all offences of this class is penal Punishmeht. servitude or imprisonment according to circumstances. In less serious cases a fine is sometimes the only punish- ment inflicted. 1 Will. Cardno, H.C., Feb. 20th 4 Temple Annesley, Deo. 27th 1854; 1 Irv. 366.— John Martin, 1831; Bell's Notes 76. —David H.O., July 22d 1858 ; 3 Irv. 177. Johnston and Will. M'Kune or 2 Bob. Sprot and others, Ayr, M'Queen, Dumfries, April 7th 1842 ; May 2d 1844 ; 2 Broun 179. 1 Broun 214 and Bell's Notes 76.— 3 David Smith and WiU. M'Neil, Philip Turner and Peter Eennie, Glasgow, May 5th, 1842; 1 Broun Inverary, Sept. 22d 1853; 1 Irv 240 and Bell's Notes 76. 284. 222 IRREGULAE MARRIAGE. Statutory OFFENCE. Any person celebrating marriage without banns or certificate of banns. Person not a minister celebrating a marriage. Fraudulent pretence of being minister not essential. Performance of religious cere- monial sufficient. The unauthorised celebration of marriage is not an offence at common law (1). But by statute if any person, whether a minister of religion or not, performs the marriage ceremony " contrary to the established " order of the kirk," — ^that is, without banns having been proclaimed or a certificate of banns presented to him — ^he is liable to banishment from Scotland under pain of death if he return (2). Also, if any person, not being a priest or minister of religion, duly vested in his ofi&ce, shall celebrate a marriage between parties, he shall be liable to the same punishment (3). This does not necessarily imply that he actually pretends to be pro- perly qualified to perform the of&ces of a minister of religion. Falsely assuming the character of a clergyman, and performing clerical functions is a crime at common law (4), and falls under falsehood, fraud, and wilful im- position.* But although he does not pretend to be, and is known by the parties whom he marries not to be, a cler- gyman, still, if he assume ministerial functions, and cele- 1 John Ballantyne, H.C., Mar. 14th 1869 i 8 Irv. 352, and Appen- dix i., p. 667, and 31 So. Jur. 387.— Alison i. 647 contra. 2 Act 1661, c. 34.— Hume i. 465, 466, and cases of Duguid: Muir: Wyllie and Strang: Craighead: and Wilson there. — Alison i. 646. » Vide 3 Act 1661, c. 34, as amended by 4 and 5 Will. IV. c. 28. 4 Hume i. 467, and case of Craig- head there. — John Ballantyne, H.C., Mar. 14th 1859 ; 3 Irv. 352 (Lord JustioeClerk Inglis' opinion, p. 373) and 31 Sc. Jur. 387 (do., p. 391). 104. BIGAMY-. 223 brate a marriage, he is liable to the penalty of the sta- Statutory tute. To what extent the assumption must go, is a '. question depending upon the circumstances of each case (1). And no ceremonial, such as the mere witness- ^"* ?° offence , . , . II notning ing of exchange of consent by a magistrate falls within done of a the Act, unless there be some performance of a religious character. character, such as offering up prayer, or pronouncing a benediction (2). BIGAMY. Bigamy, or the contracting of a second marriage by a Statutory ,.,,,.-„,. 1 . . 1 AKD COMMON person dunng the life oi his or her spouse, is a crime by law offeecn statute (3), and by the common law of Scotland (4). The statute treats it as perjury, but it is now usually prose- cuted at common law. "Where either marriage was celebrated in facie ecclesice, Irregularity it is not the less bigamy because banns were not pro- marriage. claimed. Thus,where the clergyman deponed that, at the Banns not second marriage, a certificate of the names of the parties had been given in to the session-clerk for proclamation, and that he mistook it for a certificate of proclamation, the objection that the informality prevented the second marriage from being so completed as to constitute bigamy was overruled (5). And in another case, where it was objected that the prosecutor had failed to prove the first marriage, as he had not proved that banns had been proclaimed, although the marriage was ceremoni- ally performed by a clergyman, it was laid down by 1 John Ballantyne, H.C., Mar. of Nicolson there. — More ii. 417. 14th 1859 ; 3 Irv. 352 (Lord Justice 3 Act 1551, c. 19. Clerk Inglis' opinion, p. 373), and 4 Hume i. 459. — Alison i. 536. 31 Sc. Jur. 387 (do., p. 391). 5 John M'Lean, Perth, Oct. 3d 2 Hume i. 465, and case of Lyon 1836 ; 1 Swin. 278 and Bell's in note 1. — Alison i. 545, and case Notes 112. 224 BIGAMY. iRREGULARlrr IN RITHEB MABRIAQE. Wholly irregular marriage sufficient. Question whether habit and repute or promise 8vhs. cop. sufficient. Lord Justice Clerk Hope, " with the full concurrence of " Lord Mackenzie :" — First, that the words, " lawfully " married by," (in the libel) meant only that the cere- mony was regularly peformed by Dr Eose (the clergy- man) ; second, that the husband whoseduty it was tomake every arrangement for the marriage, was not entitled to state the objection that he had omitted anything on the performance of which by him the wife was entitled to rely ; third, that the presumption in law, as to the cele- bration of the ceremony by the legal officer — the clergy- men — was, that all requisites had been complied with ; and fourth, that, even if proclamation had been omitted in the first marriage, still the crime of bigamy was com- plete (1). Further, it is now settled that neither mar- riage need be regular (2). But it has not yet been de- cided whether a marriage not constituted by any cere- mony, but only by habit and repute, or promise svhse- quente copula, can be relevantly libelled to constitute bigamy (3). Perhaps, if the cohabitation was long con- tinued, and of universal reputation, a second marriage might be held criminal (4), but the great difficulty would be the libelling of the place and manner of the first marriage. In an early case an objection to a libel that these particulars were not given was sustained. Possibly a • written acknowledgment, if produced and libelled on, would be sufficient (5). 1 Duncan Maodonald, Glasgow, Deo. 21st 1841 ; Lord Justice Clerk Hope's MSS. 2 Wm. Brown, H.C., Dec. 24th 1846 ; Ark. 205 (1st marriage irre- gular) — Will. Sharpe or Macfie, H.O., July 10th 1843 ; 1 Broun 668 and Bell's Notes 112 (2nd marriage irregular). — Septimus Thorhum, Glasgow, Jan. 4th 1844; 2 Broun 4 (2nd marriage irregular). — Jas. Purves, H.C., Nov. 20th 1848 ; J. Shaw 124 (2ud marriage irregular, but followed up by regular cere- mony). — Abraham Langley, H.O., June 9th 1862 ; 4 IrVi 190 and 34 So. Jur. 641 (both marriages irre- gular).— Hume i. 459, 460 contra. — Alison i. 536, 637 contra. 3 John Armstrong, H.C., July 15th 1844; 2 Broun 251 Abra- ham Langley, H.G., June 9th 1862; 4 Irv. 190 and 34 So. Jur. 541. 4 Hume i. 461. — Alison i. 637. 6 John Braid alias Baird, H.C., Feb. 24th 1823 ; Shaw 98. INCEST. 225 The first marriage must have heen between parties First mak- lawfuUy entitled to marry (1), and it must have been subsisting at the time of the second marriage. It is KIAOE MUST BE LEQAL AND SUBSISTING. a good defence that the accused was legally divorced Divorce, before contracting the second marriage (2), but it is no defence that legal proceedings are in progress, unless a decree"have been pronounced (3). The defence that a Decree of di- ■ J -Vi 1, TJ vorcea defence, decree has been pronounced will be a valid one, even though after- though it be afterwards set aside, unless this be done^'"''*^^^**^''^^- on the ground that it was obtained corruptly (4). The Groimd to be- ^ . 1-111 li6V6 spouse accused has a good defence if he can prove that he had dead a defence. truly reasonable grounds for believing that the other spouse was dead at the time he contracted the second marriage (5). Whether impotencv of the other spouse Question whe- V \ J.1 J I 4.1, V. ■ 4. t''8'" impotency may be relevantly averred to prove the non-subsistence of spouse a de- of the first marriage, has not yet been decided (6). *®"°®' The second marriage, if duly and formally celebrated, need not be otherwise legal. It is not a marriage at all, Second mae- but is an illegal connection, on a criminal pretence of mar- not be legal. riage, and therefore it is not affected by the fact that it is offence is a otherwise vicious, as, for example, by being incestuous (7). tSiraTf mlr- The punishment of bigamy is generally imprisonment, p*^®" but in aggravated cases penal servitude is inflicted. ■ INCEST. Incest is the crime of carnal intercourse between near Natuee of relations. There must have been actual connection ; o^^™*^""' 1 Hume i. 461.— Alison 537, 538. Will. Masterton, H.O., Jan. 16th 2 Hume 1. 461.— Alison i. 538. 1837; 1 Swin. 427 and Bell's Notes 3 Alison i. 639, and case of Hen- 113. (Informations were ordered, derson there. — More ii. 416. and the Crown ultimately declined 4 Hume i. 461. — ^Alison i. 638. to press for a decision, and paid the 5 Hume i. 461. — Alison i. 689. — expenses of the accused. That this More ii. 415. — ITorman Macdonald, was the result of the case is stated Glasgow, May 6th, 1842 ; 1 Broun on the authority of the accused's 238. counsel.) 6 Hume i. 461, referring to p. 456. 7 Hume i. 462.— Alison i. 639.— See Fraser i. 79. — More ii. 41S. — More ii. 415. 226 INCEST. Natuke of OFFENCE. Parties must have known relationship. Forbidden mere attempt is not sufficient (1). The relationship - must have been known to the parties ; but this will be presumed in the absence of counter-proof (2). The general rules are those of the eighteenth chapter of Leviticus (3). The following are undoubtedly forbidden degrees (4) : — Parent and chUd. Step-parent and step-child. Parent-in-law and chUd-in-law. Grandparents and grandchildren (5). Husband and granddaughter of his wife; wife and grandson of her husband. Brother and sister. Half-brother and half-sister. Uncle and niece (6). Aunt and nephew (7). Nephew and uncle's wife. Niece and aunt's hus- band. Man and brother's wife. Whether this rule applies to a brother's widow is a more difficult question (8). In one early case it was held to be incest (9). Woman and sister's husband (10). This involves the much vexed question of marriage with a deceased wife's sister. Wife and husband's brother's or sister's son. Hus- band and wife's brother's or sister's daughter (11). 1 Hume i. 452 Alison i. 566. 2 Hume i. 462. — ^AEson i. 565. — More ii. 414. 3 Act 1567, 0. 14, 15.— flume i. 446, 447. i Hume i. 448, 449.— Alison i. 562 to 564. 5 This extends by construction to all ascendants and descendants in the direct line. — See Fraser i. 70. 6 Jean Stewartand John Wallace, jun., Perth, Oct. 11th 1845 and H.O., Not. 24th 1845 ; 2 Broun 544. 7 This extends by construction to grand-uncles and grand-aunts. — See Fraser i. 71. 8 Deuteronomy xxt. 5. — See Fraser i. 72. 9 Hume i. 449, and case of Irvine there. 10 Hume i. 449^450.— John Oman, Inverness, April 14th 1856 ; 2 Irv. 146 and 27 Sc. Jur. 368.— See also More ii. 413. 11 Leviticus xviii. ver. 14. — Hume i. 450. — ^As in other cases, construc- tion extends this to the grandchil- dren of the spouse's brother or sister. — See Fraser i. 75. — Inoneoase, con- nection between a husband and his wife's niece was only held relevant to infer an arbitrary punishment See SODOMY. 227 The following cases have also occurred in practice : — Foebidden Widower and daughter of wife's brother in haE- pgQ«EE3. blood (1). Husband and sister of wife's mother (2). Intercourse between a man and two sisters, or a woman intercourse and two brothers, without any marriage, was formerly ters or two held incestuous ; but this would certainly not be held in ™* ^"' the present day (3). In the case of bastards there can be No incest in no incest, unless it be where the mother of a male bastard except with have intercourse with him, she being the only person ™°' ®'^" whose relationship is recognised in law at all. And the question whether the pains of incest apply even to such a case has never been absolutely decided (4). The punishment of incest is death, but it is the in- Punishment. variable practice to restrict the pains of law, and the penalty usually inflicted is penal servitude for life. SODOMY. The crime of unnatural connection between males is Sodomt. punishable not only as regards the assailant, but also as Applies to both regards the other party, if consenting (5). The offence is capital, but it is the practice to restrict the pains of law. punishment. Attempting to commit the act is a relevant charge, and Attempt. is punishable arbitrarily (6). Such an offence is not likely to receive any punishment short of penal ser- vitude. Hume i. 450, case of Beatson there. 4 Hume i. 462. — Alison i. 565. — X Hume i. 460, case of Blair there. More ii. 414. 2 Hume i. 460, case of Gourlay 5 Hume i. 469, and case of Swan there. and Little there. — Alison i. 666. 3 See Hume i. 451, and cases of 6 Will. Simpson and Ralph Sinclair: Imbrie: Knox: M'Gregor: Dods, H.O., Dec. 29th 1845; 2 and Paterson there. Broun 671. 228 BBSTIALITY-^INDECENT PRACTICES. Bestiality. PnNISHMBNT. Attempt. BESTIALITY. Unnatural connection with inferior animals is a capital crime (1), but it is the practice in such cases to restrict the pains of law. Attempts are also punishable arbi- trarily (2). Lewd, inde- cent, AND LIBIDINOUS PRACTICES. Seducing and debauching childreii. INDECENT PKACTICES. The term " Lewd, Indecent, and Libidinous Practices" is applied in law to all those filthy proceedings towards children, which are committed to gratify lewd propen- sities, and which tend to corrupt the morals of the young, though there be no act which in law can strictly be termed an assault (3). Sometimes, and particularly in the case of boys, the word " abominable" is added. As regards females, shameless exposure of person before girls under the age of puberty, or improper handling of them, are instances of this offence (4). "Where the vil- lainy has reached the point of inducing children to com- mit indecencies, the charge generally takes the form of " Seducing and debauching the minds of girls under " the age of puberty (or 'young boys') to lewd, inde- " cent, and libidinous practices, and using lewd, inde- " cent, and libidinous behaviour towards them" (5). 1 Hume i. 469, 470, and cases ol Mitchell : Love : Weir: Pothering- ham : and Kobertson there. — Alison i. 566, 567. 2 Hume i. 470, case of Oliphant there. — Alison i. 567. — John Pot- tinger, H.O., Nov. 23d 1835; 1 Swin. 5 and Bell's Notes 2. — Jas. M'Givem, H.O., May 16th 1845; 2 Broun 444. 3 Hume 1. 309, 310.— Alison, i. 225, 226. 4 The cases of the latter descrip- tion, or of both combined, which have occurred are, unfortunately too numerous, so much so that to quote them would occupy too much space. That the former description of conduct, though seldom occurring alone, is of itself relevant to infer punishment is undoubted. See Mackenzie and others v. Whyte, H.O., Nov. 14th 1864 ; 4 Irv. 570 and 37 So. Jur. 68 (Lord Justice Clerk Inglis' opinion). 6 Malcolm Maclean, July 17th 1838; Bell's Notes 86. INDECENT PRACTICES. 229 In the case of females, charges of this sort where there Lewd, indec- is no element of assault, are not generally applicable to mmvsrai^^- girls above twelve years of age (1). But it would seem "c"^' reasonable to hold that a case might occur in which a J'emaie must T . . ~ be under man taking advantage of a person known to him to be puberty. weak in intellect, though above puberty, would be held whethw pub- as guilty as if his victim were younger (2). And this f"^'? *'^« J^™" would be consistent with the rule by which rape is held son of weak to be committed in the case of a female of weak intellect, "^'^ *°*" although her physical resistance had not been so great as would have been necessary to constitute that crime in the case of a woman of ordinary intellect (3). In the case Putertynotthe of boys, there are obvious reasons why mere puberty limit in the case should not be made the limit of a charge of this sort (4). No consent on the boy's part can alter the estimate to be formed of such wickedness as may be included in a charge of this sort, and where the boy can be held old enough to be a consenting party, the result may only be this, that instead of there being no offence, as in the case of females, the act becomes a crime in both parties. Besides such offences as those above commented on indecent be- where the gravamen consists in the corruption of indivi- "^'"o"^- duals, indecent behaviour is punishable as an offence against public morals. All shamelessly indecent conduct is criminal. " Indecent Exposure " is not in itseK a point Exposure of of dittay (5). Such offences are usually described in some P®™°"' such form as "feloniously and publicly exposing the " private parts of the body in a shameless and indecent 1 Eob. PHlip, H.C., Nov. 2d 1865 ; and 37 Sc. Jur. 417. 2 Irv. 243 and 28 Sc. Jut. 1. i And. Lyall, Perth, April 26th 2 See Eob. Philip, H.C , Nov. 2d 1853 ; 1 Irv. 218, and observation 1855; 2 Irv. 243, (Lord Justice- on this case by Lord Justice-Clerk Clerk Hope's observations and Hope in the case of Eob. Philip, charge). The principal objection in H.C., Nov. 2d 1855 ; 2 Irv. 243. — this case was that the libel gave no See also David Brown, H.C., July notice of any special circumstances. 15th 1844 ; 2 Bronn 261. 3 Hugh M'Namara, H.O., July 5 Mackenzie v. Whyte, H.O., 24th 1848 ; Ark. 521.— Will. Clark, Nov. 14th 1864; 4 Irv. 670 and 37 Perth, AprU 12th 1865 ; 5 Irv. 77 Sc. Jur. 68. 230 INDECENT PRACTICES. Indecent be- " manner " (1). And the question whether the acts done HAviotTR. amount to the offence charged or not, depends on two elements — the impropriety of the act itself, and its effect on the mind of the person to whom the exposure is made. It may fairly be said that this offence is of all others one to be estimated by thp common sense of a jury, but of course the facts set forth by the prosecutor must be sufficient to imply a case the disposal of which may be left to the jury. "Where a complaint set forth only that at a certain place the accused did " wickedly and feloni- " ously expose their persons in an indecent and unbe- " coming manner, and did take off their clothes and ex- " pose themselves ... in a state of nudity, to the an- " noyance of the lieges," without stating what individuals were annoyed, or how the lieges were annoyed, or that the place was a public place, or any other particulars, the Court quashed the conviction following upon it (2). Aggeavation. Besides the aggravation of previous conviction, offences of this sort may be aggravated by the position of the parties, as for example by the offender being the teacher ing pupil. and the victim the scholar (3). And probably any simi- lar situation of trust, such as the case of a servant en- trusted with the charge of children, in the absence of their parents or the like, would be held to constitute an disease"^ ^^^ aggravation. It is also an aggravation of such offences that the accused has communicated venereal disease to Question the child (4). The question has been raised, but not vationthataciB absolutely decided, whether it is an aggravation of an in- enceoTo^er' > r J J ^Q perjury the oath is to matter of opinion or belief only, as in the where oath to case of oaths of calumny, or oaths in law-burrows. (7) But pinion? there may be cases where the corrupt origin of a pre- Unless the tended opinion would make the person af&rming it guilty corrupt origin. of perjury. If a person depone to the justice of a debt on a bill forged by himself, to obtain a meditatione fugcs warrant, or if a professional man allow himself to be bribed to give false evidence when examined on matters of professional opinion, it cannot be doubted that these 1 Hume i. 366, and case of M'Kil- 5 Hume i. 368, and case of Mont- lop there. — ^Alison i. 465, 466. — gomery there. — Alison i. 467. More ii. 408, 409. 6 Hume i. 368.— Alison i. 467, 468. 2 Hume i. 367.— Alison i. 466. 7 Hume i. 368, 369.— Alison i. 3 Hume i. 372.— Alison i. 476. 468.— More ii. 410. 4 Hume i. 368.— Alison i. 467. 236 PERJURY. Eequisites ts PBEJ0KY. The oath must be formal. And formally administered. Written dspo- Eitions only ne- cessary where the form of pro- cedure requires such. Oath before qualified per- son in judicial proceeding. Oaths in eccle- siastical courts and voluntary affidavits not included. facts, if they could be proved, would be sufficient to make a deposition infer perjury, tbough it contained evidence to matters of opinion only (1). Fourth, the perjury must be upon a formal oath, or affirmation recognised by law as equivalent thereto (2). No irregular asseverations, however solemn, will consti- tute the offence. Nor is it perjury unless the oath have been administered according to the proper legal form applicable to the particular proceeding in which the false- hood is committed (3). If the forms of the particular proceeding require the oath to be in writing, it must be taken down and authenticated duly, as required by law ; but in a proceeding in which what is sworn does not re- quire to be written and authenticated, the false swearer may still be tried for perjury (4). Fifth, the oath or affirmation must be emitted before a person duly qualified to receive it, and in a civil or criminal judicial proceeding (5). Oaths emitted before ecclesiastical courts, and voluntary affidavits before ma^ gistrates, are not held to warrant criminal prosecution for perjury (6), although they may form important elements in questions of falsehood and fraud. But, with these ex- ceptions, every oath taken in accordance with and by appointment of law, and having the requirements speci- fied in the previous and following paragraphs, will found 1 Hume i. 375.— Alison i. 468, 469.— More ii. 410. 2 Hume i. 369, 370. 3 Hume i. 371. — Alison i. 474, 476. 4 Felix Monaghan, H.C., Jan. 29th and March 15th 1844 ; 2 Broun 82 and 131. — Margaret Gallooher or Boyle and others, Glasgow, Oct. 6th 1859; 3 Irv. 440 (Indictment).— Bob. Maxwell, H.O., Jan. 31st 1865 ; 5 Irv. 66 and 37 So. Jur. 211. 6 Hume i. 370 Alison i. 470, 471.— Nathan M'Laohlan, H.C., July 17th 1837; 1 Swin. 528 and Bell's Notes 94.— John Barr, H.C., Jan. 23d 1839; 2 Swin. 282 and Bell's Notes 94. 6 Hume L 370, 371.— Alison 1.471. — More ii. 409. — See also John Speirs and others, H.C., March 25th 1836; 1 Swin. 163 and Bell's Notes 95.— Professor More (ii. 409) in- clines to the opinion that where an ecclesiastical court is investigating a purely civil matter, false swearing committed before it may be prose- cuted as perjury. PERJURY. 237 a charge of perjury (1). But the person before whom the Eequisuks oath is taken must be truly present. Where, in the case IN PERJURY. of an oath by a bankrupt in a sequestration, it appeared ^te notTeufg that the Sheriff had not been present during the whole ^""j^XtiiT*"^ of the examination, and had been absent during the reading over of a considerable portion of the deposition, the Court left it to the jury to say whether the oath was taken with sufficient attention to the safeguards required by law, to secure that what was taken down was truly sworn to, and the jury acquitted the prisoner (2). Sixth, The statements said to be false must be mate- Falsehood rial (3) ; that is to say, they must be either statements of teriaL fact pertinent to the matter in question, or statements pertinent to the question of the party's own qualification to make the oath, or credibility in making it. Thus a What matters .. 1 _L • 1 j» • T '!_! • are held perti- witness may be tried lor perjury it, either on examma- nenttothe tion in initialibus or in causa, he swear falsely that he has not been bribed, or that he has not been convicted of a crime (4). And in the same way, if witnesses be brought by an accused party to swear falsely against the character or conduct of witnesses for the prosecution, they will not be heard to say that their evidence was not pertinent to the issue. A person who tries to get judge or jury to discredit the testimony of another witness, by telling falsehoods against him, is deponing as pertinently to the issue, as if he falsely swore the contrary of what the witness had said in causa (5). 1 Hume i. 372, 373, and case of 3 Hume i. 369.— Alison i. 469. Somerville in note 2. — i. 374, and 4 Strange as it may appear, a cases of Roger : Montgomery : and conviction for perjury has taken Eow there ; and cases of Baillie : and place where the perjury consisted in Hay in note a. — Alison i. 471, and the accused's falsely swearing, inter case of Carter there. — i. 472, and a^ia, that he had not been previously casesofPaterson rand Taylor there. convicted of perjury; John Petti- — Will. Hutohson and John Carter, grew, Glasgow, April 1854 (unre- July 20th 1831 ; Bell's Notes 96. ported). 2 Will. Hastie, Glasgow, April 6 Alison i. 469, 470, and case of 23d 1863 ; 4 Irv. 389 and 35 So. Muir there.— i. 477. Sir Archibald Jur. 460. Alison seems to impugn the doc- 238 MINOR OFFENCES, BY MAKING FALSE OATHS. Requisites in PEKJUKT. Seventh, The oath must be an oath of fact or belief, not of promise. Breach of the oath of allegiance, as by rf prom'iL''n*^t Sedition, or breach of trust by an official who has sworn perjury. ^q }yQ faithful in his office, do not fall under the head of perjury (1). Punishment. The punishment of perjury is penal servitude or im- prisonment, to which is added a declaration of infamy, and incapability of holding any public trust or office, or of passing on any inquest or assize (2). MINOR OFFENCES, BY MAKING FALSE OATHS OR AFFIRMATIONS. Although in certain oaths or solemn affirmations re- quired by law in the exercise of rights or the taking of offices, &c., there is no appeal to the Deity, and, there- fore, where falsehood is committed there can be no charge of the high crime of perjury (3), unless under special statutory provision ; still such acts, as being frauds of a very heinous nature, are held punishable by the common law of Scotland. Thus, " Wickedly, wil- " fully, and knowingly swearing, or making, falsely and " fraudulently, an oath or a declaration, by Act of Parlia- " ment ordained to be taken or made on due requisition, " as the condition of exercising the right of voting in the Distinction between per- JURY AND MINOR OF- FENCE. No appeal to Deity. trine laid down by Baron Hume, from misapprehending that author's dictmn, which appears to he quite consistent with what the learned Baronet has himself laid down — David Brown, H.O., March, 13th 1843 ; 1 Broun 525. 1 Hume i. 371, 372.— Alison i. 475, 476.— More ii. 408. 2 Hume i. 374, case of Baillie in note a. — Bob. Maxwell, H.C., Jan. 31st, and Feb. 1st 1865 ; 5 Irv. 65 and 37 Sc. Jut. 211. Formerly the sentence of infamy included a de- claration of inability to give evi- depce; but this is not added, in consequence of the Act 15 Vict M. 27. 3 See the case of Nathan. M'Lach- lan, H.C., July 17tb 1837 ; 1 Swin. 528 and Bell's Notes 94, where such a charge was abandoned. SUBORNATION OF PERJUEY. 239 " election of a member to serve on tlie Commons House Distinotioh " of Parliament," has been held a relevant charge (1). j™/kV''" Such offences are punishable by an arbitrary -pain at minoe of- common law. Punishment. SUBOENATION OF PEEJUEY. If a person instruct a witness how to depone in a Requisites of judicial proceeding for the purpose of defeating the ends i„^„caonfoi. of justice, the crime of subornation of perjury is com- lowed by depo- mitted, if the witness so depone (2). Instructing how to depone does not necessarily imply that what the witness is to say is concocted expressly between him and the suborner, or is even untrue in point of fact. It is suffi- cient if he put into the witness' hands a written state- ment, in accordance with which he induces him to depone, without inquiry as to whether the witness knew the truth of what he was thus asked to swear to (3). And it is of no moment by what means the subornation Mode of sub- is accomplished, whether by enticements, or promises, or consequence, threats, or even by actual violence (4). If a witness resist the attempt to induce him to swear Attempt to a false or concocted story, or if, from any cause, the ®''^°™- false deposition be never emitted, the suborner is still liable to punishment for the attempt, provided it have been overt and serious (5). Indeed, it is no defence to No defence a charge of attempting to suborn, that the attempt was refatedoSy to an intended 1 Jolm Barr, H.O., Jan. 23d 1839 ; them as offences at common law. process. 2 Swin. 282 and Bell's Notes 94. 2 Hume i. 381. There are many British statutes 3 Hume i. 381, and case of Hay which, to provide for the absence of there. — Alison i. 486. — More ii. 410. a common law power of prosecuting 4 Hume i. 381, and cases of Hay : such offences in England or Ireland, andM'Donnell there. — Alison i.486. declare them to be misdemeanours. 5 Hume i. 381, 382, and cases of Bat in Scotland it is much more Hay: M'Donnell: and Soutar and convenient to evade the technioa- Hog there. — Alison 1. 487, 488. — lities of the^ statutes by charging More ii.' 410. 240 DEFORCEMENT. Attempt to StJBOEN. Punishment. made in reference to a process which, though contem- plated, has never been brought into Court (1). Subornation of perjury, and attempt to suborn are both punishable at common law with penal servitude or imprisonment, according to circumstances. In the case of subornation, there may be added to the sentence a declaration of infamy, and incapability of holding any public trust or of&ce, or of passing upon any inquest or assize (2). DEFOECEMENT. Scope OFTEEM DEFOKCEMENT. Defeat of any legal warrant. Irregularity in previous pro- ceedings of no consequence. Deforcement, in the ordinary case, consists in forcibly preventing of&cers of the law or their assistants from carrying out the legal warrant of any judicatory (3), provided it be such as may be lawfully issued there- from (4!), and be free from substantial irregularity (5). And if the warrant itself be regular, irregularity in the previous proceedings from which it has its origin is of no consequence (6). The case of deforcement of revenue 1 Hume i. 383. 2 Hume i. 381.— Eob. Walker, H.O., March 19tli 1838 ; 2 Swin. 69 and Bell's Notes 101. — In this case the sentence included a declaration of inability to give evidence, but this is now superseded by the Aot 16 Vict. c. 27. 3 Hume i. 396 and cases of Forbes : M'Neil : and Sinclair there, and case of Costine in note 3. — Alison i. 505. 4 Alex. Whitelaw and Thos. Bisset; Bell's Notes 102. 6 Ales. Maclean and Malcolm M'GiUivray, Inverness, Sept. 25th 1838 ; 2 Swin. 185 and Bell's Notes 103. — Crawford v. Wilson and Jamesons, Nov. 19th and 24th 1838 ; 2 Swin. 200 (Lord Moncrieff'a opinion) and Bell's Notes 103. 6 Hume i. 200 (in reference to privileges in cases of homicide but the principles are equally ap- plicable to deforcement). — Alison i. 501, 602. — In one case decided on Circuit (Jacob Tait and John Tay- lor, Jedburgh, April 16th 1851 ; J- Shaw 475) it was held fatal that the warrant, though ex foAAa regu- lar, was founded on a conviction, the summons on which the convic- Uon proceeded never having been duly served on the accused. But it is thought that this decision was erroneous and contrary to principle. The officer is entitled to protection where there is no informality in his warrant, and he is not presumed to know anything of the previous pro- ceedings, of which the warrant is the result. DEFORCEMENT. 241 officers is peculiar, as in their ordinaiy duties they are Scope ofterm not required to be in possession of a warrant to entitle °'"'°''°'""^''^" them to act, and it is therefore no defence against a reveuueoffioers charge of deforcing revenue officers, to allege that they °° warrant had no warrant (1). On the other hand, where revenue Unless they are officers proceed to perform such duties as require a spe- duty which re- cial warrant, such as breaking open doors or the like, qiii'es special ■ they are not held to be deforced, unless they were in possession of a warrant (2). It does not appear that, in Question any other case except that of revenue officers, it is held J^roementln deforcement in law to resist and defeat officers in the a°y except execution of their duty, where there is no formal war- where there is rant. Baron Hume and Sir Archibald Alison both lay ""^^■^^"t- it down that deforcement " lies only in the hindering of " those formal and solemn proceedings {actus legitimi) " which take place under regular and written authori- " ties " (3). The exception made in the case of revenue officers seems to rest on the terms of the excise statutes, which import a general and continuous warrant. In no case of arrest of a criminal detected in the act, and with- , out a warrant, has any attempt been made to charge the crime of deforcement, either against the criminal for successfully resisting apprehension, or the friends of the criminal for preventing his arrest. In one case, where water bailiffs attempted to arrest persons illegally taking salmon, and were overcome, it was pled in support of a charge of deforcement, that they had the powers of con- stables conferred upon them by the statute under which they acted ; but the Court found the charge of deforce- ment irrelevant (4). The term deforcement is applicable No deforce- only to civU, as distinguished from military affairs. It tery'escort.^' is not deforcement to rescue a prisoner from a military 1 Peter Hamilton and Jas. Jamie- others, Inverary, April 17th 1856 ; son, Inverary, Sept. 17th 1845 ; 2 2 Irv. 416. Broun 495 See also Alison 1. 496, 3 Hume i. 387.— Alison 1. 493. 499. 4 Hume 1. 396, case of Little and 2 Margaret Stewart or Oook and others in note 2. 242 DEFORCEMENT. Scope oFTERM escort, not acting under the orders of the civil DEFORCEMENT. /w v power (1). Eequisites of To constitute the crime of deforcement several essen- DEFORCEfllENT. . ^ tials must combine. Officer duly First, the officer must be duly vested in his office, vested. ^^^ Competent thereby to execute the warrant or dili- whethOToitizen S^^^^ ^ questiou (2). It is douMful whether a pri- orderedto vate individual, to whom a warrant is _ addressed, is an rant can be officer of the law, to the effect of making it deforcement deforced. ^^ prevent his executing it (3). Officer must Second, the officer must be engaged in a solemn exe^uting'^duty official duty (4), and must be actually executing it at at the time. ^-j^^ ^^^^ j^ jg ^^^ deforcement if, before he has got to the place, or if, after he has done his duty, or given up the attempt to do it, and is returning, he is attacked But it is de- and injured (5). But it is not to be understood that it is be just about not deforcement if the' officer, having got to the place, ^tion and be ^^^ being about to perform his duty, is prevented by prevented. violence, or threats of violence, from taking even the first step. If, on approaching the house of the per- son to whom the warrant applies, or entering a field where the cattle which he is to poind are grazing, he be attacked or threatened with violence, by those who know his errand, it is not the less deforcement that he has been prevented from even beginning to execute his duty (6). Officer must be Third, the officer must be proceeding duly and cor- duiy. '"^ rectly. He must make known that he is an officer, known aThe ^hich, in the case of ordinary constables and messengers, is an officer. 1 Geo. Mill and others, Jedburgh, — i. 505. Sept 16th 1839 ; 2 Swin. 444 and 6 Hume i. 387, 388, and cases of Bell's Notes 103. Wallace : and Hay there. — Alison 2 Hume i. 386.— Alison i. 491, i. 493, 494. 492, and case of Graham and others 6 Hume L 388, 389, and cases of there.— More ii. 402. M'lTeil and others ; Sutherland and 3 Hume i. 387. — Alison i. 491, others: and Campbell there. Ali- 492. son i. 494, 495, and case of Wallace 4 Hume i. 387.— Alison L 493. there. DEFOECEMENT. 243 is done by displaying blazon and baton (1). But this Eeqckites op solemnity is not necessary if it can be proved that he °^'^°'^"'°'*"°^'^' was well known to the parties as an officer of the law, or Unless he was that their conduct on the particular occasion showed that ^^h'^''"^"*^ they knew his quality (2). Again, he must notify his He must notify errand, and, if called on, shew his warrant (3). But this notknowt'La will not hold if it plainly appear that his errand was sheww^j^rantif known (4) ; and the parties wiU be presumed to have known it if they do not ask to be informed of it (5). Nor is the officer bound to part with his warrant (6). And if ^o* bound to the party, without any demand to see it, have submitted rant. ' ^^"^ to its execution, the officer is not bound afterwards to shew it (7). Further, the officer must be acting lawfully. He must not infringe any of the solemnities or restric- Officer mnstnot tions fixed by law. For example, a messenger executing restrictions. letters of caption on Sunday, or after he has seen a sist, or suspension ; or poinding goods at night, or the like, is not in law held to be deforced if he be prevented from carrying out his purpose (8). But if the officer proceed in a strictly legal manner, an infringement of mere local But infringe- •tt I n T T J* • I 1 ft ment of local usage will not found a defence agamst a charge of de- usage no de- forcement (9). It is no defence that payment of the ^f^^ ^j ^^^^^ debt to which the warrant applied was tendered to of payment no the officer, unless he was authorised to receive it. Nor Discharge ap- will any statement of prepayment or compensation avail, geDoeproduoed unless it be vouched by a discharge expressly applied to » good defence, the diligence and produced to the officer (1 0). 1 Hume i. 389. — ^Alison i. 495, don : Campbell : Sutherland : and 496. — More ii. 402. Hamilton and others there.— Alison 2 Hume i. 389, 390, and cases of i. 497, 498, and case of Steel there. Yule: Elphinston: and M'NeU there ; 6 Hume i. 391. — Alison i. 498. and cases of Kinnaird : and Harse v. 7 Hume i. 391. Fork in Note 1. 8 Hume i. 391, 392, and oases of 3 Hume i. 390, 391, and cases of Oraw : Porteous : Graham : Edmi- Edmonstone and others: and Sin- stone : Sands: Stewart : Boss: and clair there.— Alison i. 498. — The others : Tule : and Burnet there ; latter part of this rule does not, of and case of Porgan in note 5. course, apply in the case of revenue 9 John Davidson and others, In- offioers. vemess, April 28th 1821 ; Shaw 41. 4 Hume i. 390.— Alison i. 497, 10 Hume i. 393, and cases of 498. Simpson : and Duguid there. — AK- 5 Hume i. 390, and oases of Gor- son i. 500. 244 Eequisites of dbforcement. Violence must he expressly to defeat the officer in his duty. Eesistance necessary to constitute OFFENCE. Actual violence not necessary, murderous threats enough. Stone-throw- ing. Even threats of injury not ne- cessary. Confining offi- cer in room, or surrounding person to be ar- rested, or res- cuing after arrest Passive resis- tance enough. DEFORCEMENT. Fourth, the resistance or violence must have relation to the duty the officer is discharging, and be expressly for the purpose of preventing its execution. It is not deforcement, for example, if the officer be prevented ful- filling his duty by violence resulting from a quarrel with a bystander arising on the spot, or from any attack, the intention of which, however malicious, is merely to injure the officer, and has not for its direct object the defeat of his attempt to do his duty (1). Tt remains only to notice the question. What is the amount and description of force which constitutes the crime ? And, in the first place, it is not necessary that the officer have suffered actual violence. If, on approach- ing to execute his office, he be fired at or seriously threatened with fire-arms or other mortal weapons, or if he be attacked with stones, and cannot advance without serious danger, he is deforced, although none of the shots or missiles have struck him (2). Nor need there be any demonstration of injury to his person at all. It is de- forcement if he be inveigled or jostled into a room and locked up, or if the friends of the person to be arrested surround him, and keep the officer from him in spite of all his efforts to reach him, or if, after he has been arrested, they rescue him (3). In short, if by physical exertions, — even those of passive resistance on the part of the person to be arrested, — the officer is truly prevented from doing his duty, he is held to be deforced (4). It is scarcely necessary to say that if the officer succeed in executing his duty, in spite of the resistance or vio- lence opposed to him, he is not held to be deforced. 1 Hume i. 394, and cases of Innes: and Simpson there. — ^Alison i. 502, 603.— More ii. 403. 2 Hume i. 394, 395, and cases of M'Neil : Sutherland : Forbes : and Campbell there. — Alison i. 503, 604, and cases of Stewart: and K'Pher- son and others there — More ii.402. 3 Hume i. 395, and cases of Hamilton and others : Dugutd : and Harries there. — Alison i. 504. 4 Jas. Hunter and Thos. Pea- cook, H.O., Jan. 16th 1860 ; 3 Irv. 518 (LordJuslioe-ClerklngUs' charge). DEFOECBMENT. 245 however much injury he may suifer. Deforcement Kesistance consists in successful opposition. But, on the other to cqnstitute hand, if the resistance have once been successful, subse- "^''""ce. quent submission on the part of the delinquent does not ff"eroflenoe free him from the guilt of his offence (1). ^°^^ "ot «^- In modern times the usual punishment of deforcement punishment. is imprisonment. The punishment of deforcement alone is not likely to be extended beyond this, as where the oifence is accompanied by aggravating circumstances, these generally find expression in additional charges, such as assault, or mobbing and rioting. Under certain^ old statutes escheat of movables is a competent punish- ment for deforcement, but this is not inflicted in modern practice (2). OBSTEUCTING OFFICERS OF LAW. Acts of obstruction to officers of the law are generally generally accompanied by circumstances which bring them within ^it'^qthek' a different category such as assault, or mobbing and offences. rioting, or the like. But such a charge is competent by itself at common law (3). Such offences are punishable arbitrarily, but would Pdnishment. probably not be visited with a higher punishment than imprisonment, unless occurring in combination with other breaches of the law. OBSTEUCTING A LEGAL COUET. Besides the summary manner of punishing attempts to a relevant obstruct the proceedings of courts of law, as acts of con- POINT OF DIT- TAT 1 Hume i. 395, S96.— Alison L 1592, o. 152. 604. 3 See Jas. Hunter and Thos. 2 See Hume i. 397, 398, referring Peacock, H.C., Jan. 16th 1860 ; to 1581, «. 118.— 1587, c. 85, and Irv. 618 (Indictment.) 246 PRISON-BREAKING. A KELEVANT POINT OF DIT- TAY. tempt, it is competent to try them formally. Where there is great tumult, the term mobbiag and rioting * is applicable, the obstruction of the Court being averred as the purpose of the mob. And acts of molestation specially directed against a Judge sitting in Court are noticed elsewhere.'^ Wherever the conduct of the accused has been such as to put it out of the power of the Court to deal summarily with the contempt com- mitted, or to constitute so serious an offence as to make it advisable to have a severe punishment inflicted, the offence may, and should be, tried as a separate charge. EuIb applies to And the law extends its protection in the same manner c arc con ^^ thosc public courts, which, from their constitution, cannot summarily punish persons who obstruct their pro- ceedings. Thus, " obstructing a presbytery in the dis- charge of their duty," is an indictable offence (1). The punishment of such offences is arbitrary, and would probably never be extended beyond imprison- ment. recognised by law. Punishment. PEISON-BEEAKING. Peison- breakino. Must be from legal confine- ment on war- rant Person oou- flned for security by constable. A prisoner legally confined in a public jail, no matter for what cause, civU or criminal, commits prison-break- ing if he escape (2). But the confinement must be lawful and on warrant. Escape by a prisoner placed in jaU for security by a constable is not prison-breaking (3). And the same holds, if a prisoner be confined on a warrant 1 John G. Bobertoon and others, H.O., Mar. 24th and 26th 1842 ; 1 Broun 162 and Bell's Notes 103. — Andrew Holm and Alex. Fraser, H.C., Jan. 11th 1844 ; 2 Broun 18. * Vide 206. 2 Hume i. 401.— Alison i. 555. — More ii. 401. 3 Hume i. 403, and case of Inglis there — Alison i. 556. — ^More ii. 401 t Fide 103, 202. PRISON-BEE AKTNG. 247 BREAKING. not applicable to him, or palpably informal (1). But if Prison the warrant be formal, defects in or objections to the „ ^. proceedings oi which it is the result, are ot no conse- where warrant /ci\ informal. quence (2). The place in which the person is confined must be a jaii must be proper public jail. Escape from a police lock-up, or j'^uf^'^^^ ° temporary place of detention is not prison-breaking (3). But the whole precincts are included in the word But whole T ■ ■ t 1 ■ 11 11 p precincts of prison. It IS prison-breaking to scale the wall of an jail included, exercise yard in a jail (4). The nature of the offence is not affected by the mode Mode of of the escape. It matters not whether it be done by consequence. violence (5), or by setting fire to the doors (6), or by Violence, bum- using false keys, or corrupting the jailor, or taking ad- Sibery^^takmg vantage of his negligence (7), or even by the prisoner ne^Hg^ce°or availing himself of the doors of the prison being broken opening by down by a mob from without (8). It is not prison- ^jt^, " t breaking to force a passage from one part of a prison to punishable, another. But " attempting to break prison " is a relevant charge (9). Cases of prison-breaking are of rare occurrence, and Aograva- . PI I. • • TIONS. there are few instances of charges of aggravating cir- cumstances. Where there is violence done to the jailor, this might probably be stated as an aggravation, but no case has occurred in which this has been done (10). In one case, a charge of prison-breaking, especially when 1 Hume i. 402.— Alison i. 556. 1837 ; 1 Swin. 497 and Bell's Notes 2 Hume i. 403.— Alison i. 556. 104. 3 Hume i. 404. — Alison i. 557. 8 Hume i. 402, and case of Eat- 4 Andrew Otto, Dumfries, Sept. cliff or Walker there. 1838 ; Bell's Notes 104. 9 Bob. Gallie, iun.,April 2d, 1832; 5 6 Hume i. 401, 402. — Alison i. Deas and Anderson 242 and 4 ScJur. 555— More ii. 401. 409.— Bob. Smith, Perth, Sept. 17th 6 Jean Gordon or Bryan and 1863;41rv. 434and36Sc. Jur.3. others, Aberdeen, April 22d 1841; 10 In the case of Smith in the 2 Swin. 545. previous note, the assault was made 7 Will. Hutton, Ayr, April 13th a separate charge. 248 BREAKING INTO PRISON TO RESCUE PRISONERS. Peison- breaking. committed by means of wilful fire-raising, was held re- • levant (1). Punishment. The punishment of prison-breaking, or attempt to break prison, is either imprisonment or penal servitude, according to circumstances. BEBAKINa INTO PRISON TO EESCUE PEISONEES. Eake OFFENCE. Attempt. Pdnishment. This is a crime of rare occurrence, very few cases having occurred in practice (2). The offence is of course most heinous when prisoners are actually libe- rated. But it cannot be doubted that the attempt is criminal. And on the same principle that "breaking "part of a house with intent to enter and steal" is cri- minal,* though the thief have been scared before he had time to enter the building, so it must be held that if the security of a prison be overcome by part of it being broken down, with intent to rescue prisoners, the per- son who has effected this, is guilty of an offence, although he may not have actually entered the prison. This offence, being in principle precisely analogous to prison-breaking, would probably be held punishable in the same manner. BEING AT LAEGE BEFOEE EXPIEATION OF SENTENCE. Any person who has been sentenced to penal servi- 1 Nell M'Queen, Inverness, April and others there. — John Urqnhart 1840 i Bell's Notes 181. and others, H.O., Jan. l"Oth 1844 ; 2 Hume L 404, case of Weir 2 Bronn 13, • Vide 85. BEING AT LARGE BEFORE EXPIRATION OF SENTENCE. 249 tude, and is found at large without lawful cause, in any Convict part of Her Majesty's dominions, before the expiry of ^rqe with- the term to which he was sentenced, is liable to penal "^^g^'*'^^"^ servitude for life, and to imprisonment with or without i^ Queen's do- hard labour, for any term not exceeding four years, minions. prior to being sent back to penal servitude (1). 1 Act 5 Geo IV. c. 84 § 22, as John NeilHa or Neillus, H.C., May amended by 4 and 5 WiU. IV. c. 20th 1C61 ; 4 Irv. 60 and 33 So. 67, and 20 and 21 Viot c. 8 § 3 Jvir. 456. 250 TREASON. Treason. At the Union the treason law of Scotland was assimi- Law the same lated to that of England (1). By the statute which as in England. ^^^^^ ^j^g ^^^^^ ^f ^^^ English treason law (2), so far as unrepealed or applicable to Scotland, the following acts are treason : — Compaseing I. To compass Or imagine the death of the king, or of his queen, or their eldest son and heir. Violation of II. To violatc the king's companion or eldest daughter spouses. unmarried, or the wife of the king's heir. Levying war. III. To levy War against the king. Adherence to TV. To be adherent to the king's enemies within the realm, giving to them aid or comfort within the realm or elsewhere. Counterfeiting Y_ Xo Counterfeit the king's great or privy seal. King means The word "king," in treason law, means the sove- reigning sove- reign actually reigning, whether ceremonially crowned or not, and does not apply to one who, though the right- ful heir, has never in fact been king (3). The case of a question where king deposed by an usurper is more difficult. Baron by^usu^per.^ Hume Seems to think that, in such a case, aU acts of outward warfare, and the like, against the true king, should be held as done under compulsion of the usurper, and therefore to be no treason ; but that private acts. 1 Act 7 Anne c. 21. 3 Hume 520.— Alison i. 605, 606. 2 Act 25 Edward III. ^tat. 5 o. 2. — ii. 394. TEEASON. 251 such as lying in wait to kill the true king, should be Treason. construed as treason (I). The words " his queen" apply Meaning of only to the wife of the reigning sovereign during the ^^^ i^^en. subsistence of the marriage (2). The consort of a reign- Consort of ing queen is not included in the Act (3). The words, not included.^" " eldest son and heir," refer only to the eldest son of the Meaning of . , , term son and sovereign, not to the presumptive heir to the throne, nor heir, to the eldest daughter where there is no son (4). I. Compassing or imagining the death of the Sove- Compassihg reign, or of his consort or heir, is committed when any overt acts are done which plainly threaten such a re- Overt acts suit. Thus, to lie in wait to kill, or to instigate or *^oh aSt bribe to do so, or provide arms or other means for the purpose, or to consult with others to that end, although no resolution be come to, all constitute a com- passing or imagining in the sense of the statute (5). The law as to this is extended, as regards the person of Extension of the Sovereign, by a later Act (6), which makes it trea- regards the son " to compass, imagine, invent, devise, or intend ^overeien*''* " death or destruction, or any bodily harm tending to " death or destruction, maim or wounding, imprison- " ment or restraint, of the person of the Sovereign." To write statements of a speculative character in refer- Speculative ence to the right to kiU or dethrone the Sovereign or the he"d ovlr^alts, like, are not overt acts, unless the writings are shown to be "P^^ss part of ° plot or pub- part of a treasonable proceeding already on foot, or unless iished to they are shown or divulged to some other person by the writer (7). But to write in relation to machinations or Where plot . n ■ , . , , _. exists such conspiracies actually existing, may amount to an overt writings may act of compassing, though the writing has not been aot*Uiou^h published, and still more, of course, if the accused has unpublished. 1 Hume i. 520. 6 Act 36 Geo. ili. o. 7, made per- 2 Hume i. 521. — Alison i. 605. petual by 67 Geo. iii. c. 6, and nn- 3 Hume i. 519, 520. — ^Alison i. repealed to the extent quoted in the 605.— More ii. 394. text by 11 Vict. c. 12. 4 Hume i. 521. — Alison i. 605. 7 Hume i. 517, and case of Cal- 5 Hume 1. 614.— Alison i. 597, der in note 1.— Alison i. 602, 603. 698. 252 TREASON. Compassing DEATH. Publishing work tending to bring king, &o., into dan- ger is a com- passing. Spoken words not a compass- ing, unless there be a ' direct plot Compassings against the king's wife or heir, must be against their lives. Acts pointing to injury or restraint of Sovereign may- be a compass- ing. Conspiring to levy war or concerting with foreign power. Such construc- tive compass- ing may be tried as a lower offence than treason. done all in his power to publish it, as by despatching a letter, though it should never reach the person to whom it was addressed (1). And it is also a compassing to publish to the world generally, a work tending to bring the Sovereign or his queen or heir into danger, as, for example, by calling the king a tyrant, and maintaining that the man who put him to death would deserve well of his country, or by declaring that the queen or the heir were evil counsellors to the Sovereign, and that the only way to save the country would be to have them, or either of them, despatched out of the way (2). Spoken words, though they may be evidence to explain other acts, are not by themselves held to amount to a compassing, unless they take the form of deliberate con- spiracy or instigation (3). Compassing, in the case of the king's wife or heir, must be expressly directed against their lives, and not towards mere imprisonment or restraint (4). But as re- gards the Sovereign, acts which do not in themselves imply an intention of injury to, or restraint of, his per- son, may still be sufficient to prove such compassing, imagination, invention, or device, as to constitute trea- son. Thus, such acts as conspiring to levy war, if the intention be against the Sovereign personally, to de- throne or constraiu him, or soliciting or concerting with a foreign power to invade the kingdom, have been held to be acts of compassing the king's death (5). But though this is still the law, and would be applied were a case to arise which might call for punishment by the high pains of treason, modern legislation has wisely provided machinery for punishing as ordinary felons. 1 Hume i. 517, 518, and cases of Lord Preston and Ashton: Fran- chia; and Layer there. — Alison i. 605. 2 Hume i. 518, and oaso of Twyn in note 4.— Alison i. 603, 604. 3 Hume i. 519.— Alison i. 604.J 4 Hume i. 620, 521.— Alison i. 605. 5 Hume i. 615, 516, and cases of Layer: Watt and Downie: and Lord Preston there. — Alison i. 698, 699. TREASON. 253 — without giving them the dignity which attaches to a Compassing trial for treason, — those who commit such acts as '. amount only constructively to a compassing of the life of the Sovereign.* II. Violating the king's companion, or eldest daugh- Violation op ter unmarried, or the wife of his heir is treason, whether spouses. the act be done hy force or with consent on the woman's part. The rule applies to the wives of the Applies only Sovereign and his heir only during the subsistence of husblid.*^ °* the marriage. The eldest daughter is included in the Eldest dangh- sanction, although there be sons before her in the sue- though there cession (1). ^""^ ^°°^- III. Levying war against the Sovereign within the Levying war. realm is treason. But the war must be actually levied. Conspiracy to Mere conspiracy to levy war, if not aimed at the de- nJ7enImgh. struction or constraint of the Sovereign, does not amount to treason (2), although it is highly punishable.")* To attack the royal troops, not from personal enmity to Attacking some particular corps, but in their capacity as the ser- ^o/^li^^-^' vants of the State, or to hold out any castle or fort, or fort. to fortify any place for the purpose of holding it out against the royal troops, are acts of levying war. But the term further includes every violent rising, however Any rising for small, however ill-organised, by people however ill- jeft^sufficienl armed, and after however unwarlike a fashion, provided it have a general and not a merely local or private pur- pose (3). Baron Hume thinks a distinction is to be Question drawn between the case of a body armed and organised piayed^^^^t" in a truly warlike manner, and a body armed in such a in tteir nature way as does not indicate a direct intention of making war. In the former case, he thinks the assembling and marching should be sufficient to convict of levying war, 1 Hume i. 521. — Alison i. 606. — 3 Hume i. 623, and case of Dama- More ii. 394. ree and Purchase there, and case of 2 Hume i. 526, 527. — Alison 1. Wilson and others in note a. — 612. Alison i. 606 to 609.— More ii. 394. "i Vide 257. t >'«'''«'" of enoes ^ ' . , . , . committed on with offences committed m any other territory than ground beyond Scotland (3), unless authority to try the offence in the Soeptunder courts of the place of apprehension he specially conferred statute. by 'statute (4). As regards offences committed at sea, Crimes at sea. the only crime which the courts of Scotland have power to try, irrespective of the nationality of the alleged offender, or the flag of the ship in which the offence is committed, is the crime of piracy. In this particular case Jurisdiction to the Supreme Court has jurisdiction though the offence ^ereveTanJ was committed by foreigners and in foreign ships (5). committed'^^^'' As regards all other offences committed in ships, it de- Jurisdiction as - ., ... „ ,, , . 1 ,1 ,. to every offence pends upon the position oi the ship at the time, or upon committed in its nationality, whether there is jurisdiction. There is ^[h°n thre°e'^ undoubted jurisdiction if the ship be sailing within three ^'^^^ "f <=oast. miles of the Scottish coast (6), or be within a Scottish 1 Hume ii. 55, case of Taws in sentence). See Jas. Martin, H.O., note a. —Alison ii. 78, 79, and case Nov. 16th 1835 ; 1 Swin. 1 and Bell's of Lees, note 2. Notes 105. — 1 Geo. iv. o. 34 § 3, 2 Hume ii. 50 and cases of Kirk- (desertion of service). See Clark v. patrick and others : andMacdouald M'Naught, H.O., March 9th 1846; there.— Alison ii. 70, 71. Ark. 33. -11 Geo. iv. o. 54, (Tweed 3 Hume ii. 50, 51 and case of Fisheries Act). — 7 Will. iv. and 1 Bruce there.— Baron Hume (ii. 52), Vict. c. 36 § 87, (Post-Offlce Act.) seems to think that Scotchmen, 6 Hume i. 480. though resident abroad, might be 6 It was laid down in the House amenable to the Jurisdiction of the of Lords as undoubted law that the Scottish Courts if they remain in a rights and jurisdiction of a nation special relation to their country, as extend to a distance of three miles by being attached to an embassy, or from the shore in the case of Gam- being employed in a Scotch factory. mell v. Commissioners of Woods and But with deference to so high an Forests, March 3d, 4th, 7th, 8th, authority, itmay be doubted whether 10th, and 28th 1859; 3 Macqueen it would be possible in practice to 419 (Lord Wensleydale's judgment), apply any such distinction satis- — See also Will. M'Alister and faotorily , assuming it to be sound in others, H.C., Nov. 20th 1837 ; 1 principle. — Alison ii. 71, 72. Swin. 687 and Bell's Notes 147. — 4 The following may be refen'ed Jas. Dalziel, Dumfries, Sept. 29th to as examples ; 5 Geo. iv. c. 84 § 22, 1842 ; 1 Broun 425 and Bell's Notes (being at large before expiry of 146. 276 JURISDICTION. Extent op Scottish jurisdiction. Jurisdiction where offence committed on high seas only over British ships. Jurisdiction over IBritish subject in British ship in ■waters of a foreign coun- try. Statutory juiisdiction. Jurisdiction ofpabticulae 00UBT3. Coubt of justiciaey. port or harbour or navigable river, or any anchoring ground, whatever be the nationality to which the ship belongs, and though the accused be a foreigner (1). But in the case of offences committed on the high seas, or in foreign ports or harbours, the courts of Scotland have jurisdiction only if the vessel in which they were com- mitted was a British ship ; and where the offence is committed in a foreign port or harbour, it is further necessary that the offender be a British subject. This matter is regulated by the Merchant Shipping Act, by which it is enacted that — " If any person, being a British " subject, charged with having committed any crime or " offence on board any British ship on the high seas or " in any foreign port or harbour, or if any person, not " being a British subject, charged with having committed " any crime or offence on board any British ship on the " high seas, is found within the jurisdiction of any court " of justice in her Majesty's dominions which would have " had cognisance of such crime or offence if committed " within the limits of its ordinary jurisdiction, such court " shall have jurisdiction to hear and try the case as if " such crime or offence had been committed within such " limits " (2). The Coining Statute also gives jurisdic- tion to the Scottish Co arts to try all coining offences committed at sea, in ships registered at Scottish ports, or ships touching at any Scottish port (3). In speaking of the jurisdiction of particular courts, it is proposed at present to allude only to courts of radical jurisdiction, leaving the subject of Courts of Eeview to be noticed in a subsequent part of the work. The Supreme Criminal Court of Scotland is the Court 1 Lewis T. Blair, H.C., Feb. 25th 1858 ; 3 Irv. 16 and 30 So. Jur. 608. 2 Act 18 & 19 Vict, c 91 § 21. This enactment precludes any such question being raised as was at- tempted in Jas. Salziel, Dumfries, April 8th 1842 ; 1 Broun 217. It also abrogates the rule of law that offences committed on the high seas can only be taken cognisance of iu the High Court of Justiciafy See Will. M'Alister and others, H.O., Nov. 20th 1837; 1 Swin. 587. 3 Act 24 & 25 Vict. c. 99, j 36. JUEISDICTION. 277 of Justiciary (1). It consists of seven members (2) who Oodkt of are styled Lords Commissioners of Justiciary, and of '^^'"'^^ ^^' whom the Lord Justice General is the presiding Judge. The Lord Justice Clerk is the next in seniority, and the remaining judges take precedence of one another accord- ing to the dates of their commissions (3). The Court of Justiciary has jurisdiction in all criminal Extent of juris- cases where the crime is committed in Scotland or at tioiary court, sea (4). If a statute be passed creating a new offence, inherentpower but fixing no court for the trial of it, the Court of Justi- ^J^y "^"^ ° . offences. ciary in virtue of its inherent power to take cognisance of crime, has jurisdiction to try cases falling under it (5). The jurisdiction of the Court of Justiciary is excluded only in those cases which, by statute, are appointed to be tried in a particular court. But although a statute Jurisdiction . 1 . T 1 T 1 /-( !• ^°^ excluded gives jurisdiction to another court than the Court of by jurisdiction Justiciary, this does not per se exclude the jurisdiction onTfferior"^ of the latter. The terms of the enactment must be such co^ris. as to deprive the Supreme Court of that inherent power of taking cognisance of aU crimes whether at common law, or under statute, which is the peculiar characteristic , of its jurisdiction (6). But on the other hand, it is Butjunsdiction not absolutely necessary that the jurisdiction should be Xded^bT" taken away in express words ; it may be implied from implication. 1 Act 1672 c. 16. " iehment of crimes bears to be the 2 Act 1672 o. 16. " object of the Act, and therefore is 3 This is the practice now. The " the measure of the Jurisdiction pf rule formerly seems to have been " the Court It extends to aU cri- that in the absence of the heads of " minal causes." the Court, the bench should choose 6 Hume ii. 40 and cases of Caith- a president themselves. — Humeii. ness and Bisset: and Brown and 18. M'Nab there.— Alison ii. 9, 10, 11. 4 Hume it 31. — Alison ii. 1. — 6 Hume ii. 37, 38, 39 and cases of In the Lord Justice Clerk Hope's Anderson and others : Hog and MS. notes to Hume the following Bryson : and Vert and others there, occurs — " In considering the ques- — Alison ii. 8 to 10. — Jas. Affleck *' tion as to the extent of the Juris- and Jas. Hodgers, Jedburgh, April " diction of the Justiciary, the gen- 6th 1842 ; 1 Broun 207 and Bell's "eral character of the Act 1672 o. Notes 147. — Bob. Millar, March 15th " 16 must be considered. The pun- 1843 ; BeU's Notes 147. 278 JURISDICTION. COUKT OF JUSTICIABY. Court of Justiciary has jurisdiction to try and punisli every plainly crimi- nal act, although wholly novel and not pro- vided tor by statute. the conetruction of the language of the Act. For example, where a statute enacted that offenders convicted of the statutory offence for the fii;st or second time " before two " Justices of the Peace," should be dealt with in a par- ticular manner, and that persons charged with a third offence should be tried in the Supreme Court, it was held that the jurisdiction of the Supreme Court was excluded as regarded first ami second offences (1 ). The jurisdiction of the Court of Justiciary is not limited to crimes which are already established by the common law of the country and to special statutory crimes. It has also an inherent jurisdiction to punish all acts which are plainly of a criminal nature, although they may have been previously unknown, and are not within the scope of any statute, or, as Baron Hume expresses it, "Our Supreme Court have an inherent " power as such to punish every act which is obviously " of a criminal nature ; though it be such as in time past " has never been the subject of prosecution," (2). ' 1 Eob. Eowet, Ayr, April 27th 1843) 1 Broun 540. — Matthew Kobinaon or Eobertson, Dumfries, April 27th 1844; 2 Broun 176.— DavidBell,April25thl850; J.Shaw 348 Geo. Duncan, H.C.,Feb. 29th 1864 ; 4 Irv. 474 and 3Q So. Jur. 404. 2 Hume i. 12. — Bernard Green- huff and others, H.C., Deo. 19th 1838 ; 2 Swin. 236 and Bell's Notes 172, 174 — See also Jas. Taylor and others, H.C., March 21st 1808; Burnett Appendix No. 10, and Hutchison vol. 4, Appendix iii., No. 16. — Hume i. 495, cases of Chalmers and others: and Mac- Mmmie and others there. — i. 496, cases of Perrier ; Wilson and Eoss there, and Wilson and Banks in note 1. — There are also later cases which illustrate this doctrine, e.g., Will. Fraser,H.C., June 21st and July 12th 1847 ; Ark. 280 and 329, and Chas. Bweenie, June 18th 1858; 3 Irv. 109 and 31 Sc. Jur. 24, in both of which cases charges of crimes which had never before occurred in practice were sustained at common law. A fur- ther illustration of this rule of law is to be found in the case of Bichard F. Dick and Alex. Lawrie, H.O., July 16th 1832 ; 4 So. Jur. 594, and 5 Deas and Anderson 513, where it was argued that as by Act of Parliament (7 and 8 Geo. IV. 0. 20) power was given to the Court of Justiciary to try the offence of fraudulent bankruptcy, it- was not an offence which they could try at common law, and where the Court held "that the crime was "originally cognisable at common " law, and if fraudulent bankruptcy "were a crime, it was absurd to " contend that the Justiciary Court " had no cognisance of it, though the " libel was not laid on the statute.'' (See the Jurist Report). JURISDICTION. 279 The Court of Justiciary is the only competent Court Oo^bt of ■' , •' ^ . . JDSTICIARY. in cases of treason, murder, robbery, rape, nre-raismg, ^^^^.^.^^ deforcement of messengers, breach of duty by magis- Court has trates, and in all cases in which by statute a higher ^uonlii^"™' punishment than imprisonment is directed to be in- certain oases. flicted (1). The Court of Justiciary for executive purposes holds Exeoutiye Courts in Edinburgh, and in the following towns : — conrt into Glasgow, Stirling, and Inverary for the Western Circuit; ^'f qSouH Perth, Dundee, Aberdeen, and Inverness for the Northern Courts. Circuit ; and Ayr, Dumfries, and Jedburgh for the Southern Circuit. The Court when sitting in Edinburgh High Court, is styled The High Court of Justiciary. Three judges constitute a quorum (2), and this number sit to try cases Quorum. as often as convenience requires. The jurisdiction of the High Court is universal in Scotland, so that cases which High Court have occurred within the jurisdiction of any of the tion'tSough- Circuit Courts, may still be competently tried before the °'^' Scotland. High Court in Edinburgh. The High Court has also High Court an exclusive jurisdiction in the three Lothians and in diotioaln^'^™'' Orkney and Shetland, as regards aU cases which must orkneTand'^ be tried in the Court of Justiciary, these places not Shetland. being within the limits of any of the Circuit Courts. Further, where points of difficulty arise as to the relev- High Court ancy of indictments, or as to the effect of verdicts, or the questions of proper sentences to be pronounced, either on Circuit, or fie^^o*^ ''^^' in cases brought before a quorum of iudges in Edin- Circuits, and 1 1 ■ ■ i(.,i-T . '' . .„ ■, of questions burgh, it IS usual tor the judges on circuit to certify the remitted by a case to the High Court, or for the quorum to adjourn the oprniiu o{\he* cause for the opinion of whole Court, in which case the '^''°^® C)<""^'- whole seven judges, or as many as can attend, meet and dispose of the matter. The Circuit Courts are held twice in each year, in 1 Hume ii. 58, 69.— Alison ii. 20. 2 Act 23 Geo. iii. o. 45, § 7. — ii. 22, 23. 280 JURISDICTION. Court of justiciaky. Circuit Courts held twice a year, and thi-ee times in Glasgow. Hode of fixing dates of Circuits. Other judges than those specially ap- pointed for a Circuit may do the duty. Two judges appointed for each Circuit, but one may sit alone. Judges em- powered to sit in separate Courts in Glasgow. Queen in Council may add to, or dis- continue or alter Circuits. spring between 20th March and J 2th May (1), and in autumn in September and October, and in the case of Glasgow, there is a third Court in the end of Decem- ber or beginning of January (2). The day of the meet- ing of each Circuit Court is determined by an Act of Ad- journal passed for the Spring Circuit between the 1st and 20th of March, and for the Autumn Circuit between the 1st and the 20th of August (3), and for the Winter Circuit before the 20th of November (4). The Act of Adjournal also determines which judges are to dis- charge the duties of the Circuits respectively, but this does not make it incompetent, if necessity arises, for the judges to act on other Circuits than those for which they are specially appointed (5). Two judges usually go on each Circuit, but a single judge may competently con- duct the business (6). In Glasgow, by special statute, the two judges are authorised to sit in separate courts simultaneously, for the more rapid dispatch of busi- ness (7). Further, the reigning sovereign may, by an order in council, direct additional courts to be held in any of the Circuit towns, or dispense with Circuit courts which have been directed to be held by an order in council (8). And new Circuits may be formed, and the limits of Circuits altered, in the same manner (9). The following are the counties which, according to the 1 Act 30 Geo. III. c. 17, § 3.— As the Court of Session now sits till the 20th of March, the period for the Spring Circuit must be held to commence from that date, and it is further enacted by 11 Geo. IV. and 1 WiU. IV. 0. 37, § 3, that where a Circuit has been held by special appointment at any place in De- cember or January, the following Spring Circuit shall not be held before the 20th of April. 2 Act 9 Geo. IV. c. 29, § 1. 3 Act 23 Geo. III. c. 45, § 1. 4 Act 9 Geo. IV. o. 29, § 1. 6 Act 9 Geo. IV. c. 29, § 2. 6 Act 20 Geo. II. c. 43, § 32.— See also 11 Geo. IV. and 1 Will. IV. 0.^69, § 19, by which the Lord Justice General is empowered to preside on Circuit, either with or without another judge. 7 Act 11 and 12 Vict. o. 79, § 8. 8 Act 9 Geo. IV. o. 29, § 3, 9 Act 27 Vict. 0. 30, § 1. JURISDICTION. 281 present arrangement, fall within the iurisdiction of the Court of Circuit Courts respectively : — JUSTICIARY. Subdivision of Circuits. Glasgow : — Lanarkshire, Dumhartonshire, Eenfrew- -west, shire. Stielinb: — Stirlingshire, Clackmannanshire, Kinross- shire. Inveraey : — ^Argyllshire, Buteshire. Peeth : — Perthshire, Fifeshire. North. Dundee : — Forfarshire. Abeedeen : — Aberdeenshire, Banffshire, Kincardine- shire. Inveeness : — Inverness-shire, Eoss and Cromarty shires, Elginshire, Nairnshire, Sutherlandshire, Caithness-shire. Aye :— Ayrshire. South. DuMEEiES : — ^Dumfriesshire, Stewartry of Kirkcud- hright, Wigtonshire. Jedbuegh : — Eoxburghshire, Berwickshire, Selkirk- shire, Peebleshire. The iurisdiction of each circuit is limited to offences ^ ■ a- .■ •> . Junsdiclion committed within the counties included in the circuit, limited to mi . t j_- j_ j_T • 1 j_. . offences com- Ihe only exceptions to this rule are continuous crimes, mitted within such as theft, where the crime is held to be renewed in *^® circvdt "* every jurisdiction in which the dehnquent has the stolen except in con- , . 1 . . 1 . . n , tinuous crimes property in his possession ; and crimes m reference to and cases of which power is specially given to try offenders at the tory'iuri^o^ place of apprehension, as, for example, crimes committed tion. at sea (1), or the crime of heing unlawfully at large before expiry of a sentence of penal servitude (2). In one case of abduction of a voter, the objection was taken to the jurisdiction of the Circuit Court at Dumfries, 1 Acts 18 and 19 Viot. o. 91, § 21. hension or in the place from which 2 Act 6 Geo. IV. o. 84, § 22. — he was ordered to be banished. — Under this statute the offender may See Jas. Martin, H.O., Nov. 16th be tried either in the place of appre- 1835 ; 1 Swin. 1 and Bell's Notes 105. 282 JUEISDICTION. Court op jushoiaet. Jurisdiction where person abducted from limits of one Circuit to another. JUKISDICTION OF SHERIFFS. Limited to their own counties ex- cept in contin- uous crimes, and cases of special statu- tory jurisdic- tion. Jurisdiction over harbours, 'navigable rivers, Sm. Nature of of- fences falling within SheriS'i jurisdiction. that though the abduction was alleged to have originated within the jurisdiction of that Court, the person was said to have been carried into the county of Ayr and kept there, and that as Ayr was not within the jurisdiction, the charge was therefore irrelevant. The objection was repelled, the Court holding that whether it would have been competent to try the offence in the Circuit Court of Ayr or not, it was clearly competent to proceed in the Court having jurisdiction over the place from whence the abduction took place, and this more particularly in elec- tion abductions, as they had always, and necessarily, a special relation to the place from which the voter was removed and detained (1). The jurisdiction of Sheriffs and their substitutes is limited to offences committed in their respective coun- ties, except as regards continuous crimes, and crimes in reference to which the Sheriff of the place of appre- hension has jurisdiction by statutory enactment (2). By statute, the jurisdiction includes "the navigable " rivers, ports, harbours, creeks, shores, and anchoring " grounds," in and adjoining the sheriffdom, and where counties are separated by a river, or frith, or estuary, the sheriffs of the adjoining counties have a cumulative jurisdiction over the whole of the intervening space (3). The offences which Sheriffs can competently try are all those crimes which infer only an arbitrary punish- ment, and which are not restricted by statute to any other forum (4). It has never been decided whether an 1 Jas. Douglas, jun., and Jas. Irving, Dumfries, April 27th 1866 (not yet reported). 2 Acts 17 and 18 Vict. o. 104^ § 531, and 18 and 19 Vict. o. 91, §21. 3 Act 11 Geo. IV. and 1 Will. IV. 0. 69, §§ 22,24.— Lewis v. Blair, H.C., Feb. 26th 1858 ; 3 Irv. 16 and 30 Sc. Jur. 508. 4 Hume ii. 60, 61.— ii. 64, 65.— Alison ii. 35, 36. — See Jas. Ken- nedy, Nov. 7th 1839 ; 2 Swin. 447 note, and Bell's Notes 61, where it was declared competent to try minor forgeries before the Sheriff, and Dawson v. M'Lennan, H.O., April 2d 1863 ; 4 Ii'v. 357 and 35 Sc. Jur. 515, where the same was held as to a charge of fraudulent concealment of effects by a bank- rupt.— See also Byrnes and others V. Dick, and Law ton and others v. Lawson, H.O., Feb. 23, 1853; 1 Irv. 146 and 25 Sc. Jur. 263. (Lord Justice Clerk Hope's opinion). JURISDICTION. 283 offence whicli hy statute is punishaUe in the discretion Jurisdiction of the judge, either hy imprisonment or a higher OF SHERIFFS. punishment, which a Sheriff cannot inflict, can compe- theranof^nos tently he tried in the Sheriff Court. The only case in py'^n'^tSby which the q[uestion was raised was one under the Mght pains which Poaching Act, for an offence for which the punishment not inflict may prescribed was seven years' transportation, or " such "n^^e Sheriff " other punishment as may by law be inflicted on per- Court. " sons guilty of a misdemeanour," as the Court might adjudge. The libel was found irrelevant as being " not " so framed as to be competently tried before the " Sheriff" (1). The question thus remains open whether if the prosecutor expressly limited his demand for punishment to such a sentence as the Sheriff could pronounce, the Sheriff could not competently try the case. There seems to be no reason in principle why this should not be done (2). As regards the jurisdiction of borough magistrates Jurisdiction and Justices of the Peace, it is not necessary to do more than state generally that at common law their jurisdic- tion is now confined to petty cases, whUe there are statutes too numerous to be quoted, by which they have jurisdiction to try particular offences. Their jurisdiction Jurisdiction to punish offences is confined to crimes committed in ogences^com- their respective boroughs or counties (3), except in the mitted in their \ /' X borough or case of crimes committed at sea (4), and offences in county, except reference to which jurisdiction is conferred upon the ^edarste,tu- magistrates of the place of apprehension by statute (5). *?''>' i™sdio- OF inferior MAeiSTKATES. 1 Hume ii. 60, case of Eussell in punished by penal servitude, note a. 3 Hume ii. 57 and cases of Cle- 2 See Alison ii. 37, 38. — One of phane: andWeir in note 1. the clauses of the Merchant Ship- 4 Acts 17 and 18 Vict. c. 104, § ping Act 17 and 18 Vict. c. 104, 631, and 18 and 19 Vict. c. 91, § 530, appears to make it compe- § 21. tent for the Sheriff to try certain 6 Act 4 Geo. IV. c. 34, § 3.— offences against that Act, although Clark v. M'Naught, H.O., March 9th the offences are felonies, and if 1846 ; Ark 33. tried in a higher court might be 284 ABRBST. AEREST. Arrest with- Any magistrate (1) who witnesses the commission of OUT WARRANT. .. i™ , i. J.-L £C J a crimmal offence may at once arrest the onender, or witnessing Order his arrest. Also if immediate complaint be made an-esl™*^ to a magistrate of a serious crime by others who know Or order arrest the fact and who the offender is, he may verbally order on dii-ect in- , . . ,„. formation. his arrest (2). Constables A Constable or other of&cer of law who himself sees witnessing . . . , crime, or a person ui the act of committing a felony or breach ioTmeloUt, °^ peace, or threatening violence, may at once arrest may arrest jiim. He may also do so on direct information of the offender. ■' Constable may others, and he may command the assistance ot the by- sista,n™of*^' standers in making the arrest (3). The powers of con- bystanders, stables to apprehend persons detected in the commission arrrsTon the °^ ^^ offencc, are not held to be abrogated by special spot not abro- statutory Tules, empowering iustices to grant warrant to gated by statu- to j ■ e \- % t I. \, e tory provisions summou ottenders on miormation on oath oi a breach ot as warrants, ^j^^ statute. In such cascs the officer is equally entitled to arrest offenders who are seen by him in the act of In serious Committing outrage (4). In cases of serious crime offi- may break ccrs of law may break open doors to reach the offender, refuTed admit- ^^*®^ Stating their purposc, demanding admittance, and tance. In mere being rcfuscd. But in case of mere breach of the peace, oniybr^kmto they may not break in, except for the purpose of quelling Kofni'ou'"^'^^' a disturbance actually proceeding (5). Citizen wit- Any citizcn witnessing a felony may arrest the crimi- may anest?"^ nal. But he may not do so on suspicion or information, 1 The word magistrate is here 4 M'Vie and Lynch v. Dykes, used in its widest sense, as inolud- H.O., May 28th 1855 ; 2 Irv. 429 ing all the higher Judges. and 28 So. Jur. 416. 2 Hume ii. 75. — Alison ii. 116, 6 Hume ii. 76, referring to sta- ll? Campbell 330. tutes 1717, o. 8.— 1528, o. 8.— 1567, 3 Hume ii. 75, 76.— Alison ii. c. 38.— 1661, c. 22.— Alison ii. 118. 117, 118.— Campbell 330. —Campbell 331. AEEEST. 285 nor may he break open doors. In case of mere breach Arrest with- of the peace, he may try to prevent or stop it, but cannot °"^ ^arramt. arrest (1). By special statutes, the power of arresting not break?/ or an offender taken in the act, is conferred upon certain t'^^^^\. H^ ' -^ breach of peace. persons, specially (2), and in some cases power is given Special statu- te any person to arrest (3). "^ '"'^^^' A magistrate, on receiving information of any (4) arkeston crime, may grant a warrant to arrest the offender. It warrant. would appear that even a baron-bailie may grant warrant trate may to apprehend and detain till a higher magistrate can be onMomation. informed of the charge (5). Except when required by special statute (6) the war- -^yarrant need rant need not be preceded by a written petition, or by "»* be pre- an oath or declaration of the applicant, although, if the tion or oalh.^ magistrate see cause, he may require such (7). And in a case where the statute prescribed that the warrant gt^tute requir- must proceed upon an information upon oath, the Court inginfprma- held that this proviso did not apply to the case of a not applicable warrant granted at the instance of the Procurator-fiscal, craveTby pub- there being a special clause by which power was given ^^ prosecutor. to the public prosecutor to prosecute under the act, without its being said as regarded him that he must , give information on oath (8). The warrant should be solemnities of dated, and if by a justice or justices of peace, should warrant. bear their style and quality, and the county for which, 1 Hume ii. 76, 77. — ^Alison ii. i Hume ii. 77. — ^Alison ii. 120. — 119. Sir Archibald Alison thinks Campbell 331. the injured party might act on 5 Hume ii. 77, referring to 20 information, but cites no authority. Geo. ii. c. 43. — ii. 77, case of Hay in — Campbell 331. note a. — Alison ii. 120. 2 For example, proprietors, ocou- 6 Blythe and Taylor v. Eobson, piers, and their servants, have the H.O., June 10th 1853 ; 1 Irv. 235 power to arrest under the Poaching and 2& Sc. Jur. 446 and 2 Stuart 453. Statutes.— 9 Geo. IV. o. 69, § 2, 7 Hume ii. 77.— Alison ii. 121.— and 2 and 3 Will. IV. c. 68, § 2. CampbeU 331. 3 For example, see the Salmon 8 Act 6 Geo. IV. c. 129, §§ 7, 11. Fisheries Act, 9 Geo. IV. c. 39, § — Neil v. Procurator-fiscal of Stir- 11, and the Coining Offences Act 24 lingshire, H.C., May 19th 1834 ; and 25 Vict. c. 99, § 31. Bell's Notes 120. 286 AEREST. Areest on WARBAHT. Where warrant and oath dated, absence of date in petition not fatal. Signature of one justice sufficient, unless two required by statute. Warrant may be to bring t before granter or other magis- trate. Indorsation necessary where warrant to be executed beyond bounds. Sheriff-court warrants good in all coun- ties. and place where it is given. It is also usual and right to state the crime charged. But a warrant is not necessarily void for want of such solemnities, provided the magis- trate's signature be duly appended, and the person to be arrested be designated as accurately as can be done in the circumstances (1). When the arrest is on a warrant issued in consequence of a written petition, it has been held not a good objection to the proceedings that the petition was without a date, the relative oath and the warrant being both dated (2). But it would probably be ruled differently if both the petition and the oath had no date (3). "Where a warrant to arrest is issued from the Commission of the Peace, the signature of one justice is in the ordinary case sufficient (4). But if any special statute requires the signature of two justices to the warrant, a warrant signed by one justice only will be invalid (5). The warrant may be to bring the offender before the granter, or any other magistrate of the bounds. It may be addressed to the granter's proper officers, or to any officer named, or even, if necessary, to a private citizen (6). An officer cannot arrest beyond the bounds for which the warrant runs, unless it be endorsed by a magistrate of the bounds to which the offender has fled. By sta- tute (7), warrants issued by Sheriffs for apprehension may be executed in any other county, provided they are executed by an officer of the Court from whence they issued, or by a messenger-at-arms. In all other cases where the offender has fled to another county or divi- 1 Hume ii. 78. — Alison ii. 122, 123.— Campbell 332. 2 Crawford t. Wilson and Jame- sons, H.O., Nov. 19th 1838; 2Swin. 200. 3 M'Leod v. Buchanan and Eose, H.O., Jan. 24th 18S5; 13 Shaw's Session Cases 1153 and 7 So. Jur. 190. 4 M'Creadie v. Murray, H.C., March 22d 1862 ; 4 Irv. 176 and 34 Sc. Jur. 468. B See case of M'Leod y. Bu- chanan supra. 6 Hume ii. 78 Alison ii. 123. —Campbell 332. 7 Act I and 2 Vict. c. 119 § 25. AKEEST. 287 sion of the kingdom, the warrant must be endorsed by Arrest on a magistrate of the place where it is proposed to appre- WAERANT. hend him (1). The bearer of the warrant must, if re- England or quired, make oath to the verity of the warrant (2). Ireland. "Where the . place to which the offender has fled is not indorsation in within the United Kingdom, but in the colonies, the °° °"^^' indorsation must be by a Judge of her Majesty's supe- rior Court in the colony (3). If the offender has Extradition escaped to a foreign country, it is only by the operation treaties. of extradition treaties that his arrest can be obtained (4). An endorsed warrant may be executed either by the Mode of person bearing it, or by any of those to whom it was endorsed^ originally directed, or by of&cers of the place of indors- warrant. ation (5). The indorsation of warrants applies only to Indorsation warrants for apprehension for examination in order to arrestln order trial, not to the case of persons ordered to be appre- atrial. hended with a view to their being bound over to keep the peace (6), or to their being punished under a sen- tence already pronounced (7). When arresting the accused, the officer should inform Procedure of him of the substance of the warrant. As a rule, the °®=!«^^ officer, if required, should show the warrant, and parti- prisoner. 1 Hume ii. 78, 79, and notes re- npon an oath. The terms of the ferring to 13 Geo. III. o. 31, 44 Act 54 Geo. III. seems quite ex- Geo. III. c. 92, ' § 4, and 54 Geo. plicit as to an oath not being indis- III. c. 186.— Alison ii. 125.— Camp- beU 332, 333. 3 Act 6 and 7 Vict. c. 34, § 2, as 2 This was imperative under the amended by 16 and 17 Vict. c. 118. Acts 13 Geo. III. and 44 Geo. III., 4 In such cases tl^e procedure but those parts of these Acts by must of course be in a great mea- which it was made unlawful to sure regulated by the foreign dispense with the oath, were re- power. pealed by 54 Geo. III. c. 186.— See 5 Acts 13 Geo. III. o. 31, § 2.-44 Alison ii. 129, case of Nisbet there. Geo. III., c. 92, § 4.-6 and 7 Vict. — Campbell states it as still impera- c. 34, § 2. — Hume ii. 79. — Alison ii. tive, p. 332, and the Act 12 and 13 124. Vict. c. 69, by which the laws aa to 6 Hume ii. 79, case of Taylor in Irish procedure are consolidated, note 1. — Alison ii. 129. gives a form of indorsation (Sche- 7 Eeattie v. Sir John Maxwell'a dule K), which states in its pre- Trustees, H.O., March 9th 1846 ; amble that the indorsation proceeds Ark. ^4. 288 ARREST. Abrest on WARRANT. Extent of power to force entrance. Prisoner must be brought before magis- trate without delay. Prisoner ar- rested on en- dorsed warrant must be taken before magis- trate of place of indorsation, and by him either admitted to bail or given over to be conveyed to Scotland. Mode of con- veyance from England. cularly if he te only acting as an officer pro hac vice, or be beyond his ordinary bounds (1). Before breaking open doors in pursuit, even with a warrant, admission must have been asked and refused. The right to break in applies to any house, and to closed places within the house (2). Where a person has been arrested on a criminal charge, there must be no delay in bringing him before a magistrate. Detention for a single night is permissible if distance or the lateness of the hour of apprehension render this necessary (3). This is the rule where the arrest is on warrant, and of course it applies with greater force where the arrest is made without a war- rant (4). Burgh statutes generally enact that the person arrested must be brought before a magistrate, " in no case later than in the course of the first lawful " day " after arrest (5). Where the arrest takes place on an endorsed warrant, the officer must take the prisoner before a magistrate of the bounds to which the indorsa- tion applies, that the question of bail* may be disposed of. If bail is not accepted, or cannot be found, the magistrate remands the prisoner to the custody of the officer, to be conveyed back to the jurisdiction from which he had escaped. Where the apprehension is in England, the officer, on receiving the prisoner from the English magistrate, should, according to the strict terms of the statutes, convey him into a county of Scotland next adjacent to England, and take him before a magis- trate there, and the magistrate there being empowered to proceed in the same manner as if he had been appre- 1 Hume ii. 79, and cases of Ed- monston and others: and Sinclair there. — Alison ii. 124. 2 Hume ii. 80. — Alison ii. 124. — Campbell 335, 336. 3 Hume ii. 80. — Alison ii. 129, 130. — Campbell 336. — See also Crawford v. Blair, H.C., Nov. 17th 1856; 2 Irv. 611 and 29 8c. Jur. 12. 4 Macdonald v. Lyon and Main, H.C., Deo. 8th 1851 ; J. Shaw 516, and 24 Sc. Jur. 65, and 1 Stuart 129. 5 See 3 and 4 Will. IV. o. 46, § 79 (General Burgh Act) and 11 and 12 Vict. c. 113, § 89 (Edinburgh Police Act.) Vide 299. AEEEST. 289 hended ■witMn his county (1) But in modern practice Akrest os this rule is not carried out as regards land carriage, the ^^^^^'^- facilities of travelling being such that it would hp no, advantage to the accused to be detained in the southern- most county of Scotland, and taken before a magistrate there. But where a prisoner was conveyed from Eng- Conveyance land by sea to a county not adjacent to England this county not was held iQegal (2). If the apprehension takes place in next adjacent Ireland, the duty of the officer is, on receiving the priso- illegal. ner from the Irish magistrate, to convey him to the Modeofcon- o ' J veyance from county or place in Scotland, next or near to Ireland, and Ireland. to take him before a magistrate there, the magistrate being empowered to proceed as if the apprehension had taken place in his own county (3). When the prisoner is brought before the magistrate Prisoner of the place, the Courts of which have jurisdiction to ^™giltratfr deal with his offence, the first question to be decided is either dealt whether the case shall be disposed of summarily, or riiy or remitted whether the offence charged is of such a nature as to wher c'ourt. require that ii be investigated in a more formal manner. It will be most convenient to speak first of the procedure Prooednre in in the case of serious crimes, as of course it is in reference to^be^first'"'^ ^ to these that the rules of criminal law practice are prin- considered. cipaUy framed, the procedure in petty cases being the exception, in which formality and strictness are in greater or less measure dispensed with. JUDICIAL EXAMINATION. The first step in the proceedings against the prisoner Examination charged with any serious offence is his judicial exami- before a TWAnrfiTR AT MAGISTRATE. 1 Act 13 Geo. III. c. 31, § 2. Swin. 393 and Bell's Notes 154. 2 Matthews t. the Glasgow Iron 3 Act 12 and 13 Vict. o. 69, Company, H.C, Nov. 28th 1836; 1 § 15. T 290 JUDICIAL EXAMINATION. Examination MUST BE BEFORE A MAGISTRATE. Any magis- trate may pre- side. Baron-bailie. Temporary sheriff-substi- tute. But he must be a magistrate. Sheriff-olerk even acting as sheriff cannot preside. Magistrate must be truly present Law now more strict than for- merly. nation. This takes place before the magistrate to whom he is first presented, or before some other magistrate on his remit. The magistrate before whom he is brought for examination need not have power or jurisdiction to try the offence. It is even doubtftil whether a baron- bailie cannot preside (1). A person acting temporarily and gratuitously as sheriff-substitute may preside (2). But whoever presides must be truly a magistrate (3). And it is not competent for a sheriff-clerk, acting as sheriff-substitute by deputation, to take a declara- tion (4). The magistrate must be present during the examiaar- tion of the prisoner, as it is his duty to protect him from any unfair or oppressive examination (the prisoner not being permitted to have legal advice), and therefore, it will not suffice that a declaration emitted in his absence be acknowledged afterwards in his hearing as correctly taken down before being signed (5). It is true that in one case it was held — one judge dissenting — ^that though the magistrate fell asleep at intervals during the exami- nation, and for a quarter of an hour at a time, the declaration might be received (6). But a declaration would certainly not be sustained in similar circumstances now. A magistrate who falls asleep at intervals is not likely to be a very acute observer during his waking mo- ments. In a later case, where the magistrate put ques- 1 Alison ii. 566.— Thos. Hay, Feb. 2d 1824 ; Shaw 113 and Hume ii. 77, note a. 2 John Mabon and Edward Shil- linglaw, Jedburgh, April 4th 1842 ; 1 Broun 201 and Bell's Notes 161, referring to 6 Geo. IV. o. 23, § 9, as amended by 9 Geo. IV. t. 29, § 22. 3 Hume ii 327, case of Erskine in note a. — ^ii. 329, cases of Hughes : and Eonald and others in note 1. — Alison ii. 560. 4 John Stewart, Perth April 22d 1857 ; 2 Irv. 614 and 29 So. Jur. 344. 6 Hume ii. 327, case of Davidson in note a. — Alison ii. 560, 561. — Jas. Davidson, Aberdeen, April 9th 1829, or April 17th 1827 (reports differ) ; Shaw 207 and Syme Appx. p. 46. — Dietrich Mahler and Marcus Berrenhard, H.O., June 16th 1857; 2 Irv. 634 and 29 Sc. Jur. 662. 6 Murdo Mackay and others, Feb. 21st 1831 ; 3 So. Jur. 302 and BeU'a Notes 242. JUDICIAL EXAMINATION. 29 I tions to the accused, but went away wljile the declaration Examination was being written out, for about a quarter of an hour, and befokb^^a only heard it read over before signing, the declaration was magistrate. rejected, though the magistrate declared that it was in substance what the accused had said in answer to his questions (1). The prisoner must be in his sound and sober senses, Eequisites as and of this it is the duty of the magistrate to assure accused. himself (2). Whatever the prisoner says must be free J™o^er must ^ ' ^ •' be in his sound and voluntary, and not induced or elicited by threats or senses and /ON A ■ T. J.1- ■ • J what he says promises (3). A mere promise by the person injured mustbevoiun- that if the accused confessed he would not prosecute *^^- . him will not nullify the declaration. Indeed, such a the prisoner fact cannot be admitted to proof as an objection (4). ^a°deoiIra- But if any inducements are held out by a superior of&- ''o'l; uiiiess ... . made by a cer of police, this will probably make a declaration in- person in admissible (5). If a police-ofiacer were to teU the *^*^°"'y- accused that it would be better, or greatly in his favour, for him to tell all about the matter, the declaration will be inadmissible, but not if he merely bids him tell the truth (6). In one case it was held that a declaration might be received, although the procurator-fiscal told the prisoner, he "ought to speak the truth and tell no 1 Jas. M'Maian, Glasgow, Sept. 559, 560.— Mary Elder, H.C., Feb. 29th 1858 ; 3 Irv. 213.— See also 19th 1827 ; Syme 92.— Jas. Con- observations by Lord Justice Ge- naoher, Ayr, April 14th 1823 ; neral MacneU, in Dietrich Mahler Shaw 108. and Marcus Berrenhard, H.C., June 3 Hume ii. 328, 329. — Alison ii. 15th 1857; 2 Irv. 634 and 29 Bo. 661 1» 564. Jur. 562, impugning the lax rule 4 Hume ii. 335 case of Honeyman laid down in Alison ii. 561. It and Smith in note 1. — Alison ii. would appear from the Jurist Ee- 563. — Samuel Ferguson and others, port of the case of Maokay, that Dumfries, April 19th 1819 j Shaw 59. the ground upon which the ma- 6 Hume ii. 324, case of M'Laren jority of the Court proceeded in ad- and Grierson in note a. — Alison ii. mitting the declaration, was that 564. Dietrich Mahler and Marcus the magistrate had been awake when Berrenhard, H.C., June 15th 1857 ; it was read over, a ground which 2 Irv. 634 and 29 So. Jur. 562. the above cases have made wholly 6 Joseph Darling, Perth, April untenable. 20th 1832 ; 5 Deas and Anderson 2 Hume ii. 80— ii. 328.— Alison ii. 255 and Bell's Notes 241. 292 JUDICIAL EXAMINATION. MODB OF TAKING DECLAKATION. Prisoner warned that he need not answer, and that what he says may be used against him. Case of priso- ner remaining silent or refusing to answer. Answers taken down and af- terwards the whole declara- tion read oyer. Declaration should not be written by per- son connected with prosecu- tion. Interpreter sworn where prisoner does not speak English. lies." (1). But the magistrate must be specially cautious not to say a single word that may even seem like an inducement to the prisoner to speak (2). The magistrate must inform the prisoner of the charge against him. He should warn him that what he says may be used in evidence against him, that he may decline to answer any or all of the questions put to him, and these solemnities are now so established in practice, that the want of theni would probably invalidate the declaration, although formerly they were not held essen- tial (3). If the prisoner remain silent the magistrate should continue to interrogate him until his determina- tion not to speak is clearly shown (4), and the fact that he remained silent should be formally recorded by the magistrate (5). If the prisoner verbally refuses to answer, his refusal is taken down and forms a valid declaration. If he answer, what he says is taken down, and on the examination being concluded the whole must be read over to him, and his explanations or amend- ments adhibited (6). Declaration should be written by a neutral party — the Sheriff-clerk or his depute — arid not by the procurator-fiscal, or one under his control (7). If the prisoner does not understand English, a sworn interpreter must be employed, and what has been taken down must be translated to him at the conclusion of the examination (8). The declaration of a deaf and dumb 1 Eob. Fulton, Ayr, Sept. 20th 1841 ; 2 Swin. 664 and Bell's Notes 241. 2 Hume ii. 331, case of Wilson in note b. — Alison ii. 562, 563. 3 Hume ii. 80,81.— ii. 330.— All- eon ii. 564 4 Jas. Bell and others, H.C., Jan. 19th 1846; Ark. 1. See also Jas. Scott, H.O., Nov. 17th 1827 ; Syme 278. 5 See the cases of Bell and others • and Scott supra ; also Hugh Thom- son and Jas, "Watt, Aberdeen, Sept. 26th 1844; 2 Broun 286. 6 Hume ii. 81 ii. 330. — ^Alison ii. 568, 669. 7 Agnes Kelly, Ayr April 28th 1843 ; 1 Broun 543 and Bell's Notes 167. — Galbraith t. Sawers and others, Nov. 13th 1860 ; 3 D. 62 and 13 So. Jur. 23. (Lord Justice Olerk Boyle's opinion). 8 Alison ii. 669, 570.— Archibald Campbell, Inverary, April 1837; BeU's Notes 243.— Roderick Mac- kenzie, Inverness, April 13th 1839 ; 2 Swin. 345 and BeU's Notes 241. JUDICIAL BXAMmATION. 293 TAKING DBCLAKATION. prisoner who can write may be taken by questiojis and Mode of answers written on a slate, the copy made from the slate being read over by the accused before signing (1). The examination must be conducted fairly, no pres- Examination sure being put on the prisoner, by rapid or perplexing '^"^' ^ **"^' examination (2). But it is not per se a good ground of objection to a declaration that the examination occupied a long time, or that where it is proposed to show articles to the prisoner, a few preliminary questions should be asked about them before showing them (3). The declaration is signed by the prisoner and the Authentica- magistrate. If the prisoner refuse to sign, or be, or pre- oLaeation" tend to be unable to write, a statement of the fact is added Prisoner and to the declaration, and it is signed by the magistrate in his sign, or if pn- presence (4). Where it was objected that a declaration o°.°eannot the was not signed, that which was not separately signed magistrate being written on the same piece of paper with that caseofad- which was signed, and bearing that the examination had jonmedexami- ° ' °. nation, where been continued from the previous day at the request of the part taken the accused, the objection was repelled, the whole of the signed, writing on the paper being held one declaration (5). When articles are shown to the accused during the Procedure examination, they are imported into the declaration by ^eTho^'to^ the sealed labels, (which in practice are now invari- prisoner, ably attached, for the purpose of identification, to articles which are connected with a criminal charge), being signed 1 David Smith, Perth, April 28th tempt to entrap, to show the artioIeB 1841j2SwiQ54i7andBell'sNotes242. before asking any questions about 2 Agnes Kelly, Ayr, April 28th them. 1863; 1 Broun 543 and Bell's Notes 4 Hume ii, 81.— ii. 330.— Alison 157- a 665, 566.— Margaret Plenderieith 3 Jessie M'Intosh or M'Lachlan, or Dewar, H.O., June 21st 1841 j Glasgow, Sept. 17th 1862; 4 Irv. 2 Swin. 658 and BeU's Notes 241. 220 and 35 So. Jur. 50. The last —French and others v. Smith, June mentioned proceeding certainly has 26th 1855; 2 Irv. 198 and 27 Sc. an appearance of unfainiees about Jur. 499. it. It would be undoubtedly the 6 Joseph M. Wilson, H.C., June most straightforward course, and 8th 1857; 2 Irv. 626 and 29 Bo- hare less of the aspect of an. »t- Jw% 661. 294 JUDICIAL EXAMINATION. ArTHENTIOA- TION OF DECLARATION. Two witneBses 'Witnesses muBt under- stand the pri- soner's lan- guage. Witnesses sign, but need not add word witness. Question whetlier signa^ ture of witness can be dis- pensed with. Eb-examina- TION. Competent at any time before service of libel, either on mo- tion of prose- cutor or ac- cused. Previous de- clarations miist be read over where re- lating to same charge. as relative to the declaration by the prisoner and magis- trate, or by the magistrate where the prisoner cannot or will not sign, and by a statement of their being so signed being inserted in the declaration. The declaration must be taken in the presence of two witnesses (1). They must understand the language spoken by the prisoner, if he cannot speak English (2). The witnesses sign the de- claration (3), in practice, only on the last page (4), and it is not indispensable that they should add " witness " to their signature (5). In an old case, a short declaration was received, though one of the witnesses had not signed it, he swearing positively to its contents (6). But it may fairly be doubted whether this case would be followed now. In a case decided in the High Court about the same time, the signature of the witnesses was held to be indispensable (7). A prisoner may be examined on declaration after his commitment for trial (8), but not after he has been served with a libel (9). The discovery of any important evidence is a ground for re-examining the accused and getting his explanations (10). Any number of declara^ tions may be taken from him, if necessary, and if the proceedings be not oppressively conducted, and he himself may demand re-examination (11). When a prisoner is re-examined, any declarations already taken must be 1 Hume ii. 81.— ii. 328.— Alison S57, 558. 2 Burnett 492, cases of Eobert- Bon; and Cameron there. — Alison ii. 570. — ^Roderick Mackenzie, In- verness, April 13th 1839 ; 2 Swin. 345 and BeU's Notes 241. 3 Hume ii. 81. — Alison ii. 558, 659 4 Alison ii. 559 and case of Ma- thieson there. 6 Joseph M. Wilson, H.C., June 8th 1857 J 2 Irv. 626 and 29 So. Jur. 861. 6 Ann Swan or Forbes, Perth, April 12th 1827 ; Syme Appx. 441 and Hume 329 note a. I Jas. Benton and Andrew Fullarton, H.C., July 13th 1826; Alison ii. 865 and Lord Wood's MSS. 8 Hume ii. 326, case of Paterson in note 2. — Alison ii. 574. 9 Hume ii. 331, 332. 10 Will. Smith, H.O., April 12th, 13th, and 14th 1854; 1 Irv. 378 (Lord Justice Clerk Hope's charge, p. 455). II Hume ii. 330, 331, 332.— Ali- son ii. 874. JUDICIAL EXAMINATION. 295 read over to him (1). But this only applies to re-exami- Ee-bxamin/- nation on the same charge, not to examination on a — '■ different charge (2), even though it may tend to throw light on the first charge (3). In one case of re-examina- Question tion, at the prisoner's request, a second declaration was top^of Mpy* " allowed to be put in evidence, though only a copy of sufficient. the first had been read over to him (4). As regards the Question as to time at which the previous declaration must be read vious deoiara- over, the report of one case (5) appears to indicate that ^e°ad"ver.''^ it has been held not to be a good objection that the first declaration was not read over before the new examina- tion was proceeded with, but that it was sufficient that the first declaration was read over during the course of the second examination. If this report be strictly correct, (which from its terms seems questionable), it is thought that the decision is of doubtful soundness. It appears wholly inconsistent with fairness to the accused not to read over the first declaration before calling upon him to submit to re-examination. The absolute verbal strictness of a formal document is Declaration not required in a declaration (6) A trifling erasure (7) l^^j-obmal^ or deletion (8), which manifestly can cause no prejudice cocument. to the accused, will not be held a ground for rejecting it. ^rasure or de- Further, where a declaration, which was in fact written Number of upon six pages only, bore to be written upon " this and r^liiy stated. " the six preceding pages," the Court repelled an objection 1 Hume ii. 330, 331, and case of minute of this case to be rather con- Hackenzie and M'Cormick in note fused, and the circumstances seem 1. — ^Alison ii. 570, 571. — See Ann to have been special) Tayne, InTemess, April 15th 1819 ; 6 John Brown and Oatharina 8haw 33, as commented on in Alex. Grant, Dumfries, Hay 1st 1837 ; 1 Duncan and Samuel Hippesley, Swin. 501 and Bell's Notes 243. Aberdeen, Oct 3d 1821 ; Shaw 45. 6 Hume ii. 330.— Alison ii. 574. 2 Alison ii. 575. 7 Janet Cain and Sarah Quin, 3 Will Goodwin, Feb. 27th Perth, April 1833 ; Bell's Notes 242. 1837; 1 Swin. 431 and Bell's —David Todd, H.O., July 6th 1835 ; Notes 243. Bell's Notes 242. 4 Hume ii. 331, case of Earl in 8 Ann Swan or Forbes, Perth, note b. (Baron Hume states the April 12th 1827 ; Syme Appx. 44. 296 JtJDiCtAL EXAMINAMON. Declaeation not a steict- liT FOEMAL DOCUMENT. Clerical error in date. Omission of a word. Not necessary to state in de- claration that accused cau- tioned, or that previous de- claration read over, or that it was freely emitted when accused sane. to its reception (1). Again, where, by a clerical en-or, the declaration was dated 1847 instead of 1848, the Court, after proof that the error was clerical, admitted it in evidence (2). And in the same way, where the accused could not write, and the clerk had written at the end of the declaration that the Sheriff sighed for him, "he not having been taught to," but accidentally omitted to add the word " write," an objection to the reception of the declaration was repelled (3). It is usual in the preamble of the declaration to state that the prisoner was duly cautioned as to his privilege to decline to an- swer, and where he had emitted a previous declaration, that this declaration was read over to him, and that he adhered to it, and it is not unusual to state in the docquet at the end that the declaration was freely and voluntarily emitted while the accused was in his sound or sober senses, but it forms no ground of objection to a declara- tion that these facts, or any of them, are not stated in it (4). In one case, where the declaration had been taken through an interpreter, the objection that the declaration did not bear that he was sworn, was re- pelled (5). 1 Eob. Pulton, jun., Ayr, Sept. 20th 1841 i 2 Swin. 664 and Bell's Notes 241. 2 Jas. Kobertson, Perth, July 28th 1850; J. Shaw 447. 3 Hume ii. 326, case of Knight and Fennycook in note 2. — Alison ii. S74. 4 Jane M'Pherson or Dempster and others, H.O., Jan. 13th 1862; 4 Irv. 143 and 34 So. Jur. 140. (No statement that caution given.) As to this point see also Duncan t. Bamsay, Aberdeen, April 15th 18S3 ; 1 Irv. 208 (Lord Wood's judgment and note), — Alex. Duncan and Samuel Hippesley, Aberdeen, Oct 3d 1821 ; Shaw 45 (no statement that first declaration read over). — Janet Cain and Sarah Quin, Perth, April 1833 ; Bell's Notes 241 (no statement that declaration freely and Toluntarily emitted). — Chas. Gal- loway and Peter Sutherland, Nov. 10th 1829; Bell's Notes 241 and Helen Hay, Perth, Oct. 8th 1858; 3 Irv. 181 and 31 So. Jur. 30 (no statement that accused was in his sound and sober senses). 6 Murdo Mackay and others, H.C., Feb. 21st 1831; Bell's Notes 2^. 297 COMMITMENT. When the prisoner has been examinecl, he may then Pkooeduee be committed, either for trial or for further examination EXAMraATiow. — if the latter, he is not entitled to bail, and therefore Accused may I ' IIP it"'® oommitted such confinement must only be for a reasonable for trial or for time (1). No exact time can be fixed, as the reason- examination- ableness of a delay may depend very much on circum- ^^ the latter it ,, . ,., must be for stances (2). But whatever be the time dunng ■wnicn a reasonable the accused is detained under commitment for examina- ^^ confine- tion, it is not lawful to keep him in close confinement men* limited for more than eight days from the first commitment (3). ° ^'^ *^°' Except in certain cases to be noticed later, three Commitmbnt things are essential to a legal commitment for trial. First, there must be a signed warrant, precise in the Signed war- name and designation of the accused, either by these being embodied in it, or by its making plain reference to the petition or information annexed (4). Second, the warrant must specify the crime not Warrant must merely by naming it, but by a general statement ; for ^P^"^y <=""ie- example, that the accused did murder A. B. by stabbing him, and stating place and day (5). These particulars This generally are generally given by subjoining the warrant to the doiie by sub- petition, warrant to the Third, there must be a signed information, although ligneTinfor- it need not be a formal document — a letter even being mation^need - o not bo formal. sumcient (6). 1 Hume ii. 81, 82.— Alison ii. 3 Act 1701, c. 6. 134, 135.— Fife and M'Laren v. 4 Act 1701, c. 6.— Hume ii. 84.— Ogilvie and others, July 29th 1762; AUson ii. 151 to 163.— Philp v. M. 11750. — Andrew v. Murdoch, Magistrates of Easter Anstruther, June 20th 1806 ; F. 0., vol. 13, p. June 23d 1748 ; M. 13963. 569. e Hume ii. 86.— Alison ii. 153 2 Arbuoklev. -Taylor, April 27th, Mure v. Sharpe and others, July May 1st, and July 10th 1815 ; 3 10th 1811, F. C, yol. 16, p. 328. Dow's Appeals 160 (Lord Ghanoel- 6 Hume ii. 85. — Alison ii. 164. lor's judgment, p. 184). 298 COMMITMENT. Commitment pob trial. Defective "Warrant will be suBpended. Bule9 not ap- plicable to ^k- ing security for peace or petty cases of riot, &o. Privy Council in cases of State exigency may order commitment. Double of war- rant must be served on pri- soner. Where war- rant subjoined to petition double of both usually served. Where a warrant is defective in any of the three essentials, the Court of Justiciary will at once suspend the warrant and liberate the accused, if, on the bill being intimated to the person concerned, he do not obtain and have served a sufficient warrant (1). The rules above detailed do not apply to the case of inferior magistrates taking security for keeping the peace, or dealing with riots. Sabbath desecration, or other petty cases, parties having the privilege of the statute as regards bail,* and right to demand a trial (2). •}" There may be cases where a warrant to arrest may at once order commitment, as, for exam- ple, where a judge orders a person to be imprisoned for contempt of Court (3), or indignity offered to him as a magistrate (4), or for prevarication, or commits a person to prison tUl liberated in due course of law for perjury committed in a judicial proceeding (5). But in the ordinary case such a warrant would be illegal. The Lords of Justiciary, however, grant warrant in this form, as they only do so on the Lord Advocate's motion, in whom they repose confidence as a superior official, and as they never conduct the investigations prelimi- nary to trial (6). Lastly, in case of imminent or actual invasion, rebellion, or insurrection, the Privy Council, or any five of them, may order commitments (7). A double of the warrant under the hand of the officer who bears the warrant, or of the keeper of the prison, must be served upon the accused before or immediately upon imprisonment. Where the warrant is subjoined to the petition, it is usual to serve a double of both. But a 1 Hume ii. 86 and cases of Brodie : O'Neil : the Earl of Wig- ton: the Earl of Home : Delavalle : and Oalder there. — Alisonii. 159, 160. 2 Act 1701,0. 6.— Hume ii. 84, and case of Swinton v. Spence there. — Alison ii. 1S2, 153. 3 The subject of Contempt of • Fide 299. Court will be noticed later. 4 Burnett 328, case of Dunbar in note *. 5 Murdo Mackay and others, H.C., Feb. 21st 1831 ; Bell's Notes 167. 6 Hume ii. 80.— Alison ii. 130. 7 Hume ii. 86. — Alison ii. 160. t Fide 302. BAIL. 299 double of the warraiit is all the accused is entitled to, Commitment and if it sufficiently set forth the accusation, he cannot "™ — : — complain that he did not get the information along with it (1). BAIL. Except in certain cases to be afterwards noticed, aU What m. 11-11 11 ••! OFFENCES offences not capital are Dauaole, and the privilege ex- bailable. tends to every commitment in order to trial (2), includ- ^^t o""^^^. ing cases where the commitment is direct, as in the mittai for trial case of a person committed for perjury in the course of cases. a judicial proceeding (3). In determining whether the Question crime is capital or not, the letter of the law is to be ^genoroapitai taken, and the nature of the crime is to be iudged tobedeter- . . "I . mined strictly. of, not by the mere name given to it m the in- formation or warrant, but by consideration of the facts set forth (4). Until it can be determined whether the Bail should ba crime is capital or not, (as in the case of a wound which ,eff"oTof wound may prove fatal), bail should be refused (5). The uncertain, offences which are not capital, but in which the accused certain is not entitled to bail, are serious forgeries, high crimes ^^^^^ ""' and offences imder the Post-oflSce Act, and treason- though not felony (6). '^^^^^ 1 Hume ii. 85. — Alison ii. 154. " sent of the Lord Advocate, 2 Act 1701, c. 6. — Hume il. 81. — " where, from the nature of the Alison ii. 160, 161. " charge, such consent ought to 3 Hume ii. 89. — ^Alison ii. 163. — " have been first obtained, his Lord- Ker V. Orr and Fulton, Nov. 22d " ship thinks it proper to direct the 1744 ; M. 7419. " Procurators-Fiscal to bear in 4 Hume ii. 88, 89, and case of " mind that in the following cases, Connocher there. — Alison ii. 161, " viz., Murder, Assaults under 10th 162, 163. " Geo. IV., cap. 38, Bobbery, Rape, 6 Hume ii. 90, and case of Corse " Wilful Fire-Eaising, Cattle and there. — Alison ii. 163. " Horse Stealing, Sheep Stealing 6 The following direction to " of more than one Sheep, Furtum Procurators-fiscal was issued from " Grave, Three Acts of Theft, the Crown OfSce in 1854 : — " Some " Theft aggravated by two pre- " instances having recently occur- " vious convictions, Theft aggra- " red of accused persons being " vated by habit and repute. Theft <■ admitted to bail without con- " by Housebreaking, Incest and 300 BAIL. What offences bailable. Supreme court may allow bail in non-bail- able cases. In post-office cases sheriffs have this power. And Lord Ad- vocate may consent to bail. Mode of ap- plication FOK bail. Application may be before or after incar- ceration, and to committing magistrate, or any judge com- petent to try the offence. Application must be in writing. Bail may be allowed by the Supreme Court in their discretion, even in cases in which it is not otherwise competent (1) ; but the Court may fix the amount arbi- trarily, without regard to the ordinary legal rates (2). In the case of Post Office offences the same power is given to Sheriffs and their substitutes (3). The Lord Advocate may consent to bail in such cases, but where it is allowed by his consent, he may fix it at a sum be- yond the ordinary legal rates (4). Applications for bail may be made before or after im- prisonment (5), and to the committing magistrate, or to the Commissioners of Justiciary, or to any judge, pro- vided he can competently try the offence (6). The ap- plication must be in writing, or it cannot be founded on in after proceedings (7). It offers to find caution for six months, to appear and answer the charge, and is accom- panied by a copy of the warrant of commitment, this not being a rigorous solemnity, but, of course, absolutely neces- " Unnatural Crimes, Forgeries " which were capital previous to '• the 2d and 3d Will. IV. ; i. e., " Forgeries of Obligatory Writings, " such as Bills, Bonds, Bank " Cheques, Promissory Notes, " Deeds, &o. — The High Crime and " Offence under the Post-office Act^ " 7th Will. IV., and 1st Vict. cap. " 36, and all Crimes m.ide capital " by any Statute now in force, it is " not in the power of any Magis- " trate to admit to bail without " consent of the Lord Advocate ; " and the Procurators-Fiscal will ^^ take care (so far as within their " power) that bail is not accepted " in any of the above oases without " communication with Crown coun- " sel." — To these must be added the offence of treason-felony, under the Act 11 Tict, o. 12, § 9. 1 Hume ii. 90, 91, and cases of Fulton: Monro: Henry: Collie; and Smith and others there. This is specially provided as to forgery cases by 5 and 6 Will. IV. o. 73, § 2, and as to Post-offioe offences by 7 Will. IV. and 1 Vict. c. 36, § 38. 2 Hume ii. 90, case of Fulton there. — ii. 91, case of Symmons in notel. This is specially provided as to forgery and Post-office offences: see previous note. 3 Act 7 Will. IV. and 1 Vict, u. 36, § 38. i Hume ii. 89, case of Macdonald there.— Alison ii. 167, 168.— This is specially provided in reference to forgery cases by 5 and 6 Will IV. c. 73, § 1, and in reference to Post-offioe offences by 7 Will. IV. and 1 Vict. c. 36 § 38. 5 Act 1701 c. 6.— Hume ii. 93. 6 Hume ii. 96 and case of Finlay- son in note 1. — ^Alison ii. 170. 7 Hume ii. 94.— Alison ii. 168, 169. — Arbuckle v. Taylor, April .27th, May 1st, and July 10th 1815 j 3 Dow's Appeals 160. BAIL. 301 sary, if the judge applied to is not the judge who granted Modb of the warrant of commitment, and does not know the cir- for bail. CTimstances of the case (1) A peer may apply to the Application of Lords of Justiciary or the Sheriff of the county where p"®'' he is imprisoned, and the caution in his case is to answer the charge in any competent court, within twelve months in Parliament, or the Court of the Lord High Steward, and within six months if before a Scotch court (2.) If hail be improperly refused, relief may be had in the Supreme Court (3). On the other hand, if bail be improperly accepted, the bail-bond is still valid, and the sum in it may be forfeited on the failure of the party to appear (4). Bail is limited to ^1200 for a nobleman, ^600 for a Amount of BAIL. landed gentleman, d&SOO for a gentleman, or burgess, or householder, and £60 for any inferior person (5). In Judge applied treason cases double bail may be exacted (6). The ^^in24^ judge applied to must modify the sum within twenty-four ''"^ li^^jj^of ® hours of the application being presented to him if the error of judg- offence be bailable, but he is not liable to penalty for i^g^aU."^^ ^" delay or error in judgment in refusing bail ; except at common law where he acts in flagrant violation of jus- Bail being tice (7). The sum being modified and bail found, and ^"SfirlTer^* instniments taken on the delivery of the caution, the Hberation. judge must order liberation, unless any question be wlbiefor raised as to the sufficiency of the bail, in which case the aXy'i^inves- judge shall not be answerable for the delay caused by tigating suffi- enquiry, unless it be undue (8). When bail has been Prosecutor can- modified it is incompetent for the prosecutor to raise any ^l aSaUbaU question afterwards as to the sufficiency of the amount tas been taken. of the bail (9). 1 Hume ii. 94. — Alison ii. 169. 6 Act 39 Geo. iii. c. 49. — ^Hume ii. 2 Act 6 Geo. IV. c. 66 § 8.— 92.— Alison ii. 167. Hume ii. 93, note b ^Alison ii. 170, 6 Act 1701, o. 6. 171. 7 Hume ii. 97.— Alison ii. 171, 3 Hume ii. 90, case of Grimm 172, 175, 176. there. — ^ii. 97. — Alison ii. 179. 8 Hume ii. 96. — ^Alison ii. 179. 4 Jean M'Arthur or Kirk, Stir- 9 See petition by the Procurator ling, Sept. 11th 1829 ; BeU's Notes Fiscal of Glasgow, July 28th 1801 ; 158. Hume iL 92, note2.— Alison ii. 176 802 PREVENTION OP UNDUE DELAY IN PROSECUTIONS. Bail cndeb endorsed warrants. ' Magistrate of place of indor- sation may allow bail. Unless magis- trate who issues warrant write "not bail- able " upon it. In the case of warrants endorsed to other parts of the kingdom, the accused may be admitted to bail by any magistrate of the bounds of indorsation (1). But where the party applying for a warrant satisfies the judge that it may have to be executed in another part of the king- dom, and the judge is of opinion that the offence is not bailable, he writes "not bailable" on the face of the warrant. If this is not done, the accused, if brought before a magistrate in another part of the kingdom, may be admitted to bail no matter what the offence (2). PREVENTION OF UNDUE DELAY IN PROSECUTIONS. Eight of accused to early trial. On commit- ment prosecu- tor may be required to fix diet within sixty days. In treason cases forty days must elapse. Accused ap- plies to Court that can try offence and asks intimation to the Lord Advocate In a Siipreme Court case, or to the fiscal in minor The power of every person committed to prison for crime, to compel the prosecutor to bring him to trial within a limited period, is conferred by statute (3). When committed for trial he may at once apply for intimation to his accusers calling upon them within the next sixty days to fix a diet for trial. The only limita^ tion of this privilege is in cases of treason, where it can- not be exercised till forty days after commitment (4). The application must be to a judicatory competent to try the offence (5). In a Supreme Court offence, inti- mation to the Lord Advocate must be applied for (6), and it would appear that no intimation to the Lord Advocate is valid, unless made on the precept of that 1 Act 45 Geo. iii. c. 92. — Hume ii. 95, note 3.— Alison ii. 176, 177. 2 Act 45 Geo. iii. e. 92, § 2.— Humo a. 95, note S.— Alison ii. 178. 3 Act 1701 c. 6. 4 Hume ii. 99.— ii. 104.— Alison ii. 184. 5 Hume ii. 100, case of Spittal in note 1. — Alison ii. 185, 186. 6 Jas. Fegen or Brannan, Jan. 29th 1838; Bell's Notes 162.— John Coutts and others, H.C., Oct. 30th 1845 ; 2 Broun 521. PREVENTION OF UNDUE DELAY IN PROSECUTIONS. 303 Court (1). If the commitment has heen by the Supreme Riqht of Court, and at the instance of the Lord Advocate, not of ^rly^rial. a private party, then, how trifling soever the crime, the h commitment application for intimation must be made to that Court (2). ^^^ ^t,^^' ^ ^ ^ . ^ ' preme Court, at But in any other case cognisable by an inferior judge,, instance of it is sufficient to apply to him and to ask for intimation intimation"* ' to the Procurator Fiscal (3). And this shall suffice ^"f^'^'^Pf '^'^ though the Lord Advocate afterwards proceeds to try the Court, case in the Supreme Court (4). But in every case where party™oo^noem- a private party appears by the warrant to be concerned, tion^intSion intimation must be made to him also (5). to i^im ueoes- On a written (6) petition being presented along with eesdlt of the double of the warrant under the prison-keeper's hand, sekv^qimct- the judge must within twenty-four hours of the presen- m=st. tation, give out letters or precept for intimation (7). Intimation having been made, if no libel be served with- On sixty-first in sixty days after, and in addition to, the day of intima- ^Jt^^^,l^aei tion (8), the accused is entitled to liberation, and cannot ™^r demand afterwards be reincarcerated, except under " Last Crim- Question ' inal Letters"* It may be doubted whether the right TpplSrwhere to liberation, if no libel be served within sixtv davs. P*r*y "°* ™ . . •/ J > pnson at time applies to one who was not m prison when he asked for of application, intimation, the Act saying, "in custody in order to trial "(9). But where the accused has obtained intimation, permitting his subsequently being dismissed from prison, cannot P™on6r'o 111. n,?n leave prison preclude him from the benefit of the Act as regards free- after intimation dom from reincarceration except upon Last Criminal exclude opera- tion of Act. 1 Burnett 355, case of EanMn 8 Hume ii. 100, note a ii. 107 there. c.^8e of Mackintosh in note 2. — 2 Hume ii. 105.— Alison ii 186, Alison ii. 187, 188.— John or Alex. 187. Campbell, July 13th 1822; Shaw 3 Hume ii. 105, 106. — ^Alison ii. 74. 187. 9 Hume ii. 104 and case of Ridley 4 Hume ii. 105.— Alison iL 187. in note 2.— Alison ii. 203.— See B Hume ii. 106, and case of Chas. Macdonald, June 18th 1832 ; 4 Cameron there.— Alison ii. 187. Sc. Jur. 521, and 5 Deas and Ander- 6 Hume ii. 104.— Alison ii. 186. son 377, and J. Shaw 381 note, and 7 Hume ii. 99, 100.— Alison ii. Bell's Notes 160. 183. • Vide 306. 304 Bestilt of failure to serve ikdiot- MENT. Pbdcedurb ■where libel SERVED. Charge must be brought to sentence with- in forty days in Supreme Court, orthirty in inferior Court. Bate from which days) computed. Case of prose- cutor fixing diet more than forty days within first sixty days. Where intima- mation made after libel served, prose- cutor, if he go on with that libel, must bring it to sen- tence within 40 days of fiist diet. PREVENTION OP UNDUE DELAY IN PROSECUTIONS. Letters (1). On the other hand, a prisoner who is admitted to bail at his own request cannot claim the benefit of the Act (2). "Where a libel is served within the sixty days, the statute ordains that the prosecutor " shall insist in the " libel," and the judge shall put the same to a trial, and the same shall be determined by a final sentence with- in forty days, if in the Supreme Court, and within thirty days, if before any other judge (3). The days are com- puted not from the date of service, or from the date of the first diet, but from the expiry of the sixty days, so that the accused may not be confined more than one hundred days in all (4). But what shaU. be said if the prosecutor indict the accused to appear at a date which falls more than forty days within the first sixty ? Baron Hume indicates an opinion that in that case, the prose- cutor, if he go to trial, must bring the trial to an end within forty days counting from the first diet (5). But this view is scarcely consistent with the rest of his observations on the Act, which all indicate the intention of it to have been to prevent imprisonment for more than one hundred days in all' (6). In the case of inti- timation under the statute after a libel has been served, it is competent for the prosecutor to raise another within the sixty days (7), but if he elect to go on with the first Hbel, he must bring it to sentence within forty days of 1 Case of Macdouald in previous note. 2 David Balfour, H.C, July 20th 1850 ; John Shaw 377. 3 Hume ii. 106.— Alison ii. 189. i Hume ii. 107.— Alison ii. 189 to 191. — Sir Archibald Alison's ob- servations seem to indicate- that he holds the forty days are to be counted from the execution of the libel, but the authorities which he quotes scarcely support this doctrine, as they all point to the true rule being that the forty days are to be counted from the last of the sixty.^-Jas. Arcus, H.C., June 26th, 1844; 2 Broun 239. 6 Hume ii. 109 and note 1. 6 Jas. Arcus, H.C., June 25th 1844 ; 2 Broun 239, (Lord Justice Clerk Hope's opinion). 7 John or Alex. Campbell, June 8th 1822; Shaw 70. PREVENTION OF UNDUE DELAY IN PROSECUTIONS. 305 the firet diet of compearance (I). If an assize is sworn Pkoceddee to try the charge, and the trial is not brought to sen- served. tence within the forty days, the prisoner is entitled to Where ubei absolvitor, no matter whether the delay was caused by siS' "coured^' the ordinary course of the trial going beyond the time, entitled to ab- 1, ii A i. J 1 • 4. «= o -^ ' solvitor if trial or by the Court delaymg to pass sentence, or the like not finished cause (2). On the other hand, if the libel is brought to witMu the time. trial, but not finally determined, owing to an unavoid- Where trial able accident, such as the death or illness of the judge avSwe^aool- or one of the jury, or illness of the accused, the prose- ^^"ma^stiir' cutor may still insist in that libel at a new diet, pro- ipsist in same vided this be prosecuted to sentence within the forty the 40 days, or days. But if this cannot be done, there seems no rea- fou''and°brini° son to doubt that a new libel in the form of Last Crimi- last criminal nal Letters,* is competent (3.) The question whether the Effect of trial Act applies, so as to prevent a new libel where the prose- breaking down . , , . Ill- through fault cutor proceeds to trial, and owing to some blunder is of prosecutor. compelled to abandon the case, need not be discussed, as the primary objection that the accused has tholed an assizei" is unanswerable (4). On the other hand, where iiithough libel the libel is served within the sixty days the prosecutor CTtor'niay°ai- may allow that libel to fall, and still have the right to ^°^^ prooied'by prosecute by last criminal letters (5). last criminal Before proceeding to the subject of Last Criminal Question Letters, it is necessary to notice a point which appears whether where not yet to have been expressly decided ; viz., whether, found irreie- when the indictment which was served on the accused Ian be^detafned within the sixty days has been found in-elevant, it is tin new letters •' •' ' - prepared. competent for the Court to grant warrant to detain the accused until Criminal Letters have been prepared. In 1 Alison il. 185 Chas. Mao- 3 Hume ii. Ill to 114 passim. — donald, H.O., June 18th 1832 ; 4 Alison ii. 194. So. Jur. 521 and 5 Deasand Ander- 4 Hume ii. Ill, case of Hannay son, 377, and J. Shaw 381 note, in note 1. — Alison ii. 194, 195. and Bell's Notes 160. 5 Hume ii. 112, 113, and cases of 2 Hume ii. 101, case of Anderson Macintosh : and Welsh in note 1. — in note a. — Alison ii. 192, 193. Alison ii. 192. * Vide 306. t Fide 509. 306 PKEVENTION OF UNDUE DELAY IN PROSECUTIONS. Proceduke one case it was declared competent (1), but in a later wHKRELiBKi, ^^^^ ^-^^ Q^^^ decUncd to grant a warrant (2). Baron Hume seems to hold that the words of the statute ex- pressly exclude any such warrant, and says that — " to " warrant a recommitment, the new criminal letters must " have been executed agaiilst the party ; for such is the " positive injunction of the statute" (3). Burnett (4) and Sir Archibald Alison (5) both state as matter of fact that such warrants have been granted in practice. Itis thought that, interpreting the statute with that strictness which it is proper to apply to every enactment which bears upon the question of the liberty of the subject, such a Lastcriminal w-arrant is not legal. Last criminal letters may be Letters may be brought at any time (6), even beyond the hundred days, brought at any -jj^^; Qjjjy jjefore the Supreme Court, and only by criminal time, but must •' '^ _ / \ be before su- letters raised of new (7), which same (8) letters must be and"must"b6 brought to a final sentence within forty days of the recom- ten"^within 40 i^^i^ment ; or if the accused be still in custody, within forty days of recom- days of the scrvicc (9) If the trial be not concluded with- service" where in the forty days, the accused is entitled to be declared " for party m prison. « gyg,. fjgg from all question or process for the foresaid Cause of fail- " Crime Or offence.'' It matters not whether these criminal teTsof no^on- letters are found to have been insufficiently served (10), sequence. qj, q^q thrown out ou the prisoner's objection to relev- ancy, or whether the diet be deserted on the motion of the 1 Sob. Smith and Jas. Wishart, the time for bringing a prosecution H.O., March 23d 1842 ; 1 Broun 134 is limited. and Bell's Notes 161. 7 Hume ii. 102, and case of 2 Michael Hinohy, Perth, Sept. Jackson there, and case of M'Innes 30th 1864 ; 4 Irv. 561 and 37 So. in note 2.— Alison ii. 199, 200. Jur. 24. 8 Hume ii. 102, 103, and cases of 3 Hume ii. 102, Philip : Miller alias Scott : and 4 Burnett 377. Gall there, and case of Sutherland 5 Alison ii. 200, 201. in note a.— Alison ii. 201, 202. 6 Jas. Molyson, Perth, April 9 Hume ii. 115. — Jas. Ander- 18th 1862 ; 4 Irv. 180 and 34 So. son, Nov. 24th 1823 ; Shaw 112. Jur. 468. — This rule of course does 10 John Cameron, H.O., Jan. 31st not apply where by special statute 1850 ; J. Shaw 295. PREVENTION OF UNDUE DELAY IN PROSECUTIONS. 807 prosecutor, no other libel can be brought against the ac- Lastcmminal cused for that offence (1). i^^^E^ In the case of Last Criminal Letters, if the accused Limitation of is allowed to remain at large on his being served there- appUcabie to°' ■with the limitation of the forty days does not apply (2). accused aiiow- in rr J \ / ed to remain at JBut according to the analogy of one case, if the ac- large, cused be once incarcerated, his being subsequently al- lowed to leave prison will not protect the prosecutor from the running of the forty days from the date of re- commitment (3). Delays at the prisoner's desire are not counted in com- Delays at puting the time specified by the Act, either as regards an fssTANCE^ox indictment served within the sixty days, or as regards coMPansD. LastCriminalLetters. Butthis does not mean ordinaryde- But the delay lays, such as the Court adjourningto consider the accused's accusel'e'spe- objections, or the like. The delay must be specially at a'nd th'"^^-'' his request, and it would seem that the request should quest must be be recorded, if it is to be founded on (4). Applications for liberation should be accompanied by application the letters of intimation and execution thereof, and the tion. iudge, on his beina; satisfied of the facts, must within 24 Liberation 1 ■ T n 1-, • /-^ rr,i ■. . inust be graut- nours give precept or letters for liberation (o). The appli- ed -within 24 cation is appointed to be to any of the Commissioners of ^^^' Justiciary or judge competent respective. Thus a Sheriff, tion to bemads if the intimation was issued under his precept, may give the order, even though the process have been going on in the Supreme Court (6). But if the precept for intimation 1 Hume ii. 101 and case of An- BelVs Notes 162. — Thos. Hunter derson in note a. — ii. 103, case of and others, H.O., Jan. 3d to llth Gall there.— Alison ii. 203, 204. 1838 ; 2 Swin. 1, note p. 7.— Alex. 2 Hume ii. 104 andcase of Bidley Humiihreya or Alexander, H.C., in note 2.— Alison ii. 203. April 3d 1839 ; Swinton's Special 3 Alison ii. 185. — Chas. Mac- Eeport, p. 46 and Bell's Notes,' 162. donald, H.C., June 18th 1832; 4 — Jas. Gumming and others. So. Jur. 521 and 5 DeasandAnder- H.C., No?. 7th 1848; J. Shaw son 377 and J. Shaw 381 note, and 17 (see minute, p. 34). Bell's Notes 160. 6 Hume ii. 100.— Alison ii. 198. 4 Hume ii. 109 and case of BeU 6 Hume ii. 115. — Alison ii. 197, there.— Alison ii. 189.— ii. 204.— 198. Will. Lawson, Nov. 19th 1832; 308 Application fob libera- TION. Person accused •under treason- felony Act entitled to benefit of Act 1701, c. 6, •without inti- mation, and though admit- ted to bail. PRESCRIPTION OF CRIMES. issued from the Supreme Court, the liberation must also be applied for there (1). It is necessary to notice in conclusion, that by the Treason-Felouy Act (2), the law as to liberation in treason- felony cases is exceptionally favourable to the accused, for it is enacted that the trial of persons committed for offences under the Act, " whether liberated on bail or not, " shall in all cases be proceeded with and brought to a " conclusion, under the like certification and conditions " as if intimation to fix a diet for trial had been made " to the public prosecutor in terms of" the Act 1701, c. 6. PEESCEIPTION OF CEIMES. At common LAW. No fixed rule of law. Indictment dismissed •when thirty years elapsed. Hume thinks twenty years the limit. No prescrip- tion when accused absconds and is f ugitated. Statutoet pkesckiption. Where the time within which it shall be competent to prosecute for an offence is not specially fixed by statute, there is no distinct rule of law precluding a prosecution at any time. But in one case, where the prosecution was not instituted till more than thirty years after the alleged offence, although the accused was all the time within the kingdom, the Court dismissed the indictment (3). Baron Hume thinks that twenty years should be sufficient to bar prosecution in such circumstances (4). It would of course be otherwise if the delay was caused by the accused absconding (5); but in order to keep up his right to pursue, the prose- cutor should demand sentence of fugitation (6). In many instances, where an offence is created by statute, the time within which the prosecution must be 1 Hume ii. 115. 2 Act 11 Vict, c. 12, § 9. 3 Hume ii. 136, 137, and case of M'Gregor there. i Hume ii. 136.— Alison ii. 97. 6 Hume ii. 136.— -Alison ii. 97. 6 The judgment in the case of M'Gregor (Hume ii. 137) bore ex- pressly to proceed on there being nothing to shew "that any sentence " of fugitation passed against him." —More ii. 433. PROSECUTORS AND THEIR TITLE. 309 instituted is expressly limited. Thus, for example, Statbtokt prosecutions must be instituted under the Eiot Act '- within twelve months (1) ; under the Coining Act Avithin six months (2) ; and under the Night Poaching Act within six months in summary cases, and within twelve months in Supreme Court cases (3). As regards Question what the question what shall be held to constitute the com- oommenoe- mencement of a prosecution, there is only one decision ^^^^ °^ prose- which throws any light upon the matter. The case was one under the Night Poaching Statute, and it was held to be a sufficient commencement of the prosecution that the accused had been committed to prison at the in- stance of the public prosecutor, and liberated on bail (4). In the case of persons apprehended in the colonies Where party for offences committed in this country, power is given colony, enti- to the Secretary of State to send the person back to the baci'if''^t™' colony in which he was apprehended, at his own indicted^ request, if he is not indicted within six months after his mouths!'^ arrival at the place where the crime is alleged to have been committed (5). PKOSECUTORS AND THEIE TITLE.] At common law the right to prosecute offenders is Eight to limited to those officials who have authority to prose- ^''°™°°™- cute for the public interest, and to those persons who are specially wronged by the offence committed (6). The subject of private prosecution does not require at peivatb the present day to be commented upon at length, as i"Ko™cuTioif. 1 Act 1 Geo. I. 0. 5, § 8. March Uth 1845 ; 2 Broun 2 Act 24 and 25 Vict. o. 99, § 33. 416. 3 Act 9 Geo. IV. o. 69, § 4. ' 5 Act 6 and 7 Vict. o. 34, § 7. 4 John M'Nab and others, H.O., 6 Hume ii. 119.— Alison ii. 99. 310 PEOSECUTORS AND THEIR TITLE. Private PKOSECnTION. Outlaw alone precluded from prosecuting. Prosecution by corporation or firm. Injured party may prosecute. Question of circumstances ■where injury not direct private prosecution, except in the most trifling summary complaints, is now wholly unknown in practice. No pne is held disqualified to prosecute in respect of personal disability, except an outlaw (1). A corporate body or company cannot prosecute as such (2) ; the prosecution must be at the instance of the individual partners. Power is sometimes conferred by statute to prosecute by deputy ; as for example, in the case of prosecutions by the General Prison Board (3), and of prosecutions against workmen for desertion of service (4). The person who is injured is entitled to prosecute in every case, and whatever be the offence (5). Where the injury is not direct, it depends upon circumstances whether there is a right to prosecute. For example, the patron of a parish may prosecute those who have vio- lently resisted an induction, but the heritors and parish- ioners cannot prosecute (6). Againi, any person to whose prejudice false evidence has been suborned or emitted, or who has been compelled to pay money in implement of a decree pronounced in consequence of another's false-swearing, is entitled to prosecute (7) ; but it is doubtful whether a private party can prosecute for an attempt to suborn evidence against him (8). It has been held in cases of false-swearing in taking the oath of trust and possession at elections, that, besides 1 Hume ii. 125.— Alison ii. 106. —More ii. 432. 2 Hume ii. 119, case of the Een- frewshire Banking Company v. Mackellar in note 1. — Alison ii. 106. — ^Aitken v. Eennie, Dec. 11th 1810 ; F. 0., vol. 16, p. 78. 3 Act 2 and 3 Vict. c. 42, § 4. 4 Act 4 Geo. IV. c. 34, § 1. 6 Hume ii. 121, 122.— Alison ii. 103. 6 Hume ii. 119, 120, and case of Gillies and others there. — Alison ii. 100.- More ii. 431, 432. 7 Hume i, 379, and case of Law- son there. — ii. 119, and case of Somerville in note 2 ii. 121, case of Isaacson and others in note 2. — Alison i. 483. 8 Hume ii. 121, case of Jardine there. — ii. 122, cases of Hay : Mao- dcnnell : and Hog and Soutar there. — ^Baron Hume incline^ to hold the private prosecution competent. PEOSECUTOES AND THEIR TITLE. 3II the injured candidate, whose interest is undoubted, Private every elector has a title to prosecute (1). In cases of ''°°™'^""°''' deforcement, besides the messenger himself, the Lord Lyon and the person who employed the messenger may competently prosecute (2). But a master cannot prose- cute for personal injury inflicted on his servant (3). Further, a merely prospective interest can confer no prospective title to prosecute. "Where a Police Act declared that interest confers "^ no right to dung allowed to accumulate for a certain time should proseoate. be liable to forfeiture, it was held that a person who had taken a lease of dung from the Police Commis- sioners, including " what may become vested in them " by forfeiture," had no right to prosecute for an offence of accumulating dung (4). A trustee on a sequestrated estate has no interest at Bankrupt trus- common law to prosecute for fraudulent bankruptcy (5), terest except nor for forgery committed in making a claim (6), nor for ^^ statute. false swearing committed in the proceedings in the sequestration ; but the right to prosecute, in the cases of fraud and false swearing, is conferred by statute, it being necessary, as regards the case of false swearing, that the trustee be authorised to prosecute by a majority of the creditors (7). In cases of fraudulent bankruptcy. Creditors in the right to prosecute is extended to any creditor of the bankruptcy. bankrupt whose claim has been ranked (8). Many Some statutes statutes, and particularly the statutes for the protection ^"any^pCTson. of fish and game, give the power of prosecuting for con- traventions to any person (9). In cases of profanity 1 Hume i. 379, ease of Fife there. 6 Hume ii. 119, case of Belch in — ii. 120, 121.— Alison ii. 102. note 1. 2 Hume i. 399, and case of Du- 7 Acts 7 and 8 Geo. IV. u. 20, guid there.— Alison i. 608. § 2, and 19 and 20 Vict. u. 79, 3 Wingate v. Brown, Feb. 17th § 178. 1809 i F. C, vol, 15, p. 194 8 Act 7 and 8 Geo. IV. c. 20, 4 Mitchell v. Scott and Mackay, § 2. H.C., June 24th 1847 ; Ark. 315. 9 For example, 9 Geo. IV. c. 39, 5 Aitken v. Eeunie, Deo. 11th § 9 (salmon), and 25 and 26 Vict. 1810, F. 0, voL 16, p. 78. «. 97, § 28 (salmon).— 13 Geo. III. 312 PR0SECUT0E8 AND THEIR TITLE. Private prosecution. Eight of rela- tives to prose- cute. Limited to atrocious crimes, murder, rape, &c. Violation of sepulchres. Although woman does not prosecute for rape, rela- tives may. Degree of relationship which confers right. If prosecutor Eufficientlj near in degree, fact that there are others nearer of no consequence. Bastard rela- tions cannot prosecute. Prosecutor must prove relationship if disputed. any person may prosecute (1). The question has been raised, but not decided, -whether private prosecution is competent under the Night Poaching Statute (2). The right of relatives of the injured party to prosecute is limited to the case of atrocious crimes, such as murder and rape, or attempt to raivish (3). It also includes the case of violation of sepulchres, where the relatives of the person whose grave is violated have an interest to pro- secute the offender (4). In cases of rape, it is not a good objection to the title of a husband or other near relative to prosecute, that the woman declines to be a party to the prosecution (5). The question, what degree of relationship shall entitle to prosecute, is not very clearly settled. Undoubtedly, all within the forbidden degrees of marriage may com- petently prosecute (6), but it would appear that in one case the title even of a cousin-german was sustained (7). Several relatives may prosecute together (8). It is not a good objection to the title of a relative to prose- cute, that the injured person has nearer relatives who do not join in the prosecution (9). Illegitimate relatives have no interest to prosecute (10). The person who claims to prosecute as a relative is bound, if his title be challenged, to prove his relationship (11). Besides the interest of relatives, Baron Hume inclines c. 54, § 8 (game). — See Brown and Phillips V. Hunter, H.C., Dec. 10th 1842 i 1 Broun 458 — Tough v. Jopp, Aberdeen, April 28th 1863 ; 4 Irv. 366 and 35 Sc. Jur. 472. 1 Hume i. 674. 2 Giaham v. Duke of Buccleuoh andCrerar, H.C., Jan. 29th 1844; 2 Broun 85. — Herbert v. Duke of Roxburgh, H.C., Deo. 26th 1855 j 2 Irv. 346 and 28 So. Jur. 130. 3 Hume ii. 118, 119.— ii. 122, 123, and cases of Cbeyne and Bowman: Carnegie: and Charteris there. — Alison ii. 104. 4 Hume ii, 121, and cases of Begg in note 1, and Samuel in note 2. 5 Act 1612, c. 4.— Hume i. 307.— ii. 123, case of Cheyne and Bow- man there. 6 Hume ii. 124. — Alison ii. 105. 7 Hume ii. 124, case of Gillespie there. 8 Hume ii. 124, case of Carnegie there. 9 Hume ii. 124. 10 Hume ii. 124.— Alison ii. 105. 11 Hume ii. 125, case of Young there. PROSECUTORS AND THETR TITLE. 3| 3 to be of opinion that a tutor or guardian has a right to Pkivatb prosecute for rape or abduction of his ward (1) In all cases where the right to prosecute is not tutor!"" '"" ^ specially conferred upon individuals by statute (2) pri- Except in sta- vate prosecution requires the concourse of the public concourse of prosecutor (3), which can only be withheld on cause ^ut'or''es''se°ntlIi. shown (4), and which the Courts of law will ordain him Maybe to give, if they consider his ground of declinature to be g?™uTcon- ° insufficient (5). Even where there are cross prosecutions ™"™- by the same parties, the public prosecutor must give his botii parties in concourse to both (6). ti'ons.'""'""'" Private prosecutors must find caution to insist in the Private prose- charge (7), and may be found liable in expenses in the cautiWo'^in- discretion of the Court if they fail in their prosecu- sist,andmay tion (8). They may even, if the Court see cause, be expenses and ordained to pay a sum in name of damages to the ac- fndmay be cused (9). The accused is entitled when sued by a private required to malte oRth of prosecutor to call upon him to take an oath of calumny calumny, as a condition of his proceeding with the prosecution (10). A private prosecutor may disclaim a process which he private prose- has raised, and if he does so in sufficiently broad terms, ?"'°'' "J's"'^""- ' •' ' mg process. 1 Hume i. 307. — ii. 123, and case ling and others there. of Kerr there. 7 Hume ii. 127, referring to sta- 2 See Blackwood v. Finnie, H.C., tutes 1535, o. 35 — 1579, o. 78— and June 1st 1844; 2 Broun 2U6.— Eaper 1593, c. 170.— Alison ii. 113.- More or Eeaper v. Duff, H.C., Feb. 6th ii. 432. 1860 ; 3 Irv. 529 and 32 Sc. Jur. 478 8 Hume Ii. 127, case of Macul- (Lord Justice Clerk Inglis' opin- loch and M'Caudlish there. — ii. 128 ion). — Tough v. Jopp, Aberdeen, and oases of FuUarton: and Lid- April 28th 1863 ; 4 Irv. 366 and dell and Jeeves there. — Alison ii. 35 Sc. Jur. 472. 113.— More ii. 432.— Will. M. Borth- 3 Hume ii. 125.— Alison ii. 111.— wiok,H.C., June 17th 1822 ; Shaw 71. More ii. 432. — M'Kelvie v. Barr, 9 Hume ii. 128, and cases of Os- H.C., Deo. 3d 1860 ; 3 Irv. 631 and wald : Brown : and Houston and 33 Sc. Jur. 48. Brisbane there. — Alison ii. 114. — i Hume ii. 126.— Alison ii. 111.— More ii. 432. More ii. 432. 10 Hume ii. 128, 129, and cases of 5 Hume ii. 126, 127. — Alison ii. Crawford and others : Watson and 112. — More ii. 432. others: Lawson: and Hume there. 6 Hume ii. 127, and case of Stir- — ^Alison ii. 114, 115.— More ii. 432. 314. PROSECUTORS AND THEIR TITLE. PCBLIC PKO- SEOUTOE. Lord Advocate. Lord Advocate may take up predecessor's libels. Procurator- fiscal. Public prose- cutor does not find caution or make oath of calumny. Lord Advocate not liable in expenses. Fis- cals may be. Public prose- cutor cannot be compelled to prosecute. he may thereby be excluded from the right to prosecute for the future (1). The Lord Advocate is the principal public prosecutor in Scotland, and can prosecute in any court (2). He is the only competent public prosecutor in the Supreme Court, the Solicitor-General and the Advocates-Depute being his deputies (3). Whoever succeeds to the office of Lord Advocate may take up and prosecute libels already raised by his predecessor, without being obliged to have new libels served in his own name (4). In inferior courts the public prosecutor is denominated Procurator-iiscal. No public prosecutor can be required to find caution or to take an oath of calumny, but it is only the Lord Advocate who is free from liability for expenses or for pecuniary penalties at the instance of a person who has been accused of crime without a convic- tion being obtained (.5). Procurators-fiscal may be found liable in expenses (6). The public prosecutor cannot be compelled to prose- cute in any case (7).* On the other hand, no private prosecutor or other person can, by any process, prevent the public prosecutor from proceeding against an offen- der for the public interest (8). 1 Hume 11. 129, 130, and cases of Graham: and Smith and Christie there. — Alison ii. 116. 2 Alison ii. 86. 3 Hume ii. 130 to 132 passim. — Alison ii. 84 to 87 passim.- — Mora ii. 432. 4 Burnett 314, case of Myndhara there, and in Appendix No. 16. — Alison ii. 96. As regards the ques- tion whether a Procurator-Fiscal can take up libels instituted by his predecessor, see the opinions of the Court, M'Lean v. Cameron, H.C., Dec. 1st 1845 ; 2 Broun 657. 5 Hume ii. 134, and note 1. — Alison ii. 92 More ii. 432. 6 Hume ii. 134, oases of Gle- phane : Guthrie and others : M'- Alister and Malcolm : and Coats in note 1 — Alison ii. 93. 7 Alison ii. 87, 88.— John Gordon, Petitioner, H.C., June 1766 ; Mac- laurin 258. 8 Hume ii. 132, 133, and cases of Mowat: Bald: Somerville: Smith: Young: Gordon: Beaver: and Smith there Alison ii. 85. • The powers and privileges of prosecutors in regard to restriction of ihe libel, &c., will be noticed later. Vide 574, 675. 315 INVESTIGATIONS PRELIMINAEY TO TRIAL. In investigating the case preparatory to indicting the Pkecognition accused, the magistrate who conducts the investiga- Magistrate has tion has power to cite witnesses. If they refuse, or per^itnesTe?' contumaciously fail to attend, letters of second diligence *» ^ examined , ,,__ and to put may be used, that they may be apprehended. He may them on oath. commit them to prison if they refuse to speak, and put them upon oath if he see fit (1). In these preliminary Magistrate investigations, he should proceed by the ordinary rules should proceed o ' r J J ^ according to of evidence, both as regards the competency of examin- ordinary rules -...-, ■, , .-, . , -r-N Tj_i of evidence. ing any individual {e.g. the prisoner s wife) and the pro- priety of the questions put (2). These investigations Precognition are conducted privately. "Witnesses should not be proceeding, examined in the presence of other witnesses (3). Where writings or other articles are to be used at the Diligence to trial, the party who proposes to do so, whether he be articles. public prosecutor (4), private prosecutor (5), or accused J^ moselSo^'^ (6), may obtain a diligence to recover them by peti- and accused. tion to the Court. And this may be done either before before and or after the service of an indictment on the accused (7). ofuber""* Where it is necessary to search for stolen goods and Seakch the like, authority to do so is usually craved in the Sty to^euiier application for warrant to arrest, but a special search conjoined with 1 lie 1 r X L wanant to warrant may be asked tor subsequently (8). A search arrest or be warrant should specify the goods or articles to be seized, ''"'''■ 1 Hume ii. 82. — Alison ii. 137, 138. 6 Hume ii. 402, case of Mackenzie 2 Alison ii. 138, 139. and others in note 3. — Alison ii. 3 Hume ii. 82.— Alison ii. 141. 622, 623.— Geo. Cameron, March 4 Hume ii. 393, and case of 13th and April 2d 1832 ; Bell's Lawson and Leslie there. Notes 285. 5 Rob. Wilson, Jan. 23d 1834 ; 7 Hume ii. 393. Bell's Notes 278. 8 Alison ii. 145, 146. 316 INVESTIGATIONS PRELIMINARY TO TRIAL. Search warkants. Search war- rant should be fipeciiic. Warrant to break open all places illegal. Warrants to Bearcli for private papers must be speci- ally guarded. Eules as to execution of •warrant to arrest appli- cable to search warrant. Labellikg articles. Labels or documents signed by and the places to be searched. A general warrant to " break or force open all shut and lockfast places " is illegal (1). And where the proposed search relates to private documents, the granting of search warrants must be specially guarded. Thus, where a Sheriff granted a warrant to search the repositories of a person who had never been criminally charged with the offence under investigation, for certain written documents, " and all " other articles tending to establish guilt or participation " of said crimes," without the application being limited even to such articles as would tend to establish guilt against the person whose repositories were to be searched, the warrant was suspended as illegal (2). In executing a search warrant, officers must proceed generally on the rules already explained in reference to warrants to arrest (3). All articles connected with an alleged criminal offence, except documents, are in practice labelled when- ever they are taken possession of by the authorities, the labels being attached to the article by cords sealed to the labels, and all persons to whom they are shown in the preliminary investigations are called on to sign them, that they may the more readily identify them at the trial (4). In the case of documents it is usual to have the signatures placed upon the documents themselves. But though these precautions are matter of daily prac- tice, they are not indispensable, nor are the statements written on labels or articles held as binding upon the prosecutor in his proof (5). 1 Hume ii. 78. — Alison ii. 147 — Webster v. Bethune, H.C., Feb. 7th 1857 ; 2 Irv. 596 and 29 So. Jur. 185. 2 Bell V. Black and Morrison, H.O., Jan. 30th 1865; 5 Irv. 57 and 37 So. Jur. 247. 3 Hume ii. 80.— Alison U. 146, 147. 4 Hume ii. 83. 5 See Joseph Allan or Mulhol- land, Glasgow, May 6th 1844; 2 Broun 172. To save repetition it may be mentioned here that a good many points in reference to the mode of preparation for trial will be noticed under the head of Evi- dence, to which they are more im- mediately related. 317 INDICTMENT. Where the prosecutor proposes to try the accused Form op before a jury, a written accusation must be served upon him. It may be in the form of an indictment, or of indictment criminal letters. By custom, prosecution by indictment ktter™"'* is the privilege of the Lord Advocate, but a private pro- Prosecution by secutor may have his name associated with that of the only competent Lord Advocate in an indictment as joint prosecutor (1). y^^^f ^^' Other prosecutions are in the form of criminal letters, a form which the Lord Advocate may also use. An indictment commences thus : — "John Brown, now commenoe- " or lately prisoner in the prison of Glasgow, you are in- ™ent of indiot- " dieted and accused at the instance of George Patton, "Esquire, Her Majesty's Advocate for Her Majesty's " interest : That," — &c. Criminal letters are drawn in Commenoe- the form of a summons, and run in the name of the naTiettlrs'S^" Sovereign in the Supreme Court: — "Whereas it is the Supreme "humbly meant and complained to us by our right " trusty George Patton, Esquire, our Advocate for our " interest, upon John Brown, now or lately prisoner in " the prison of Glasgow : That," — &c. In the Sheriff- in the Sheriff Court, the letters run in the name of the judge : — °^^ ' " Whereas it is humbly meant and complained to us by "Maurice Lothian, Procurator-Fiscal of Court for the " public interest, upon," — &c. In both forms of accusa- X Hume ii. 155, and case of Stone there. — Alison ii. 217. 318 INDICTMENT. DE3IGNINO OP tion up to this point, there are two things to be attended ISd^bose-" to —first, the designing of the accused ; and, second, the °"™''- instance. b^D^^rf tr™"°' I. The accused must he properly named and designed, named and SO that it may Certainly appear for whom the charge is designed. meant. James Stobie and William Berry were dis- missed from the bar, having been indicted as William Scobie and Alexander Berry. As was Alison Duncan, Good otjeotion 'who was indicted as " Elizabeth or Ally Duncan." where name Wherever the name given is truly a different name truly different. ° ■' . according to common apprehension, as where Law is changed to Low, the objection that the name is in- correct will be fatal (1). In one case it was also held a good objection that the proper surname of the accused was not given, but an occasional nickname (2). But it But incorrect is not a fatal objection that the spelling is slightly wrong, conseque'nce,°if if the name be substantially the same, as Darymple for tiaUy thetme. ^alrymple, Eae for Eay, or the like (3). Even Elspeth has been held no misnomer for Elizabeth (4). It is true that one Cain was held not properly indicted by the name Kane. But probably the ground of this de- cision was the very great difference of spelling, and the fact that the prosecutor knew that the accused spelled his name Cain, the libel setting forth that he had been previously convicted of theft under the name of Cain, which was his true name (5). On the other hand, if the Case of accused prisoner assume false names when in custody, or at his narnS!"^ ^''^^^ examination, or in finding bail, he will not be after- wards permitted to maintain that his true name is different (6). Where a person is known by, or gives different names, 1 Hume ii. 157, 158, and cases of son there, and case of Begg in note Stobie and Berry : and Duncan 1. — Alison ii. 222. there. — Alison ii. 221, 222. 5 Hume ii. 157, note a. — Alison 2 Hume ii. 158, case of Kennedy ii. 221, 222. — Will. Kane, Glasgow, there. Sept. 24th 1823 ; Shaw 106. 3 Hume ii. 158. — Alison ii. 222. 6 Hume ii. 161, and cases of 4 Hume ii. 159, ca.se of Eobert- Brown : Eobertsou or Wilson : INDICTMENT. 319 TUB ACCUSED AND PKOSE- CUTOR. it is customary to put them all into the libel, coupling Designing of them with an " alias," although, of course, the prose- cutor cannot be called on to give all the names by which a person has passed (1). From one or two cases men- known b^™"" tioned by Baron Hume (2), it might appear that there is different a good objection if a name be given by which the pri- Question soner has never passed, even though other names be wiieretrue 1 • 1 1 1 1 -I-. 1 name given, given by -which he has passed. But the cases as quoted and others by no means amount to a distinct authority upon the fiouBed^iiasnot point, and there certainly seems to be no principle for passed, holding that if the prosecutor has indicted the accused under a name which he admits to be correct, the mere fact that he has added another name as an alterna- tive, and that he appears to have been mistaken in sup- posing that the accused had passed by that name, is to exclude him from proceeding to have the accused tried under the name which he admits to be correct. The mistake is only in an alternative, and does not affect the fact that the accused is well indicted by the name which is not disputed. But, whatever may be the decision upon this question when it shall truly present itself, it is quite settled that where an alias is given merely to prevent doubt as to the pronunciation of one name, as Braid alias Baird, the objection that the accused has never passed by one of them will not be sustained (3). Toung or Thompson or Marshall: in an inferior court under a wrong and Sharp there. — Alison ii. 225, name, and when sentenced and 226.— Alex. Adam, Perth, April sent to prison, then for the first 21st 1825 ; Shaw 136.— John fin- time announce that his true name layaon and others, H.C., January is different. See Steven and others 10th 1844 ; 2 Broun 17.— Alex. J. P. v. Morrison, H.C., Dec. 5th 1853 ; 1 Menzies, H.O., Feb. 6th 1849 ; J. Irv. 312. Shaw 153, (Lord Justice Clerk 1 Hume ii. 162. —Alison ii. 226. Hope's charge). — Jauo Watson, 2 Humo ii. 167, and case of Bryce H.C., Jan. 17th 1859 ; 3 Irv. 815.— alias Wight there, and case of Mur- John Burnside and Hannah San- ray in note a.— Alison ii. 222, derson or Burnside, Jedburgh, Sept. 223. 8th 1863 ; 4 Irv. 440. On the same 3 Hume ii. 157, note a. — Alison principle, a person will not be heard ii. 223.— John Braid alias Baird, in a suspension, if he submit to trial H.O., Feb. 24th 1823 ; Shaw 98. 320 INDICTMENT. Designing of the accused and prose- CUTOK. Mode of nam- ing married women. Designation of accused. Where parish or trade wrong. Uncertain designation. A married woman should be indicted by her hus- band's name, but there is no objection to the addition of her maiden name — " Jane Johnston or Burn " (1). And a married woman may be sufficiently indicted by her maiden name, if she continue to be called by it, and be known at the place where she lives by no other name (2). If the accused be described as residing in one parish or county, when he truly dwells in another, or as of one trade when he follows another, the libel is bad (3). Where a prisoner was designed " shopkeeper in Maryburgh, in " the parish of Dingwall, and couuty of Eoss," it was objected that Maryburgh was in the parish of Fodderty. The fact was that Maryburgh, including the panel's shop, was in Fodderty, but that one or two houses in Maryburgh were in Dingwall parish, and one of these houses was the dwelling-house of the accused, and accordingly the objection was repelled (4). Where the accused was designed "nephew to Thomas Fraser of " Gartmore," this was held insufficient, as he had other nephews of the same name (-5). But where two pri- soners were designed " tenants in New Ullva," and they objected that they were not tenants, but only resided with their father, who was the tenant, the objection was repelled as too critical (6). "Present prisoner in the prison of E ," is a 1 Alison ii. 225, case of Wood and FergusBon there. — Mai-y Loch- rie, Glasgow, Deo. 1833 ; Bell's Notes 169. 2 Agnes Ogilvie, H.C., JulylSth 1842; 1 Broun 376 and Bell's Notes 169. 3 Hume ii. 158, and case of Wat- son and others there. — Alison ii. 221, 223, 224.— Will. Brown, Ayr, April 14th 1823 ; Shaw 109. 4 Donald Stewart and others, Inverness, Sept. 14th 1837; 1 Swin. 640 and Bell's Notes 170. 6 Hume ii. 160, case of Fraser there. 6 Duncan Galbraith and others, Inverary, Sept. 10th 1821; Shaw 64. — Such a designation would probably not be sustained now in the sam e circum stances Sir Archi- bald Alison eiToneously quotes this case under the subject of designa- tion of witnesses. — Alison ii. 415. IKDICTMBNT. 321 sufficient designation (1), provided the accused be in Designing of the jail named at the time of the libel being served (2). ™ pkose-" But where the accused was so designed, the objection <^"™"- was sustained that he had only been about half-an-hour Prisoner in the in the prison upwards of six months before (3). This a good desig- might not have been held fatal had the libel borne ^'^owot lately "now or lately prisoner in the prison of E ," in prison &c. (4). °* • After many conflicting decisions (5), it has now been Prisoner in finally decided that it is not a good objection to the Sgnation"'^ designation of a prisoner iadicted as " now or lately though mors " prisoner in the prison of E " that there is an- that name in other prisoner of the same name in the jail at the '''^P"™"- same time, even though both are indicted in similar terms (6). "Where the prisoner gives a false designation on if prisoner ■ his apprehension, or in his declaration, or in taking out |^gf™tiou he a bail-bond, he wiU not be heard to object to a libel cannot object which describes him as he designed himseK (7). II. The person at whose instance the prosecution is Material error instituted must be set forth by name and designation, JatSf'™°® . and any material error, such as leaving out the surname of the prosecutor, wiU be fatal (8). But where Sir William Eae was described as of Catherines, instead 1 Hume ii. 159, 160, and oases of Dumfries, Sept. 15th 1827 ; Shaw Macintosh: Scott: Van-ni-Frank : 212. — John Wilson and others, Johnston and others: M'Alister: H.C, May 23d 1831; Bell's Notes Smith or Gunn : Wilson or Low or 170. — Thos. Robertson, Glasgow, Telfer : and Taylor there.— Alison Sept. 29th 1837 ; 1 Swin. 547 and ii. 224. Bell's Notes 170.— The objection 2 John Eidd, Stirling, 1837; was repelled in John O'Neill, H.O., Bell's Notes 170. June 2d 1851 ; J. Shaw 483. 3 Hume ii. 157, note a. — Alison 6 Mary Maclean, H.O., Deo. 7th ii. 223, 224.— Will. Affleck, Ayr, 1863 ; 4 Irv. 449 and 36 So. Jur. April 14th 1823 ; Shaw 108. 111. 4 EuphemiaEobertson and others, 7 Hume ii. 161, and case of Perth, April 22d 1842; 1 Bronn Pithie and Sharp there.- Alison 295 and Bell's Notes 262. ii. 225, 226. ' 6 The objection was held good 8 Hume ii. 164, case of Anderson in John Eobertson, Glasgow, April in note 1. — Alison ii. 227. 1824 ; Shaw 123.— John Oarruthers, 322 Designing of THE ACCnSED AND PKOSE- CCTOR. Private instance must indicate the interest to prosecute. Question ■whether the interest to pro- secute must necessarily be stated at out- set. Terms setting forth instance must be unam- biguous. Major pro- position. Consists of averment that by law a cer- tain act is a crime. Preamble. INDICTMENT. of St. Catherine's, the ohjection that this was fatal to the instance was repelled (1). Where the instance is that of a private individual, it must appear from the libel wherein his interest to pro- secute consists ; as for example, by his being designed as the father of the person alleged to be murdered, or the person to whose prejudice an alleged act of perjury was committed (2). It may not, however, be necessary that this should be set forth at the outset of the libel, where the prosecutor is named, provided it be suffi- ciently detailed in the subsequent narrative. The terms in which the instance is set forth must be unambiguous. Where the instance of criminal letters ran, "Whereas it is meant and shewn us our," leaving out the word " by " between the words " us " and " our," the objection that this made the indictment unintelli- gible was sustained (3). The objection was certainly critical, and serves to show how great is the importance attached to every word of this part of the libel. After naming the accused and the prosecutor the indictment proceeds in the major proposition to state the nature of the crime. The things essential to be stated in the major proposition are : — First, that bylaw : — second, a certain act : — third, is a crime. The absence of any of these three branches will be fatal (4). Where the charge is one at common law the major proposition commences — " that wheeeas," or " that albeit by the " laws of this and every other well governed realm." In 1 Hume ii. 246, case of Mack- intosh in note *. — Alison ii. 314. — This case, and the one in the pre- vious reference, were cases of dis- crepancy between the record and the accused's copy. But if the omission had been in the record copy the effect would have been the same. 2 Hume i. 380, and case of Les- lie there. — Alison ii. 102. — Herbert V. Duke of Eoxburgh, H.C., Dec. 26th 1855 ; 2 Irv. 346 and 28 Sc. Jur. 130. 3 Will. Criohton, Ayr, May 4th 1821 ; Shaw 62. 4 Hume ii. 156 and cases of Gall: and Steven there, and caseof Meth- ven or Wallace in note 1. INDICTMENT. 323 the expression " common law," are included those Major pko- offences which were created or declared to be crimes by POSITION. General form the ancient statutes of Scotland, so that under this inoSsaU general preamble the prosecutor may at the trial cite crimes created and appeal to those statutes, which, in course of time, statutes. have become the customary and well known law of the land (1). The mode of referring in the major proposition to more modern or special statutes, will be noticed later. After the words " whereas, by the laws of this and statement of " every other well governed realm," follows the statement '^® °"'"®" of the crime : — " Theft is a crime of a heinous nature, " and severely punishable." If the name used to describe Name used the crime be unambiguous and well understood, as ^biguous!' Murder, Theft, Assault, then no further description is necessary in the Major Proposition. But if a nomen juris be used it must be specific and unambiguous (2). Thus, "writing and sending threatening letters," was held a bad charge, as not implying anything necessarily illegal (3). And the Court are justly jealous of the introduction of any novel nomen juris (4). It is not incompetent to Name may be use a nomen juris and add a more elaborate description, deteUe'd de^'"^ and in practice this is generally done by a clause be- ecription. ginning—" more particularly " (5). On the other hand. Crime may be no nomen juris need be used at all, and the crime may out usin^Ii*' be described at large, (6) thus : — " Opening and keeping express name, " a common gaming house, for the playing of games of " chance for money for the profit of the keepers, and " where games of chance are commonly and publicly " played for money " (7). Where there is a doubt which 1 Hume ii. 164, 165 and cases of 310. Hunter: Beaver: Watsonandothers: 5 Hume ii. 169. — Alison ii. 230, and Pinkerton and others there. — 231. — Will. Buchan and Alex. Alison ii. 228. M'Intyre, Dec. 7th 1829; Bell's 2 Hume ii. 169. Notes 177. 3 Jas. Miller, H.O., Nov. 24th 6 Hume ii. 168, 169.— Alison ii. 1862 ; 4 Irv. 238 and 35 So. Jur. 52. 230. 4 Walter D. Ure, H.O., Feb. 16th 7 Bernard Greenhuff and others, 1858; 3 Irv. 10 and 30 So. Jur. H.C., Deo. 19th 1838 ; 2 Swin. 236. 324 INDICTMENT. Major pko- position. Alternative charge. Alternative names forsame offence. Case where several names describe one crime. Too lavish use of alternatives not permitted. Where crime created by special statute, the act must be quoted. of two or more crimes is the one the evidence will sub- stantiate, the prosecutor may combine them in the major, thus : — " THEFT, as also eeset of theft are crimes," &c., this being followed up, as will afterwards be shewn, by an alternative charge, that the accused is guilty of one or other of them (1). It is also competent to libel two different descriptions of the same offence, coupled by the word "or," for the purpose of covering different aspects of the case on the proof, but this will only be allowed in cases difficult of description. Thus " cruel "and barbarous treatment, or wilful and culpable neglect," was held relevant, although there was only one state- ment of facts detailed, the Court holding that only one crime was set forth (2). And it would appear that the same will hold where several words are combined in practice to describe one crime, as " falsehood, fraud, and "wiKul imposition," even although the prosecutor proceed afterwards to describe them as crimes, if the subsequent details of the libel shew that these terms truly denote only one offence. Any one of several things named may be a crime, but if the prosecutor intends to plead this, then they ought not to be strung together in the major, but distinctly separated by such words as " as also " (3). On the other hand, a too lavish use of alternatives, by which the accused may be misled as to the true nature of the case against him, or compelled to be prepared to meet a great variety of cases without sufficient reason, will not be permitted (4). , "Where an act which is not a crime at common law. 1 Hume ii. 169. — Alison ii. 235, 236. 2 John M'Bae or M'Crae and Catherine M'Eae or M'Crae, Glas- gow, Sept. 20th 1842 ; 1 Broun 395 and Bell's Notes 176. 3 Jas. Maitland, H.O., Feb. 7th 1842 ; 1 Broun 57. — Bob. Smith and Jas. Wishart, H.O., March 23d 1842 ; 1 Broun 134 and Bell's Notes 175.— John Stuart and Catherine Wright, or Stuart, H.C., June 15th 1829; Bell's Notes 180. 4 Will. Inglis and Catherine Eussell or Inglis, H.C., June 29th 1863 ; 4 Irv. 418 and 35 Sc. Jur. 611, (Lord Justice General Macueil's opinion). INDICTMENT. 325 or by the ancient statute law, is declared criminally the Major pko- legislature, the statute must be specially quoted in the major proposition (1). And it seems now the universal statute must practice where a statute passed since the Union, and where special which the prosecutor proposes to found upon, intro- appoLted'for duces anything to the prejudice of the accused, contrary "ommon law '^, , ° r J ^ » J offence. or in addition to the common law and ancient statute law estimate of the offence, to libel the statute thus : — " That albeit by an act passed in the . . . year of " the reign of her present Majesty, Queen Victoria, chap- " ter . . . and entituled ' an Act for consolidating " and amending the laws against offences relating to the " coin,' it is enacted by section ... of the said Act, "that." — Or where the crime is set forth generally at common law, and it is necessary to add a special quotation of the statute, thus : — "And more particularly, " WHEKEAS, by an Act passed in the seventh year of the " reign of her present Majesty, Queen Victoria, chapter " . . , and entituled, an Act for, &c., it is enacted," &c., and then follows the statutory statement of the of- fence and penalties (2). Where a statute is quoted, the whole clause should be "WTioie clause ., , 1 i? -i J. i.1 1 i of statute must given, even though much ot it may not exactly apply to be quoted. the case (3). At one time this was not so strictly attended to as now (4). If the Act be properly Title need described, and the section properly quoted, it is not ''°' ^^ ii'ote'i- necessary to quote the title (5). Where the charge where is under one section of a statute, which makes special reference to another section, upon which its intelligi- both must be quoted. 1 Alison ii. 228. 1 Irv. 130.— Will. Newman, H.O., 2 Hume ii. 166, 167.— Alison ii. July 14th 1856 ; 2 Irv. 439. 228, 229. 4 John Stuart and Catherine 3 Alison ii. 229.— Will. Hardle, Wright or Stuart, H.C., July 14th Jan. 24th 1831 ; Bell's Notes 170.— 1829; Bell's Notes 170.— Michael JohnDoohartyandPhilipDocharty, Broggan, 1830 ; Bell's Notes 170. Glasgow, Jan. 1831 ; Bell's Notes 5 Will. Maclaren, H.C., 23d May 170.— Eugene B. A. Whelps, H.C., ' 1836 ; 1 Swin. 219, (this point is July 26th 1842; 1 Broun 378. — not mentioned in the rubric,) and Geo. Duncan, H.O., Dec. 21st 1852 ; Bell's Notes 171. one section refers to another S26 IKDICTMENT. Majok pko- position. Where explan- atory section quoted it is no objection that the Court has ' not jurisdiction under it. Where Act em- bodies another law, reference should be made thereto. Interpretation clause need not be quoted. Where Act modified by later act, both must be quoted. Question whe- ther a renew- ing statute must be quoted. Statutes con- ferring juris- diction need not be quoted. bility depends, it is necessary to quote that other sec- tion also (1). But in such a case the explaining section is held to he quoted narrative onLj, and therefore, it is no objection to the prosecu.tor so quoting it that the Court before which the charge is brought has no jurisdiction under that section (2). Where a statute embodies in itself the enactments of another law by reference, as for example, the statute against incest, which refers to the 18th chapter of Leviticus, it is usual besides quoting the statute, to make a sufficient averment to bring the case to be afterwards detailed within the sanction of the law referred to. Thus, in the case of incest, after quoting the statute, it is usual to add some such statement as the following : — " And albeit, father and daughter are of " such persons in degree as are so forbidden in the said " eighteenth chapter of Leviticus." It has not been held imperative to quote a section which gives an interpreta- tion of the words used in the clause specifying the offence (3). Where a statute has been modified by a subsequent Act, the omission to quote the later Act will be fatal (4). In the case of a statute passed for a certain number of years, and merely renewed by a subsequent statute, the question has been raised but not decided, whether the Act renewing it must be quoted (5), but obiter dicta have been pronounced rather against the necessity of libelling the renewing statute (6). It is not necessary to quote a statute which merely confers juris- diction (7), or gives a power to mitigate punishments or 1 Thos. Lauder and WiU. Longmuir, Ayr, May 1st 1844; 2 Broun 177. 2 John M'Nab and others, H.G., March 14th 1845 ; 2 Broun 416. 3 Jas. Graham, 10th Dec. 1832, — Bell's Notes 172. — Geo. Duncan, H.O., Deo. 21st 1852 ; 1 Irv. 130. 4 Jas. Martin, H.O., Nov. 16th 1835; 1 Swin. 5 note, and Bell's Notes 171. 6 WiU. Maclaren, Perth, April 14th 1836, and 1 Swin. 177, and BeU's Notes 172. 6 Same case, H:.C., May 23d 1836; 1 Swin. 219 and Bell's Notes 172. 7 Richard F. Dick and Alex. Lawrie, H.C., July 16th 1832 ; 4 Sc. Jur. 594, and 5 Deas and Anderson 513, and BeU's Notes 172 Will. Mackenzie and others, Stirling, April 25th 1844 ; Lord Justice Clerk Hope's MSS. INDICTMENT. 32^ substitute one punishment for another, without relation Major pko- to the particular offence, as for example, the statute suh- ^°^^'"°^- stituting penal servitude for transportation (1). Further, gati'ng^Snish- it is not necessary to quote a statute conferring power ment, or con- to make regulations where it is intended to found on the tomakereguia- regulations in the minor proposition (2), or a statute prose'outOTfao? giving the prosecutor some facility in libelling, as for lities in libei- example, where the Post-office Statute gives the prose- be quoted, cutor the right to describe letters, &c., as being the pro- perty of the Postmaster-General (3). All substantive aggravations of the offence charged Aggravations must be set forth in the major proposition (4), thus : — ^™^ j^ ^^ior. " Theft, especially when committed by a person who is " habit and repute a thief, and has been previously con- " victed of theft" : — "Assault, especially when committed " with loaded firearms, to the effusion of blood and serious " injury of the person": — "Assault, especially when com- " mitted with intent to ravish." But where more than one act of the same crime is intended to be charged, and Where aggra- the aggravation does not apply to both or all of the acts, Iggravate ™' they need not be separately named in the maior " theft (as offences to be J r J d \ proved, not " also theft)especiallywhen committed by means of house- neoessa,ry to " breaking," the words in brackets being unnecessary (5). Saj™.™ And the same holds where a crime is charged along with a statement of a specialty, as for example, where " theft, " particularly horse-stealing," is charged. Under such a charge it is competent to prove the theft of other things besides horses (6). Upon the same principle where 1 John Nellis or Neillus, H.O.,' John Livingston and John Seymour, May 20th 1861 ; 4 Irv. 60 and 33 Stirling, Sept 1832 ; Bell's Notes So. Jur. 456. 179. — John Eeid and Bob. Pentland, 2 ThoB. Houston and Jas. Ewing, H.C., March 11th 1833 ; S So. Jur. Glasgow, April 23d 1847; Ark. 336 and Bell's Notes 179 Helen 252. Henderson, H.C., Nov. 6th 1849; 3 Act Will. IV. and 1 Vict. c. Lord Justice Clerk Hope's MSS.— 36, § 40. Francis Kean and Patrick M'Cabe, 4 Hume ii. 170 and note a. — Jas. Glasgow, April 25th 1860 ; 3 Irv. Mack, Glasgow, Dec. 22d 1858 ; 3 686 and 32 Sc. Jur. 640. Xrr. 310. 6 Jas. Mitchell and Tfaos. Donald, 5 Alison ii. 233. — ^Bob. Nicolson, Aberdeen, April 15th 1842 ; 1 Broun June 20th 1842 ; BeU's Notes 177.— 261 and BeU's Notes 177. 828 INDICTMENT. Major pro- position. Where aggra- Tation applica- ble to one accused only, not necessary to repeat in major. Aggravation may be implied by terms of statute. Intent how to be charged. Previous malice need not be charged in major. Use of terms particularly and especially. there is more than one prisoner, and an aggravation is applicable only to one : — " Theft, especially when com- mitted by one who has been previously convicted of theft," is sufficient to meet the case of the unaggravated as well as of the aggravated theft (] ). Aggravations may be implied by the quotation of the clause of a statute, as where it is enacted in the coining statutes, that when a person has been previously con- victed under it, any new offence shall be deemed a high crime and offence (2). Where intent is charged as a material part of the crime — " assault, with intent to ravish " — ^the prosecutor binds himself to prove the intent, and cannot ask a con- viction of the act without the intent (3). To enable him to do this the intent must be put specifically as an ag- gravation : — " especially when committed with intent," &c. Under this form he may obtain a verdict of the prin- cipal offence, although the aggravation be negatived (4). It is not necessary to charge anything in reference to the evincing of previous malice in the major proposition in order to entitle the prosecutor to aver previous malice in the minor proposition (5). It is necessary to notice here one matter which has never been satisfactorily disposed of by decision, or settled by practice, namely, the true import and effect of the words "particularly " and " especially " when used in the major proposition (6). Although the word 1 Alison ii. 233. 2 This, it is to be observed, is not properly speaking a mode of charg- ing an aggravation. The Statute makes the circumstance of a previ- ous conviction constitute a new and higher offence. 3 Hume ii. 450, case of Peddle there.— Alison ii. 248, 249.— Alex. Wright and Will. MofEat, H.C., Feb. 26th 1827; Syme 136.— John Stuart and Catherine Wright, H.C., June 15th 1829; Shaw 221 and Bell's Notes 180. — See also Hume L 259, case of Horn or Mnckstraffick in note *. 4 Alison ii. 249. — John Bae and Bob. Montgomery, Glasgow, Jan. 10th 1856 ; 2 Irv. 355. 5 Davidson v. Gray, Glasgow, May 7th 1844 ; 2 Broun 173. 6 See Alison ii. 230, 231, 232, and several cases quoted in Bell's Notes 177, 178. mCICTMENT. 329 " especially " is usually held to indicate a charge of Major pro- aggravation, and the word " particularly " to be the '^°^™°''' leading word of an explanatory statement ; still it has . been held in some cases that " especially " may import nothing more than a particularisation (1), and it is un- doubted that in some cases " particularly " indicates an aggravated offence, as, for example, in the case of " theft, " particularly horse-stealing " (2). It would certainly be advisable, so far as possible, to avoid using the two words indiscriminately, by confining the use of the term " especially " to those cases, where that which follows the word is intended to be charged as an aggravation, and by using the word " particularly " where specifica- tion is the only purpose of the clause. The minor proposition contains an af&rmation of the Minob pro- guilt of the accused ; — " Yet true it is and of verity that Affirmadon of " you, the said John Brown, are guilty of the said crime, giiit- " actor or art and part." Where two are charged together, Case of several the charge runs: — "You the said John Brown and ggj^g^f *°" " William Black, are both and each or one or other of " you guilty of the said crime, actors or actor, or art and " part." If there be more than two accused, " aU and " each or one or more of you " is the form. If crimes -Aitemitive be alternatively put, the form is : — " are guUty of the " said crime of robbery, actor or art and part, or of the " said crime of theft, actor or art and part." Or if several Caseof persom persons are charged with different crimes thus : — " You '^^slimt^^ " the said John Brown, are guilty of the said crime of offences. " theft, actor or art and part, and you the said William 1 Ohas. Maointyre, Inverness, is tbe invariable form of such Sept. 14th 1837 ; 1 Swln. 536, (Lord charges. But formerly the -word Medwyn'e opinion). — Geo. Kippen, "especially" seems to have been H.C., Nov. 6th 1849; J. Shaw used as frequently as the word 276, (Lord Justice-Clerk Hope's "particularly." A large number opinion). — See also John Arthur, of indictments for animal stealing H.C, March 16th 1836 ; 1 Swin. have been found in Lord Wood's 124, (Lord Mackenzie's opinion). collection, some of which use the 2 At the present time the above one word and some the other. 330 IKDICTMENT. MiNOK PRO- " Black are guilty of the said crime of reset of theft, actor ^°^"^°^- " or art and part." Where crimes are libelled in the ma- differentorimea jor, not by a nomenjuris, but by a detailed statement, it is by number. xxsMsl to refer to them in the minor by number, thus : — "the crime first above libelled," . . . "the crime Cumulative " second abovc libelled." If there be two crimes to be c arge. charged cumulatively, the minor sets forth, " are guilty " of the said crimes or of one or other of them." Where there are more than two, " one or more of them " is the form. In such a case if the minor states "guilty of Case of addi- " Said Crime," the libel will be held irrelevant (1). But menf ^r'esorib- ^^^^ *^°^^ "^"^ ^PP^y *° ^^^ ^^^^ °f ^ Crime at common ed by statute law, to which a Statute has merely applied a higher law offence, punishment. Both offences, the common law and the statutory, are in fact the same, and therefore " guilty of " the said crime" is enough (2). Form of affir- Where the whole section of a statute which creates dausT ^f'^Btet- several offences is quoted in the major proposition, but ute containing the accuscd is not to be charged with aU of them, the fences libelled afi&rmation should specify the offence actually alleged to in major. bavc been committed, either by using a number — " the " statutory offence first set forth in the before recited " section of the statute above libelled," &c., or by shortly quoting the words of the statute in reference to the par- ticular offence charged (3). But although this is the more correct form, the Court have allowed indictments to pass, in which, although only one of the crimes con- tained in the section of the statute was to be charged, it was af&rmed that the accused was guilty of " the statutory " crimes and offences above libelled, or of one or more "of them." This, however, it was admitted in these 1 Alison ii. 246, 247 and cases of H.C., July 25th 1842 ; 1 Broun 378 M'Innes and Maebride: and KoUo and Bell's Notes 184, (Lord Justice- there. Clerk Hope's opinion). — Thos. 2 Alison ii. 247 and case of Begley, Glasgow, Dec 23d 1846 ; Gowans there. Ark. 217. 3 See Eugene E. A. Whelps, INDICTMENT. 331 cases was an objectionable mode of libelling (1). But Mraou pro- where the statute set forth a number of different actions, and declares generally that any person who commits any naming several of them shaU be held guilty of "a crime and offence," ^^^^/^Et- the statute is held to set forth one offence only, which ing an offence, may be committed in different ways, and therefore it is sufficient to affirm that the accused is " guilty of the statutory crime and offence above libelled," although only one of the acts specified in the statute is to be proved (2). Again, where a statute ordains that persons fSe^resori- committing a certain offence are to be dealt with in differ- tea different " . punisuments ent ways, if the offence actually charged is a nrst, a for second and second, or a third offence, the affirmation in the case of *^'^ °*™''^'- a previously convicted offender, must contain a statement sufficient to bring the offence into its proper place under the statute, e.g., " are guilty of the statutory offence set " forth in the section of the statute above libelled by " offending as therein set forth a third time, actor or " art and part " (3). If a statute calls a particular act " an offence " or " a fgence^rsw- high crime and offence," or the like, the words of the nte should be statute are used in the affirmation — " you the said John tion. " Brown are guilty of the statutory crime and offence (or " the statutory high crime and offence) above libelled, " actor or art and part." But where an offence is created P^' English '^ terms used m a, by a statute applicable to the United Kingdon, the pro- British statute .. .nj J. . 1*1 • need not be secutor is not called upon to use terms which are map- followed. propriate to Scottish form, as for example the term " misdemeanour ; " but is entitled to use the ordinary 1 See Eugene E. A. Whelps, 4 Irr. 474 and 36 So. Jur. 404. H.O, July 25th 1842; 1 Broun 3 Jas. Bird, Dundee, April 1865; 378. — Geo. Duncan, HO., Deo. 21st (Indictment) following on Geo. 1852 ; 1 Irv. 130. Duncan, H.O., Feb. 29th 1864 ; 4 2 Elizabeth Mackenzie or Stru- Irv. 474, where an indictment under thers and David Struthers, Glasgow, such a statute was found irrelevant, Sept. 23d 1842 ; 1 Broun 422 and there being nothing in the affirma- Bell's Notes 136. — Will. Newman, tion to shew whether a first, a H.O., July 14th 1856 ; 2 Irv 439. — second, or a third offence was Geo. Duncan, H.O., Teb. 29th 1864 ; charged. 332 INDICTMENT. MiNOK PRO- POSITION. Aggravations must be libel- led iu afSnua- tion, but only those which are in major. Form of libel- ling aggrava- tions. Form where aggravation applies only to one accused. Different degrees of aggravation. Question whether "as aforesaid," always refers back to major. form of charging the accused as guilty of the " statutory " crime and offence " (1). Aggravations must be distinctly lihelled in the affir- mation of guilt, or they will he expunged from the major (2), and no aggravation can be libelled in the af&rmation, which is not in the major (3). In cases of aggravation the affirmation runs : — " are guilty of the " said crime, aggravated as aforesaid, actor or art and " part." Or where there are more persons than one, and the aggravation does not apply to all : — " you the " said John Brown are guilty of the said crime of theft, " aggravated as aforesaid, actor or art and part ; and " you the said William Black are guilty of the said " crime of theft, actor or art and part." Or in the case of several panels charged with different aggravations : — " you the said John Brown are guilty of the said crime " of theft, aggravated as aforesaid, actor or art and part, " and you the said "William Black are guilty of the said " crime of theft, aggravated by your being habit and " repute a thief, actor or art and part, and you the said " David Green are guilty of the said crime of theft, ag- " gravated by your having been previously convicted of " theft, actor or art and part, and you the said Peter "White " are guilty of the said crime of theft, actor or art and " part." AVhere the major proposition charged theft, ag- gravated by habit and repute and previous conviction, and the affirmation stated : — " you the said Donald M'Kellar " are guilty of the said crime of theft, aggravated by your " having been previously convicted of theft, and you " the said Eobert Devlin are guilty of the said crime. 1 Geo. Duncan, H.G., Jan. 6th 1842 ; 1 Broun 4 and Bell's Notes 118. 2 Alison ii. 248, and case of Don- aldson and others there. — Peter Sutherland, July 4th 1831 ; BeU's Notes 178. — It cannot be doubted that the libel in the cases of Mac- Lauchlan and others : and Marr and Anderson cited on this page of Mr BeU's Notes, were passed ^erintn*- riam. — Thos. Whitfield and others, H.C., July 28th 1843 ; 1 Broun 609. 3 John Stuart, June 15th 1829 j Shaw 221. INDICTMENT. 333 " aggravated as aforesaid," the question was raised Minoe pro- > POSITION. whether the words " as aforesaid " referred to the major '■ proposition, or only to the previous statement regarding the other prisoner, and the additional charge of habit and repute was withdrawn, in deference to doubts expressed by the Court (1). It is thought that these doubts were ill founded. The affirmation is in aU its parts referable to the major proposition, and the assertion in reference to each accused person — " you are guilty," is an assertion going directly back to the major proposition, and quite independent of the charges against other persons ac- cused. But the question is one which need never arise, as it is easy for the prosecutor to avoid any risk of diffi- culty, by not using the term "as aforesaid," but by naming the aggravations directly. "Where several crimes Not necessary , J . , I . ... to distinguish were charged in the major proposition, some as aggra- between vated and others without aggravations, an objection that ^^J^j^™ the affirmation stated the accused to be guilty " of all aggravation. " and each or one or more of the said crimes,' aggravated " as aforesaid," and that this was inconsistent, was repel- led (2). And a libel was sustained which charged the accused as guilty "of the said crimes, aggravated as " aforesaid, or of one or more of them," though the Court indicated an opinion that this was not so correct a style as that above quoted (3). As it is sufficient in the major proposition, where the Not necessary same crime is to be proved to have been committed b^etween^"'^'' both in its simple and in an aggravated form, to state aggravated and the crime and the aggravation^ without stating " theft, chafg^ of " as also theft especially," &c., so in the affirmation, in ^^^^'^ °^^'"'^- such a case, — as where an act of aggravated theft and 1 Donald M'Kellar and Bob. had previously passed without ob- Devlin, Glasgow, Sept. 26th 1854 ; jeotion. — David Wilson and others, 1 Irv. 662. Deo. 22d 1828 ; Bell's Notes 177. 2 Gilbert Maoallum, H.O., March 3 Will. Eait, H.O., Nov. 17th 7th 1836; 1 Swin. 64 and BeU's 1851 ; J. Shaw 500, and 1 Stuart 48, Notes 178. — A similar indictment and 24 Be. Jur. 13. 334 INDICTMENT. MiNOB PRO- POSITION. Affirmatiou of aggravation may be implied in statutory casds. BUBSUMPTION. Division into time, place, and mode. an act of simple theft are to be proved, it is sufficient to charge the accused as guilty of theft aggravated as afore- said, without charging that he is guUty of " theft, and " of theft aggravated as aforesaid " (1). Although there must be a distinct affirmation of the aggravation, this may in statutory cases be implied. Thus, where a statute raises an offence to " a high crime " and offence," in the case of a person previously con- victed, the aggravation is sufficiently set forth by stating that the accused is guUty of "the liigh crime and " offence set forth in the above recited section " (2). The words " (actors or) actor, or art and part," at the conclusion of the affirmation, are words of style and cannot be dispensed with (3). The insertion of the words " art and part " is a statutory solemnity (4). But it has been held that it is not a good objection to an indictment for concealment of pregnancy that the words " or art and part " were omitted, the crime being one in its nature incapable of accession (5). After the affirmation follows the subsumption or statement of the detail of the crime. It begins : — " In " so far as," and then follows a statement of the time, 1 Francis Keane and Patrick M'Cabe, Glasgow, April 25tli 1860 ; 3Irv. 685 and 32 Sc. Jur. 640, over- ruling David Syme, Nov. 7th 1837; Bell's Notes 179. 2 Where the statute speaks only of "offending" a second time or a third time, without altering the name of the offence, previous con- victions are not strictly speaking libelled as aggravations, as without them there may perhaps be no jurisdiction to try the offence at all, but they must be set forth as a sub- stantive element constituting the offence charged. — Vide 331. 3 Hume ii. 239.— Alison ii. 250, 261. — In the case of Hugh Bran- aghan and Catherine Robertson or Branaghan, Ayr, Sept. 11th 1856, the words " actors or " were omit- ted, although the charge was against two persons. On an objection to the rdevanoy being raised, the case was certified to the High Court, but no further proceedings took place upon the libel. Lord Deas was for sustaining the objection, Lord Ivory " doubted." — Lord Ivory's MSS. 4 Act 1592, u. 153. 5 Alison Punton, H.C., Nov. 5th 1841 ; 2 Swiu. 572 and Bell's Notes 81. — For a more complete state- ment in reference to this matter, vide 171 to 173. INDICTMENT. 335 place, and mode of tlie commission of the crime. The SnEsuMPTiou. charge sometimes begins with a preliminary statement of the facts* out of which the crime arose ; but as it wiE conduce to clearness to state the rules applicable to the setting forth of time, place, and mode, separately from one another, and as in the ordinary case the state- ment of time and place occurs at the outset of the sub- sumption, it will be most convenient to defer all obser- vations on the detail of the acts constituting the crime, until the conclusion of what it is necessary to say about time and place. It is absolutely essential that there be a statement in Time. the charge as to the time of the offence (1). The fol- |^e tod°4eL- lowing is the usual form of statement : — " On the loth '^'^i^. " day of April 1865, or on one or other of the days Fo™.^iiere J r J •'a particular " of that month, or of March immediately preceding, or time is of the " of May immediately following." When it is part of offence." the essence of a crime that it was committed at night, as in night poaching offences, the form is "by night, " that is to say, between the expiration of the first hour " after sunset, and the beginning of the last hour before " sunrise, on the night of the 6th, or morning of the- " 7th day of January 1864, or on some other night or " morning of December immediately preceding, or of " February immediately following." Three months is the usual latitude allowed in all Three months cases (2). The prosecutor will be allowed to libel the p^ermissiwr*^" time more indefinitely, only on showing satisfactorily by ^^rtter lati- his charge that he cannot reasonably be expected to allowed on confine himself to the three months, or to be accurate "*"°®® °^^' in specifying any particular time, either from the ac- cused having had facilities for committing the offence without observation, or from the offence being of an 1 Eob. Wyllie and Agnes Eioh- 2 Hume u. 221. — Alison ii. 251 ardson, Glasgow, April 26th 1820 ; 252, 253. Shaw 49. • Fide 353, 364. 336 INDICTMENT. Time. occult nature, or from some other specialty (1). Take for Oases of eer- example, the case of a series of thefts (2) by a shop- from fields, &o. man (3) or servant (4), or by a constable in charge of premises (5) ; or by a person in co-operation with the owner's son (6) ; or such cases as embezzlement by a clerk of a firm sent to collect accounts (7) ; or thefts of sheep (8) ; appropriation of articles given out to be cleaned or repaired (9) ; or cases of incest and adul- tery (10) ; or unnatural offences (11) ; or crimes com- mitted at sea (12). A libel charging cruelty to a child " at many different times between the 1st of July 1838 " and the 17th of April 1839, the particular times " being to the prosecutor unknown," has been sus- Protraoted cruelty to child. 1 Alison ii. 254, 255, and case of Keid there. — Alex. Grigor, Inver- ness, April 27th 1832 ; 6 Deas and Anderson 267. — Eob. Smith and Jas. Wishart, H.C., March 23d 1842 ; 1 Broun 134 and Bell's Notes 216. — Jas. T. Creighton, Dumfries, Sept. 29th 1842 ; 1 Broun 429 and Bell's Notes 216. — An indictment for a single act of theft was found relevant in 1832, where a range of four months was taken without any specification of any particular, and without stating that the particular time was to the prosecutor un- known. — Will. Martin and Ac[am Arohbild or Archibald, H.C., June 11th 1832; Bell's Notes 215.— It may be doubted whether such an indictment would be sustained at the present day. 2 Alex. Law and Henry Martin, Dec. 27th 1831; BeU's Notes 217.— Jas. Macintosh, Inverness, April 18th 1832 ; Bell's Notes 217. 3 Hume ii. 222, case of Lillie there.- Thos. B. Harper, H.C., Feb. 24th 1840 ; Bell's Notes 216.— Will. Stuart and others, Inverness, May 2nd 1866(not yet reported). 4 Dawson v. Maclennan, April 2nd 1863 ; 4 Irv. 357 and 35 Sc. Jur. 615 (lord Justice General Macneil's opinion). — See also Alex. Fraser and Margaret Wright, H.C., March 16th 1835 ; Bell's Notes 215. — Janet Drummond, July 12th 1832 ; Bell's Notes 216. 6 Alex. Glennie, H.O., June 27th 1864 ; 4 Irv. 636. 6 Will. Cattanach, Perth, Oct 4th 1838; 2 Swin. 189 and Bell's Notes 216. 7 John Bae, H.C., May 16th 1854 ; I Irv. 472. 8 Andrew Hempseed, June 11th 1832; BeU's Notes 215.— Geo. Doug- las, H.O., Jan. 23d 1865 ; 5 Irv. 53 and'37 Sc. Jur. 354. 9 Elizabeth Warrington, alias Oollie, July 15th 1831 ; Bell's Notes 216. 10 Hume ii. 222, 223, cases of Weir: Hamilton: Moor: Haitly: Spence and Blewbatter : and Camp- bell there. II Hume ii. 223, cases of Mit- chell: Hog: Easton: andOliphant there. 12 Hume i. 483. INDICTMENT. 337 tained (1). A latitude of three montlis, witliout speci- Time. fication of any one day, was allowed in a case of Eapo— young rape committed on a child of tender years (2). XJn- caleofiong usual latitude is also permissible in cases where there is interval be- a long interval between the crime and the trial, so long and trial. that witnesses cannot reasonably be expected to speak to the exact time (3). In cases of reset, the time of the Time need not theft being set forth, the time of the reset need not be reset.'"'*'' '° set forth particularly (4), but some statement as to time is indispensable (5), although it may be sufficient to say that the time was to the prosecutor unknown. The Sufficient ITl PRRP DT same holds in cases of forgery, as regards the act of forgery if time forging (6), but the time of the uttering^must be more gpe^'g^"^ ^® specifically libelled (7). All unusual latitude is only aii extra lati- admitted from necessity, and any excess wiU be care- *^y of nec»e^ fully excluded (8). Where a schoolmaster was charged s'*y- with using improper practices towards female pupils All the specifl- for a long period, it was held that considerable latitude be given must in the statement of time might be allowed, but that the ^® S'^™' period applicable to each of the pupils should have been separately specified (9). The prosecutor requires to be careful that the time statement of specified is truly applicable, by, the grammatical con- cOTn^ted with struction of his narrative to the offence to be charged. The indictment will not be sufficient if the time be 1 John Craw and Mary Bee or 6 Sume ii. 222, and cases of Craw, H.O., Nov. 8th 1839; 2Swin. Campbell: Harris: M'Haffee: and 449 and Bell's Notes 217. Eeid there.— Alison ii. 255, 256.— 2 Will. Carlyle, H.C., June 10th Alex. Humphreys or Alexander, 1839 ; 2 Swin. 392 and Bell's Notes April 29th, 30th, and May 1st 1839 ; 215. 2 Swin. 356 and Special Eeport. 3 Hume ii. 223, 224, and cases of 7 John Jerdon, Jedburgh, May Macgibbon : Bruce : More : Oil- 3d 1837 ; I Swin. 502 and Bell's phant : and Cunningham there. — Notes 217. Alison ii. 267. 8 Hume ii. 224.— Alison ii. 256, 4 Hume ii. 221. — Alison ii. 255, 257. — Alex. Wilson, Aberdeen, and oases of Johnston and Wylie : April 22d 1856 ; 2 Irv. 409 and 28 and Boug there. Sc. Jur. 389. 5 Eob. Wyllie and Agnes Eioh- 9 Hume ii. 224, and case of BeU ardson, Glasgow, April 26th 1820 ; there. — Alison ii. 256. Shaw 49. statement of act done. statement. 338 INDICTMENT. Time. so Stated as to appear to relate only to a preliminary- part of tlie narrative (1), or to relate to a part of the charge which, without a subsequent part, would not constitute a complete offence (2). Latitude some- Where extra latitude is taken, it is sometimes set aiternativT ^ forth by an alternative : " or at some other time between " the first day of September 1846 and the thirty-first " day of May 1847, the particular time being to the " prosecutor unknown." It is only in certain cases that an extreme latitude will be allowed in the alternative, such as theft of a found article (3) ; reset (4) ; suborn- ation of perjury (5), and the like. The time of the act which forms the true basis of the charge is all that it is necessary to specify (6). For example, where previous malice is libelled, the time when this was evinced need not be specified. But where it was stated in a libel for neglect of precautions in a certain dangerous operation, that the accused had re- ceived repeated warnings, the Court ordered the clause to be struck out, as, if it was intended to prove the warnings as a specific aggravation of the offence, the accused was entitled to notice of the time when they were. said to have been given (7). In cases of bigamy, the time of both marriages must be set forth (8). Where the first marriage is not recent, considerable latitude is allowable in stating the time of its celebra- 1 Angus M'Pherson, H.C., June 7 Jaa. Finney, H.O., Feb. 14th 30th 1845 ; 2 Broun 447. 1848 ; Ark. 432.— Such a statement 2 John Speirs and others, H.O., seems, however, to have passed in March 25th 1836 ; 1 Swin. 163 and a subsequent case, and to have been Bell's Notes 206. made one of the grounds of deter- 3 John Smith, H.O., March 12th mining the amount of punishment 1838 ; 2 Swin. 28 (Indictment). following on a plea of guilty. — 4 tfume ii. 221. Elizabeth Hamilton, H.O., Nov. 9th 6 Eob. Walker, E.G., March 19th 1857 ; 2 Irv. 738 But in that case 1838 ; 2 Swin. 69 and Bell's Notes no objection was taken. 197. 8 John Braid alias John Baird, 6 Humeii. 224, and case of Ooutts H.O., Feb. 24th 1823 ^ Sha|W 98. and others there. INDICTMENT. 339 tion (1). Tn cases where a great number of crimiBal acts are to be libelled as having been committed at dif- ferent times, the particular times may be referred to as set forth in inventories* The place where the offence has been committed must be correctly set forth (2). It is not sufficient that it is set forth as the accused described it in his declaration. Nor is it sufficient that -it is described in the same terms as those of the accused's designation, under which he has pleaded, if that description be wrong (3). But where the libel set forth a house " in or near the Old " Wynd of Glasgow, occupied by Nancy Campbell, " lodging-house keeper there," and the fact was that Time. Time may be Bet forth in an inventory. Locus. Statement of place essential. Not sufficient that set forth as accused described it. Case of inci- dental iuaoou- racy not held fatal. 1 John Armstrong, H.C., July 15th 1844 ; 2 Broun 251.— The fol- lowing occurs in Lord Monoreiff's MSS. in the case of Jas. Cameron and Helen George or DouU, Aber- deen, Sept. 24th 1835 :— " Objection " to relevancy of indictment that " too great latitude is taken as to " one of the marriages ; it being " stated to be on the 16th April in " the year 1816 or 1817, or one or " other of the days of that month, " or of March immediately preced- " ing, or of May immediately follow- " ing, in one or other of said years." " Bxplained by prosecutor that " there was a difficulty from a dis- " crepanoy between a certificate " by a clergyman (a very old man " whose faculties are impaired) and " an extract from the parish regis- " ter. The Court (Medwyn and " I) hold case as very special : that " from the nature of the fact there " ntaiij be a difficulty in the time, " and that it may depend upon cir- " cumstanoes whether prosecutor " was so situated, as not to entitle " him to take such latitude : And. " thersfore intimate, that they repel " objection in hoc statu, reserving " to consider on the evidence whe- " ther there was such unreasonable " prejudice to the prisoner as ought " to prevent the case from going " to the jury for a verdict." 2 Hume ii. 209.— John Sinclair alias Jas. Crawford, Glasgow, Sept 25th 1829 ; Bell's Notes 207.— Tea- man V. Tod, H.O., July 11th 1836 ; 1 Swin. 247 and Bell's Notes 123. John Jones and Edward Malone, H.C., June 22d 1840; 2 Swin. 509 and Bell's Notes 209. — John Mack- enzie, H.C., Nov. 23d 1840 ; 2 Swin. 524 and Bell's Notes 208.— Jas. Wilson, Perth, Oct. 3d 1853; 1 Irv. 300. — It may be doubted whether the decision in the case of Whitton or Stormouth v. Drummond, H.C., March 12th 1838; 2 Swin. 62 and Bell's Notes 152 (where a convic- tion was sustained, though no locus was set forth in the complaint), would now be followed in similar circumstances. 3 Arch. M'Quilkin, H.C., Nov 26th 1838; 2 Swin. 212 and BeU's Notes 208 John Mackenzie, H.O., Nov. 23d 1840 ; 2 Swin. 524 and Bell's Notes 208. Vide 377. 340 INDICTMENT. Locus. Wherever description misleading, libel irrele- vant. Bad arrange- ment of -words may be fatal. " Sarah or Sally Campbell " occupied the house, the Lord Justice Clerk Hope directed the jury that Nancy Camp- bell being an occasional lodger in the house, and the prisoner describing it in his declaration as " the house " of Nancy Campbell," the presumption was that Nancy Campbell was living there at the time, and that there- fore she was an occupant of the house (1). The objec- tion here went not so directly to the description of the locus, as to a merely incidental part of it, namely, the exact name of a person residing there (2). Accordingly, where the house was set forth as occupied by Peter Donegan, whereas the fact was that the house was that next to Donegan's, this was held fatal to the prosecu- tion, as it amounted not merely to a discrepancy as to an incidental fact, but to an actual statement of the locus, as being Donegan's house, whereas the prosecutor did not prove an offence committed in his house at all (3). Again, a theft being charged as committed " within " a certain 'house, whereas it was committed from a closet in a passage leading to the house, the dis- crepancy was held fatal (4). Even bad arrangement of the words, creating an ambiguity, may make the specification of the locus so uncertain as to cause the indictment to be held irrele- vant. For example, where the locus was set forth as " a field or park called Bannaty-nuU park, on the farm '■' of Bannaty-mill, . . . possessed by Geo. Swan, " farmer, in the parish of Strathmiglo, and county of " Fife," the objection was sustained, that there was no specification of the position of the park, the words in 1 Bob. Macdonald and Jobn Kilpatriok, Glasgow, May 6th 1842 ; 1 Broun 244 and BeE's Notes 208. 2 See observations by Lord Jus- tice Clerk luglis in Maxwell v. Black and Morrison, H.C., June 1st 1860 ; 3 Irv. 592 and 32 Sc. Jar. 617. 3 Mary Wilson or Smith, H.C., Nov. 11th 1836 ; Bell's Notes 207. 4 Elizabeth Thompson, Glasgow, Oct. 3d 1857 J 2 Irv. 722 and 30 So. Jur. 1. INDICTMENT. 34I " the parish, &c.," being so placed as to appear to be Loods. only the designation of Geo. Swan, and not to refer to the previous statement about the park (1). Again, where a theft was said to have been committed " from " a hedge, at the end of a house then occupied by Geo. " Hare, labourer at Dalhousie Mains," &c. the objection was sustained, that the specification did not state the place of Hare's house, as the words " at Dal- " housie Mains," &c., appeared to be connected with the word "labourer," and to mean only that he was a labourer at Dalhousie Mains (2). Lastly, where the libel specified the locits as " a field or park commonly " called or known as "Wester South Park, forming part " of the land of HousehUl, in the parish of Dunipace " aforesaid, the property of the trustees of the late Sir " Gilbert Stirling of Mansfield, and in the parish of " Larbert and county of Stirling," the objection was held fatal, that the locios was described as being in two dif- ferent parishes (3). If a place be set forth which has no existence, as for Oase of locus instance, " in the town of Bathgate in the county of ^yoh'has no " Pife," the libel is irrelevant. And even if part of the existence. description be wrong, although the description would be part^hioh^is complete without that part, this wUl be fatal (4). ^^°^sis '^ -"^ ^ ' unnecessary, But a difference of pronunciation, as where some wit- tUs may stm nesses called a place Straiten Dean, and others Struckon Mere di'ffer- Dean, the place being sufi&ciently described otherwise, enceofpro- wiU not found an objection (5). fatal. It is not indispensable in any case that the parish in Parish need not ■*■ '' ■'■be given. which an offence is committed should be specified, if the 1 John Buchanan, Perth, April 4 Hume ii. 208, case of Gordon 20th 1824; Shaw 121. in note 1.— Alison ii. 261, 262.— 2 Alison ii. 266, oase of Nisbet Maxwell v. Black and Morrison, there. H.O., June 1st 1860; 3 Irv. 692 3 Mitchell v. Campbell, H.O., and 32 Sc. Jur. 617. Jan. 6th 1863; 4 Irv. 267 and 35 5 Jas. Corbet, H.C., 13th March Sc. Jur. 159. 1828; Syme 339. 342 INDICTMENT. lOCDS. Country parish given incor- rectly fatal. But error in town, parish not necessarily fatal. Description must not bo ■vague. Street with- out town, or place without distinction be- tween county and town. In Hadding- ton, in shop occupied by A. B. locus be otherwise sufficiently described (1) ; but if the parish be incorrectly given in a case where the offence was not committed in a town, this will be fatal to the indictment (2). But it will not necessarily vitiate an indictment which charges the commission of a crime in a town, that the parish is incorrectly stated, if the .description be otherwise sufficient, the arrangement of parishes being arbitrary and often temporary in towns, and the proper division being by streets (3). The description of the locus must not be vague (4), as, for example, by naming a street without town or place (5), or a name such as Wigtown, which might be either the town, the parish, or the county (6), or by naming a locality such as " a young fir plantation on the east side of the " market muir of Forfar," there being more than one plantation, and there being no specification of county, parish, or property (7). But where the locus was de- scribed as " in or near Haddington," and in " the shop " occupied by A. B.," it was held that though it was not expressly said whether "Haddington" meant town or county, still the statement as to the shop gave " all 1 Hume ii. 210, case of Gordon in note 1. 2 Hume ii. 208, case of Gordon in note 1. — Maxwell v. Black and Morrison, H.C., June 1st 1860 ; 3 Irv. 592 and 32 So. Jur. 617.— These cases overrule the case of £lspeth Bpbertson, Hume ii. 208, 209. 3 Alison ii. 260, case of Auld there. — In Lord Wood's Indict- ments, the following has been found in reference to this case: — "At- " tempted by panel to prove that " Elder Street not in St. Outhbert's " parish. Court expressly stated " that objection bad, even if it were " so. In the case of a town where " parishes divided by magistrates "sufficient that street correctly " named." 4 This rule is much more strictly attended to now than formerly. Baron Hume mentions several cases (ii. 211, 212), in which the state- ment of the loeus was held sufficient^ but which unquestionably would be decided differently at the present day. Some of them are marked by the late Lord Justice Clerk Hope thus : — "Bad judgment." 5 Thos. Pearson, H.C., March 15th 1821 ; Shaw 27. 6 Jas. Bodan, Ayr, May 26th 1823 ; Shaw 100, and Hume ii. 210 note 1. (Hume differs from Shaw as to the reading of the judgment) 7 Thos. Cuthbert and Alex. Cuthbert, Perth, April 16th 1830 ; BeU's Notes 210. INDICTMENT. 343 "reasonable and proper information to certify the' pris- Locus. " oner that it was a town" (1). Again, where the locm Oaes of accused was described as " the Eggie and Drumside fishings," pSof. it was held that as the accused was alleged to he the tacksman of the fisheries, he was sufficiently certiorated as to the locus (2). Where murder was charged as com- Cases of inauffl- mitted in the accused's house, without further specifica- tion. ^°°"^" tion, and the accused was only described as " late ale- " seller in Dundee," the libel was found irrelevant (3). And in the same way where a theft was said to be com- mitted from a house " occupied by " A B., and the libel stated nothing further except that A. B. resided in Salisbury Street, the objection was sustained that it did not certainly appear that the house in Salisbury Street was the place of the offence (4). Also in a charge of shooting, the specification of the locus was found insuffi- cient, it being described as " on or near to the hiU of " Balnabroieh, in the parish of Kirkmichael and shire of " Perth." And the judges stated that the objection not only applied to the words " or near to," but to the general vagueness of naming a lull without specifying any part (5). When the accused was charged with breaking into " the " vestry of, or other apartment connected with " a chapel and "entering thereby to the said vestry or other " apartment, and to the said chapel," and " then and " there " stealing from a desk, — this was held too vague, as the prosecutor, if he did not know whether the desk was in the chapel or the vestry, should have libelled alternatively (6). 1 John Johnston or Parker and in note 1. — ^Alison ii. 264. Jas. Kelly or Scott, H.O., May 20th 4 D. Brown, H.O., Dec. 19th 1850; Lord Justice Clerk Hope's 1825; Shaw 145. and Lord Ivory's MSB. — See Alison 5 David K. Michie, Perth, Oct. ii. 260, cases of Sinclair and Niool- 10th 1846 ; 2 Broun 514. son : and Maclaren there. 6 Jas. Gibson and Malcolm 2 Tough V. Jopp, Aberdeen, M'Millan, H.C., March 12th 1849 ; April 28th 1863 ; 4 Irv. 366 and 35 J. Shaw 191. (This report is some- Bc. Jur. 472. what obsourg). 3 Hume ii. 210, case of Cameron 344 INDICTMENT. Loocs. Part of street need not be specified, nor by-streete dis- tinguished. Field on farm. Sheep walk. Case of there being two places of same name. Where the locus is described as a street, it is not necessary to specify the part of the street (1). And where it was objected that the locus was described as " an entry or common passage " in West Mcolson Street, and that there were several entries in the street, the objection was repelled, the Court holding that " West " Mcolson Street, or one or other of the passages leading " from it," would have been suflBicient, and that the words used were in substance the same (2). On the same principle, where a crime is committed in a field, such a specification as " a field on the farm of Mountpleasant, " in the parish of," &c., is sufficient (3). And in the case of mountain sheep wallcs, stiU greater latitude is al- lowed (4). But a wholly general statement of the locus is not permissible even in such a case. Thus, where the locus was described as a field on the east side of a certain road, " within the royalty of Glasgow," this was held insufficient (5). Where there are two places or streets of the same name in a district or town, it may be necessary to specify which is meant to be charged as the locus of the offence. In one case the crime being charged as com- mitted at a house in " Claremont Street in or near "Edinburgh," occupied by a party named, the objection that there were two Claremont Streets in Edinburgh was sustained (6). But where the locus was set forth as the 1 Alison ii. 260, case of Sinclair and others there. — Thos. Kettle and others, June 13th 1831 ; BeU's Notes 210. 2 Will. Duggin and John Xetchan, H.C., Dec. 1st 1828; Bell's Notes 210 and Lord Wood's MS. notes on indictment. 3 Alison ii. 267, 268.— Geo. Edgar and John Young, H.O., Feb. 4th 1828; Sy me 313.— Will. Geddes, Inverness, Sept. 29th 1843; Lord Justioe-Olerk Hope's MSS. 4 Alison ii. 268, case of Macleod there. — Geo. Douglas, H.O., Jan. 23d 1865 ; 5 Irv. 63 and 37 Sc. Jut. 354. 6 Alison ii. 269 and case men- tioned there. — There is no name given in Alison, but it has been ascertained from Lord Wood's MS. Notes on Indictments that the name of the accused was " WiU. Monro." 6 John Bow or Boa, H.C., July 16th 1832 ; 4 Sc. Jur. 593 and 5 Deas and Anderson 513. There is one decision which seems scarcely consistent with the above. — Agnes Neil and Mary Whitelaw, Glasgow May 4th 1832 j 6 Deas and Ander- mDICTMENT. 345 house situated in Hamilton Street, Glasgow, then " and i-ocus- " now or lately occupied " by the accused, it was held House desorib- ^^^ fin. 3iS rPSlQfiUPA not to be a good objection that there were two Hamilton of accused, not Streets in Glasgow, " Great '' and " Little," as the accused f^af tterefs'"' could not have been misled by the omission of the word another street " Great," the locus being specified as the house where the accused resided, and not merely by the street (] ). " At " a place has been held sufficient to cover a place "At" a place close to it (2). But where the crime was libeUed as c?ore™o*it but committed " in " St. Ann's Yard, and the fact was that " ™ " a place it was done in the Queen's Park, which was separated construed. from that yard by a garden wall, the prosecutor gave up the case (3). An offence may be charged as committed offence may be " within " a place, and this is sufficient even in cases of ^' ™ * ^ ^^' theft, as the amotio may be completed without there being necessarily any removal from the locus stated, as for example if a thief enter a field and take up a sheep on his shoulders, or be taken in a house with articles belonging to the owner in his possession (4). If the prosecutor directly aver that the act was com- -v^rhere place mitted at a particular place, while the fact is that it was distinctly ^ -^ . , alleged, any committed m a distinctly different place, however close substantial to the place named, this will be fatal to the prosecu- """^ * * ' tion (5). It may however be different, where the offence son 261. — But the circumstances of Jur. 345. that case seem to have been special, 2 Jas. Dewar, H.C., Jan. 7th 1838 ; there having been two closes which Byme 295, (Lord Justice-Clerk were called by a similar name Boyle's charge), running out of the same street, the 3 John Jones and Edward offence being charged as committed Malone, H.O., June 22d 1840 ; 2 on that street, " near to " the close Swin. S09 and Bell's Notes 209. named, and the Court may have 4 Alison ii. 268. — Geo. Clarkson considered the proximity of the and Peter Macdonald, H.O., May closes and the fact that the street 8th 1829 ; Bell's Notes 210. was the same street, to have been 6 Alison ii. 262, 263, and cases sufficient certification of the loom, of Wilson : Logue : Skelton : and the words " near to " being applic- Fawns and others there. — Some- able to either close. times this turns upon a question of 1 Jane Chapman or Tnmbull and fact. Where the locus was de- Jane Somerville, Glasgow, April scribed as " the Fair Stead or piece 30th 1857; 2 Irv. 622 and 29 So. " of ground on which Si James' fair 346 Locus. Case of scene of offence changed by struggle. Prosecutor may take an alternative latitude. "Near," or "in " the near vi- " cinity of." Question whether this includes place some hundred yards oft in same line of street. Where neces- sary, greater latitude may be taken. INDICTMENT. has truly iDeen commenced at the place specified, and has only been continued to the adjoining place, by the parties passing from one spot to another in the course of a struggle or from some similar cause (1). But the prosecutor has it always in his power to prevent the risk of miscarriage, by taking an alternative latitude, to cover any slight variation between the libel and the proof, as by adding the words " or near," or " in the near vicinity of" (2), to the word " at," or the word "in" (3). But under these words he cannot prove a crime committed some hundreds of yards off in a different street, although the street in which the crime did take place is in a con- tinuous line with the street libelled (4). On the other hand if the streets were in the same line, and though bearing different names, were stni both generally known also by the name given in the libel, this might be suffi- cient to entitle the prosecutor to a conviction (5). But in all cases where there is a manifest difficulty in being certain as to the exact locus of the crime, a still further alternative latitude will be allowed than can be embraced in the words " or near," e.g., " or elsewhere in the said "parish to the prosecutor unknown," or in some cases it may even be competent to say generally, " or at some other place to the prosecutor unknown." Where the accused got possession of his illegitimate child, and murdered it by suffocation while carrying it across the " was held," in the parish of Kelso and shire of Eoxburgh, and it tur- ned out that one comer of the fair stead was in the parish of Eoxburgh, the Court declined to lay it down as law that the charge was defec- tive, and left it to the jury to de- termine whether there was any error in the substance of the aver- ment.. — Matthew Daly and John StBwart, Jedburgh, Oct. 6th 1842 : Bell's Notes 209. 1 Alison ii. 263, 264 and cases of Macaffie and others: and Bruce and others there. 2 It appears to have been held that the words " in the vicinity of " were too vague, without the word "near." See Alison ii. 273, case of Barling there. 3 Kob. Henderson, H.O., Nov. 10th 1836; 1 Swin. .316, (Lord Justice-Clerk Boyle's charge). 4 Peter Eice, Perth, Oct. 5th 1838 ; 2 Swin. 191 and BeU's Notes 208. 6 Alison ii. 261, case of Bico there. INDICTMENT. 347 country, a mimlDer of roads and places were mentioned, Locus, and the murder was said to liave been committed at one or more of them, the particular place or places being unknown, or at some other place or places in or near the parish of Brechin, and in the shire of Forfar, to the prosecutor unknown. The charge passed without objec- tion (1). This rule applies in cases of embezzlement (2), reset Embezzlement. of theft (3), pocket picking (4), crimes committed pioking°orim6s at sea (5), subornation of perjury (6), and the like. ^'^s^_a, suboma- Also, in the case of thefts of goods on their way from Theft of goods one place to another (7). But in such a case, where the ^hereoarfer thief is the person to whose custody the goods were en- the thief, place trusted, care must be taken to specify the place where must be speoi- they were delivered to him (8). Latitude is also allowed *^*' in the case of theft of domestic animals, which may have Theftof domes- strayed before they were taken (9), or may have been " *"™* ^' stolen by a person hiring them, in which case it is, im- possible for the prosecutor to know where the gmlty 1 Jas. Bobertson, Perth, July there. — Thos. Murray, H.O., Feb. 28th 1850; J. Shaw 447. 16th 1857; 2 Irv. 602 aud 29 So. 2 Jas. Mitchell, H.C., March 11th Jur. 210. 1839 ; Bell's Notes 213.— Will. 6 Eob. Walker, H.C., March 19th M'Gall, H.C., March 13th 1849 ; J. 1838 ; 2 Swin. 69 and BeU's Notes Shaw 194.— John Eae, aC, May 197. 16th 1854 ; 1 Irv. 472. 7 Alison ii. 271, and cases of 3 Alison ii. 269. — Will. Campbell MacaUum : Maokinnon : and Baird and others, Glasgow, April 22d there. — Geo. Gilchrist and others, 1822; Shaw 83.— Mary Christie or H.C., July 13th ISSl ; Bell's Notes , Mackintosh, H.C., Jan. 4th 1831; 212. — Jas. Dougherty and Edward Bell's Notes 213.— Jas. Wilkinson Prunty, Glasgow, Sept. 29th 1824; and Susan Maomillam orM'Cuilkan Shaw 123. — As regards Post-offloe. or Wilkinson, Perth, Sept. 30th offences, see 7 Will. IV. and 1 Viet 1835 ; 13 Shaw's Session Cases 1181 u. 36 § 37. and Bell's Notes 213. 8 John Gibson, Deo. 27th 1842 ; 4 Alisonii. 270. — Peter Maogeown 1 Broun 498 ajid Bell's Notes 211. and H. Cavan, Perth, Jan. 19th 9 Geo. Edgar and John Toung, 1822 ; Shaw 65.— AUan Maclean H.C., Feb. 4th 1828 ; Syme 313.— and John Macdougall, Inverness, Will. Nicolson and Neil Bethume, April 21st 1837 ; Bell's Notes 212. Inverness, Sept. 22d 1836 ; 1 Swin. 5 Hume i. 483, 484.— ii. 217.— 262 (Indictment), and BeE's Notes Alison ii. 272 and case of Steel 212. 348 INDICTMENT. Locus. purpose was formed and carried out (1). Thefts of fish Theft of fish from nets, or nets themselves, are cases where latitude from nets. ^^ statement of place is also allowable, as the nets might have drifted before they were stolen (2). And the same Theft of found rule may apply in the case of theft of a found article article- where it may be difacult to specify the place of the change of the innocent possession into felonious appro- priation. Indeed, in such a case, a very consider- able latitude is reasonably allowable (3). In forgery Cases of and incendiary letter cases, the act of forgery or writing inoln^ary being held insufficient of itseK to warrant any punish- letter. ment, the prosecutor is not tied down to state accurately the place of the forgery, or of the writing of the letter, provided he specify the place where the document was Latitude some- ^ged or uttered (4"). Even in the case of uttering con- times pennissi- ..^' ■•■,-, r. i He as to utter- siderable latitude may be permissible, as, tor example, "'^" where the accused is charged with having posted the forged writing, the prosecutor, if he cannot prove the actual posting, may take such a latitude as may enable him to prove his case by proving the reception of the forgery by the person to whom it was addressed (5). On ^Loe^^fcst *^® other hand, in cases of bigamy, the place of the first marriage marriage must be specified (6), but even in this case a fair latitude may be allowed (7). 1 Bob. Sardista alias Chas. and cases of Fraser: Edwards: Brookes, July 22d 1842 ; Bell's GemmeU : and Eennie there.— Ali- Notes 211. son u. 271, 272.— Alex. Humphreys 2 John Huie, Inverary, Sept. or Alexander, H.C., April 29th, 10th 1842 ; 1 Broun 383 and Bell's 30th, and May 1st 1839 ; 2 Swin. Notes 212. 356 and Special Eeport, and Bell's 3 John Smith, H. C, March 12th Notes 213. 1838 ; 2 Swin. 28 and Bell's Notes B Jas. Fairweather, H.O., Deo. 198. 2d 1861 ; 4 Irv. 119. i Hume ii. 214, 215, and cases of 6 Alison ii. 273. — John Braid alias Campbell : Eaybould : Herries : Mac- Baird, Feb. 24th 1823 ; Shaw 98. affee: Eeid: Brown: and Brown 7 John Armstrong, H.C., July and M'Nab there, and case of Mao- 16th 1844 ; 2 Broun 251. neil and O'Neil in note 1.— ii. 217 cniue. INDICTMENT. 349 Crimes involving a tract of time, such as rebellion, Locns. conspiracy, mobbing, enticing men to enlist in foreign Crimes invoiv- service, and the like, where the offence is continued dur- ume^'^" ing a series of acts, and possibly "with numerous changes of scene, are also cases where the libel may give a more general statement of place than is ordinarily allowable (1). And the same indulgence will be given to a reasonable Eepeated extent in cases of repeated crime, such as incest. In such a case the prosecutor if he libel particular acts, will also be allowed to add a general statement of a continued incestuous cohabitation, the particular places of its com- mission being unknown (2), And, on the same principle, Concealment in cases of concealment of pregnancy, it is sufficient if the prosecutor set forth the place of the birth, and aver the previous concealment in general terms, without noticing the various places at which the accused may have been during the continuance of the> conceal- ment (3). If the circumstances of the discovery of a crime make Ciro'imstanoes . ■' of discovery it difficult to fix the place of its perpetration, the same making lati- allowance will be made. For example, in a case of " e^^eoesEary. murder, the place where the body is found may be far from the place of the murder (4). But, in every case, Court will pre- the allowance to be made is in the discretion of the Court, latitude. A great latitude will not be allowed, unless it is thought reasonable in the particular case (5). Where there are several acts libelled, which together Failure to libel make up the offence charged, as where a forged docu- Lt'essenS to completion of offence fatal. 1 Hume ii. 217, 218, and cases of 3 Hume ii. 218. Cameron : and Stirling and others 4 Alison il. 273. — Thos. Braid there, and case of Macgibbon in and Mary Braid or Morrison, H.C., note 2.— Alison ii. 274, 275.— Thos. Jan. 27th 1834 ; 6 Sc. Jur. 220 and Whitfield and others, H.C., July Bell's Notes 214. — Mary 'Wood 28th 1843 ; 1 Broun 609. H.C., Nov. 7th 1856 ; 2 Irv. 497 2 Hume ii. 218, 219, and cases of and 29 Sc. Jur. 5. — Margaret Han- Fraser: Nioolson and Maxwell: nah, H.O., Deo. 17th 1860 ; 3 Irv. 634. and Haitly there. — ^Alison ii. 274, 5 Daniel Fraser, Glasgow, Sept 276. 26th 1861 ; 4 Irv. 99. 350 locus. But place of subsequent results of offence not essential. Where locus of crime changed dur- ing commis- sion, mistake in new locus fatal. But new hats need not be specified, "adjoining " house " enough. Places may be set forth in inventories. " Time and " place above " libelled." Not necessary to repeat time and place. Alternative charge and alternative statement of places still competent to say " place " above libel- » led." INDICTMENT. ment is given to an agent that he may utter it, the in- dictmentwill he irrelevantunlessthe place where the com- pletion of the offence took place is set forth (1). But if the place of the completion of the offence be given, the place where subsequent consequences take place need not be set forth. Thus, in a case of murder, it is sufficient to say that the deceased " immediately or soon thereafter "died," though his death may have happened at a different place from the offence (2). In the case of a continued crime, such as an assault, the locus of which is changed by the flight of the injured party, into a house, where he is followed and again assaulted, if the description of the second locus be incorrect, no proof in regard to it will be allowed. And this holds, if the description be misleading, even though it be unnecessary, and the words " an adjoining house " would have been sufficient without any specification. Nor will the prose- cutor be heard to say, that having described the locus of the commencement of the crime correctly, an error in the description of the place where it was continued is unim- portant (3). Where a great number of criminal acts are to be libelled as having been committed at different places, the particular places may be referred to as set forth iq inventories.* The statements of time and place having once been made, it is not necessary to repeat them at length, if there is occasion to refer to them again in another part of the Hbel. Such words as " then and there," or " time above " libelled," constitute a sufficient reference to the previ- ous statement. Where two crimes were charged alter- natively, and the first was libelled as committed at one 1 John Speirs and others, H.C., March 25th 1836 ; 1 Swin. 163 and BeU's Notes 206. 2 John Stewart and Catherine Wright, July 14th 1829; Bell's Notes 209. — See also the case of David Walker, Stirling, Sept. Bd 1836 ; BeU's Notes 209. 3 Jas. Cairns and others, H.C., Dec. 18th 1837; 1 Swin. 597 and Bell's Notes 207. * Vide 377. INDICTMENT. 351 or other of two places, while the alternative charge "Time and stated the locus as " place above libelled," these words "libelled." were held to embrace the whole statement of place made in the previous charge (1). On the other hand, in a case of But where assault and robbery, where several places were libelled arsTverai'^'^^^'^ in the charge of assault, coupled together by the words places, robbery " as also," and the robbery was said to have been com- "th?nanl mitted " then and there," the locus of the robbery was Inguffig-ent^'^ held insufficiently described, there being no statement that the particular place of the robbery was unknown to the prosecutor (2). And where the accused was charged wbere narra- with assaulting a person in Gallowgate Street, dragging focas^ohanged* him into Barrack Street, throwing him down, and " then || *^" ^^^ " and there " robbing him, the charge of robbery was ceded by held to be confined to Barrack Street (3). Where the 'ione^pi^oe. charge is continuous, as in a case where the birth of a Where charge child and its immediate murder are detailed, the words words'^'Mmme- "then and there," or "immediately or soon after the i"soonSter" " birth of the said child," are quite sufficient to couple sufficient to the act of the murder with the time and place of the time and place, birth. Again, where two alternative modes of com- where charges mitting the same offence are charged, the words " then alternative, "and there," in the latter alternative, sufficiently refer "there "refers back to the statement of time and place at the outset of pface!°°"^'"* the first charge, although other places have been men- tioned in the narrative of that charge. Thus, where the 1 Will. Brown and others, Nov. " any part of the description of the 12th 1832 ; Bell's Notes 211 and " streets " in the specification of tho 5 Sc. Jur. 112. — Arch. Wallace second , assault, and David Dalziell, E.G., July 2 Jas. Gilchrist and Mary Kee- 20th 1857 ; 2 Irv. 699 and 29 Sc. gan, Glasgow, Dec. 28th 1859 ; 3 Jur. 577. -The following occurs in Irv. 517 and 32 So. Jur. 157. (The Lord Justice Clerk Hope's MSS. in rubric states the objection to have theoaseofEuphemiaMuirandothers, applied to the charge of assault Glasgow,Dec.23dl841,the indictment whereas it applied to that of rob- ot which will be found in 2 Swin. 634 : — " Court held, and Lord Mao- 3 John Boss, Glasgow, Sept. " kenzie stated to jury, that the 1839 ; Bell's Notes 208. " 'then and there' applied all or 352 INDICTMENT. "Time and accTised was charged with giving birth to a child at a "1^^1117^ certain time and place, and thereafter throwing it from a window, so that it fell on an outhouse in another street, and then proceeded to charge alternatively, " or you did then and there," &c., the objection that the word " there " must be held to apply not to the place first set forth, but to the other street, which had been last mentioned, was overruled (1). New charge, The absence of any reference to a previous statement ^Sifelpr°ss of ti™e and place may be fatal to a charge. Thus, in a reference to case of theft and resct, though it was obvious that the irrelevant. ' meaning of the charge was that the reset had followed instantly on the theft, it was still held fatal that the prosecutor did not state any time in connection with the charge of reset (2). The words "time above " libelled " would have obviated the objection. But But where only on the other hand, where in charging one crime, an modeoTthr* alternative mode of commission is libelled, without same offence is there being a formally distinct and separate narrative, charged, the . first statement the Statement of time at the commencement may be piacemay held to Override the whole. Thus, where the accused Triioie^^ ^^ "^^^^ charged with stealing a man's watch from his per- son at a certain time, and the libel added, " or did all " and each or one or more of you, within or near the " said common stair or entry, wickedly and feloniously " steal," &c., the said watch, the property of, &c., " the " said watch having fallen from his person or been " otherwise left there ;" it was held that treating the libel fairly, the first statement of time applied to the whole charge (3). In another case, after charging a woman with deserting her child at a time and place, 1 Ann M'Que, H.O., Feb. 20th 3 Mary Eeid or Whiteside and 1860 ; 3 Irv. 552 and 32 Sc. Jur. others, H.O., March 3d 1856 ; 2 Irv. 478. 393.— It would undoubtedly have 2 Bob. Wyllie v. Agnes Richard- been better to have used some such son, Glasgow, April 26th 1820; words as " time above libelled." Shaw 49. INDICTMENT. 353 and leaving it exposed to die, the libel proceeded, " or " Time and " at all events you did wilfully," &c., without any new » libeixed/^" statement of time and place. The charges, though objected to on other grounds, were both sustained, it being held that, each of them was a good charge (1). And where two acts make up the one crime charged, where two and the fair reading of the charge is that they were S^lonSe simultaneous, the Court will not necessarily reject an in- one offence, dictment because the act which happens to be last stated outset may has not before it a statement of time :and place. Thus, in ^^oi"?* *''* a case of culpable homicide, where two parties were involved, one by leaving his horse and cart with- ' out any one in charge of it, and the other by furiously driving past the cart, and so startling the horse and making it run off, though the charge did not say spe- cifically that the furious driving took place at the same time that the other horse had been left alone, the Court held that the whole charge must be read together, being given as a continuous narrative, and that its fair mean- ing was that both the faults being simultaneous pro- duced the injury (2). The form of the statement of facts alleged as inferring Modus. guilt of the offence(s) and aggravations charged against the accused falls now to be noticed. It will conduce to statement of clearness to separate as far as possible the observations ^e'noe and to be made upon the mode of stating the substantive aggravations. charge from the question of aggravation. In many cases the statement of the modus begins Preliminary with a preliminary narrative, for the purpose of making the subsequent details of the criminal act intelligible, or of making the circumstances to be detailed infer the guilt of the crime charged. For example, in cases of culpable homicide it is very common to find a narrative 1 Elizabeth Kerr, H.O., Dec. 24th This case probably affords an in- 1860 ; 3 Irv. 645. stance of a greater relaxation of 2 John Eoes and others, Inver- strict rule than would be held per- ness, April 14th 1847 ; Ark. 258. — missible at the present day. Z 354 INDICTMENT. Mop™- at the outset of the narrative, and before the state- ment of time and place, setting forth that the accused occupied a particular position, or entered into a particu- lar contract, and that it was his duty to do certain things, or to observe certain precautions, this being fol- lowed up by a statement of the time, place, and mode Mode of distin- of the offence. "Where such a preliminary narrative is guishiDg pre- ■*- litninarynarra- givcn not merely to make the charge intelligible, but to statemeu't of ^^^ forth Certain things to be facts which, combined offence. -^pitij |;jjg circumstances to be averred, constitute the accused's guilt, it is usual to indicate the transition from the preliminary statement to the direct charge which sets forth what the accused did, by such words as — " YET NEVEETHELESS you did upon the 5th day," &c. Charge to be The statement of the charge against the accused must considered in -i -jj-j. i. j^ i. n-i relation to be considere.d m two aspects ; nrst, as regards its con- t?ma\j'i°° ^'"^ sistency with the afBrmation of the accused's guilt at the commencement of the minor proposition, and Narrative must secoud, in its relation to the major proposition. First, withaffirma- then, the charge must be consistent with the affir- *"'°' mation at the outset of the minor proposition (1). If two crimes be libelled only alternatively in the afi&rmaf- tion, it will not do to detail them cumulatively in two separate narratives in the description of the modus (2). If a distinct narrative is giyen as to each, the narratives must be separated by a disjunctive as " or otherwise." "Where several persons were charged in the affirmation as guilty of both and each or one or other of the crimes charged, while the facts set forth as applicable to some of the accused implied guilt of only one of the offences charged, the libel as against them was found relevant only as regarded that crime (3). 1 Hume ii. 181. 185. — In reference to this matter, it 2 Michael Hill, H.O., Jan. 9th must be mentioned that till recently 1837 j Bell's Notes 189. this rule was not so strictly carried 3 Will. EanMne and others, out In the case of statutory crimes Glasgow, April 1831 ; Bell's Notes as it now is — vide 330, 331. INDICTMENT. 355 As regards the relation of the narrative to the major Modus. proposition, the first requisite is, that the charge set Narrative must forth species facti relevant to support all the crimes support an"° charged in the major proposition, and any charges in o"mesm the major not so supported, will be struck out (1). But But where one this does not mean that where one charge in the major t^n^|t°an' contains an alternative — as where in a case of forgery alternative in the major speaks of a "bill of exchange or other obli- tivemaybe " gatory writing '' — that the narrative may not be con- ^^™'^'^- fined to one thing. The general description of the major may be confined in the minor, just as when a coining statute makes it an offence to possess a die, or a press, or a cutter, the full guilt of the Act is implied in a charge that the accused possessed any one of them. Thus, in a case of forgery, the objection was repelled, that while the major spoke of uttering " a bill of ex- " change or other obligatory writing," the narrative men- tioned only a bill of exchange (2). It must also be statutory observed that statutory offences form an exception to exceptions to the rule above stated. "Where a section of a statute is sectiol being quoted in the major, setting forth several crimes, it is in major, usual to quote the whole section,* though facts applica- ble to one of the offences only are to be set forth in the narrative. The next requisite is, that the statement of the modus Narrative must come up to and necessarily infer the crime charged (3). charged™^ Consistency with the major proposition, and sufficient Requisites are specification, are the two things necessary to this end. w™h major First, as regards consistency. Of course, if what is dettu"*^"''''* charged in the narrative have no relation to the crime named in the major, the whole indictment is irrelevant. But even where it has a direct relation to it, there are 1 Jaa. Chisbolm, H.C., July 9th 2 John Eeid, H.C., Jan. 8th 1842; 1849 ; J. Shaw 241. (The rubric of 1 Broun 21 and Bell's Notes 186. this report is misleading).— Will. 3 Hume ii. 184, case of Yorston Cowan, Ayr, Oct. 1st 1862 ; 4 Irv. and others there. 213 and 35 Sc. Jur. 2. • Fide 325. 856 INDICTMENT. Modus. Where a par- ticular mode is of the essence of offence, there must be an allegation that this -was the mode. In statutory offences the words of the Act must not be altered. many points in which particularity is necessary to ren- der the charge relevant. For example, if the essence of a crime consist in an act having been done in a particular way, the charge is not relevant, unless it set forth that the act was done in that way. Thus, the essential characteristic of stouthrief being that pro- perty is taken by masterful violence, a minor proposition which did not state that the property carried off was " masterfully " taken, but only " wickedly, feloniously, " and theftuously," was held irrelevant, and the charge was passed from (1). The case of statutory crimes affords the best illustration of this rule, the slightest variation by omission or addition, sometimes even of a word, or the substitution of one phrase or word for another, being often sufficient to render the whole indictment irrelevant. Thus, where a statute made it an offence " knowingly " to possess certain articles, the omission of the word " knowingly " in the narrative was held fatal to the charge (2). Again, a statute which enacts that " if any person shall wilfully, maliciously, " and unlawfully shoot," &c., is not properly libelled on by a narrative which substitutes other words, such as " wickedly and feloniously " (3). Also where a statute made the possession of certain articles " without lawful " excuse " to be a crime, the objection that the libel used the words " without lawful authority," caused the prosecutor to move that the diet be deserted (4). In a 1 Thos. M'Gavin and others, Stirling, April 25th 1844 ; 2 Broun 146. 2 John Anderson, H.C., Deo. 14th 1846 ; Ark. 187. 3 Jas. Affleck, H.O., May 23d 1842; 1 Brour. 364 and Bell's Notes 191. 4 John Eobison and Margaret Camon, H.C., May 17th 1843; 1 Broun 653 and Bell's Notes 191. — In the case of John Graham and others, Dumfries, Sept. 29th 1842, the words " or causing the same to " be delivered or tendered," were struck out, not being in the statute libelled on (Lord Moncreiff's MSS.) And in the case of Will. Mackendry and others, Ayr, April 19th 1859, the substitution of the words "three " or thereby " for the statutory words "three or more," was held incompetent.— Lord Ivory's MSS. INDICTMENT. 857 poaching case, the words " armed with a gun or guns, Modus. " or other offensive weapon or weapons," in the narra- tive, was held irrelevant to infer guilt under one section of the poaching statute libelled on, which spoke only of entering land with " any gun, net, engine, or " other instrument, for the purpose of taking or destroy- ing game," (1). And in the same case, that part of the narrative which charged that the accused did, " all and " each, being to the number of three together, or one or " more of you," unlawfully enter land to destroy game, was held irrelevant under the statute libelled on, which spoke only of "persons to the number of three or more " together." (2). If the charge had said they did all and each, or one or more of them, " in company with other " persons to the prosecutor unknown, being to the num- " her of three or more together, unlawfully enter," &c., it would have been relevant, (3). But as the charge was expressed, the words " or one or more of you " were a negative alternative of the words " being to the number " of three or more together." A charge under a statute enacted to prevent malicious obstruction of railways was objected to on the ground that, while the Act spoke of doing something so as " to obstruct any engine or car- " riage, using any railway, or to endanger the safety of "persons conveyed in or upon the same," the charge only set forth the placing of a stone on a railway with the intent to obstruct a train, and that it would have done so, and have endangered the lives of the passengers by that train, had it not been removed. The want of a substantive averment that danger was incurred by any one was held fatal (4). 1 Malcolm M'Gregor and others, Perth, April 28th 1842; 1 Broun Perth, April 28th 1842; 1 Broim 331 and Bell's Notes 186. 331 and Bell's Notes 118. (The 3 Eob. Henderson and Jas. Blair, charge was cumulative under 9 March 12th 1830 ; Bell's Notes 196. Geo. IV. c. 69, §§ 1, 9. The words —Duncan Stewart, Perth, April used were applicable to a contra- 1841 ; Bell's Notes 196. veution of the 9th section, but not 4 David Miller, H.O., July 24th to a contravention of the 1st.) ' 1848 ; Ark. 625. 2 Malcolm M'Gregor and others, 358 INDICTMENT. MoDua. These may sufGtce as instances of cases in which the Narrative may act done is not descrihsd consistently with the major with ma^OT, by proposition. But the narrative may further he incon- fecta^IIToposi- sistent with the major proposition, by failing to describe tioninwhioh the accusod as having been in the position required by the terms of it. Where a statute declared that any cre- ditor of a bankrupt who was guilty of false swearing in any oath emitted under the Act, should be liable to a prosecution for perjury and to forfeiture of his dividends, a charge was held not relevantly laid on the statute, be- cause it did not state substantively that the accused was a creditor of the bankrupt (1). And, in another case, where the charge was fraudulent concealment of his effects by a bankrupt, tlie libel was held irrelevant be- cause it did not directly say that the accused was the proprietor of the articles concealed (2). Narrative must The narrative must not only be consistent with the not go beyond . ... • i ^ major proposi- major proposition, by stating the charge so as to corre- '°°' spond with the major ; it must also be consistent with it by confining the charge within the limits covered by the major proposition. It is not relevant in a charge of fire- raising, which applies only to certain kinds of property, to aver that the fire consumed movable goods belonging to the accused, there being no allegation of intent to de- fraud insurers, or the like (3). Again, theft not being an ordinary act of a mob, it is not permissible in a charge of mobbing and rioting to state that the mob carried off ar- ticles " theftuously," there being no charge of theft in the Euiemost major proposition (4). The rule is always most strin- stringentiy ap- gently applied in the case of statutory offences. In a tory cases. night poaching case, the words "or were in the near " neighbourhood of the said lands," were struck out, not 1 Hatt. Steele and Eobt Smellie, 3 Dan. Black, Glasgow, Deo. 23d Feb. 10th 1823; Shaw 96. 1856; 2 Irv. S75. 2 Eobt. Moir and John Moir, 4 John Harper and others, H.O., H.O., Deo. 6th 1842; 1 Broun 448 Nov. 21st 1842; 1 Broun 441 and and Bell's Notes 186. Bell's Notes 110. INDICTMENT. 359 being justified by the section of the statute which formed Mopua. the basis of the prosecution (1). And where the accused was charged under a poaching statute with being at a certain place, and with certain instruments, " for the pur- " pose of taking or destroying game or rabbits," the objec- tion that the section of the statute did not authorise a charge applicable to rabbits was sustained (2). In an- other case, the words " wickedly and feloniously " were ordered to be struck out as not being in the statute libelled on (3). But where the same matter is the ground of a charge under a statute and at common law, it has been held that the rule applies that a separate alternative is not necessary for each charge,* and as a corollary from this it has been held that the introduction of the words " wickedly and feloniously" into a minor proposition fol- lowing on a charge of guilt, both under a statute and at common law, was not objectionable, although these words were not in the statute (4). And such words as " wick- Where statute applies com- " edly and feloniously " are competent, though they do mon law term not occur in the statute, where the offence is one not |jer°it^^words'of purely statutory, but is constituted by the statute apply- style generally ■"^ ■' '' ' '' , used in oonnec- ing a common law expression — such as " steal,' — " em- tion with that " bezzle," or the like, to the acts which are specified as moniaw""™' punishable by the statute. Thus, in Post-office thefts, charges, are sr J ' ' competent. embezzlements, &c., the words "wickedly and feloniously" are invariably employed. While the rule is thus precise that the narrative must Competent to not outstep the bounds prescribed to it by the major pro- terai droum- position, it is nevertheless competent in many cases to are^mrtT^'ri ffestae. 1 JohnEeidandothers, Jedburgh, 4 John Macleod, Inverness, April April 25th 1836; 1 Swin. 202 and 28th 1868 ; 3 Irv. 79 and 30 So. Jur. Bell's Notes 233. 621. A similar indictment passed 2 Mitchell y. Campbell, H.O., without objection in John Johnston, Jan. 6th 1863; 4 Irv. 257 and 35 H.C., March 12th 1845; 2 Broun Sc. Jut. 159. 401. — See also John E. Murdoch, 3 John Anderson, BLC^ Jan. 11th Perth, May 2d 1849; J. Shaw 229 1847 ; Art 220. (indictment). • Vide 369. 360 INDICTMENT. Modus. A clause of statute may be founded on narrativfe, as bearing on the charge actually made. Use of expres- sions which might import a different offence. set forth collateral circumstances, even though inferring offences not libelled in the major proposition, when this is done merely as part of the narrative of the res gestw of the crime actually charged. For example, it is some- times necessary to found upon one clause of a statute, although a competent charge under that clause alone cannot be made, in order to make a charge uhder an- other clause which depends upon it intelligible. Thus, where the accused was charged with a contravention of the night poaching Act, and with assault, and the objec- tion was sustained that the Court had no jurisdiction to try the poaching charge, it not being a third offence, the report bears that the charge of poaching was passed from " as a substantive charge," thus leaving it in the libel as part of the narrative applicable to the assault (1). And, in a similar case, it was expressly held, that as the poach- ing charge was stated only in connection with the charge of assault, that an objection to the relevancy was not well- founded (2). Again, a charge will not be held irrelevant merely because there are phrases in it which have some appearance of connection with a different charge from that in the major proposition. Thus, where in a forgery case the indictment in the narrative of the uttering con- tained a statement that the accused, by falsely and fraudu- lently representing that he was a relation of the pretended drawer of the forged bill, induced a bank agent to pay him the proceeds of the bill, the Court holding this to be mere narrative, and not a substantive charge of falsehood 1 David Bell, Perth, April 25th 1850; J. Shaw 348.— See also Thos, Thompson, Perth, April 14th 1831; Shaw 219. 2 John Macnab and others, H.C., March 14th 1845 ; 2 Broun 416. Al- though the report doesnot expressly state the fact the same decision was pronounced in the case of Bob. Eowet, Ayr, April 27th 1843; 1 Broun 540. The late Lord Justice- Clerk Hope's MSS. contain the fol- lowing in reference to this case : — - "Mr Logan stated that charge of " night poaching not competent as " a separate charge. Objection sus- " tained. Indictment found goodas "indictment for statutory assault " and simple assault. The state- " ment in minor taken as narrative " introductory to charge of assault." INDICTMENT. 361 and fraud, refused a motion made foi the accused, that Mopm the passage should be struck out before the interlocutor of relevancy (1). On the same principle, where the pro- secutor thinks proper to charge a trifling case of forgery under the inferior denomination of falsehood, fraud, and wilful imposition, it is no objection to the narrative that it truly describes the uttering of a forgery. Lastly, in a case of rioting, the objection was repelled that the facts set forth constituted the crime of mobbing, as the indict- ment charged that the acts were done by a mob, the Court holding that as a number of persons could commit a riot, they could be relevantly charged with that crime, although they were spoken of as a mob (2). It is cpmpetent also to set forth facts prior to the of- Sometimes « 1 . 1 . . 1 competent to fence, where the prosecutor proposes to prove such as set forth facts evidence of intent or the like. For example, where a °^ earlier date ^ ' to prove in- libel for embezzlement charged that the accused at a tent. certain date was unable to account for the sums due to his employers, and that they agreed to give him time, and to continue him in their employment on the ex- press stipulation that he should remit weekly the sums he received from customers, and then set forth various acts of embezzlement, this preliminary narrative was not objected to, though it was strenuously maintained that the libel was irrelevant in other particulars (3). Again, where, in a charge of forgery, the narrative of the uttering set forth that the accused uttered the forged document to two agents in succession, that they might produce it in a process, and that they 1 Jas. More, Glasgow, May 3d This case illustrates the advantage 1845 ; 2 Broun 442. — See also Whit- of avoiding the use of a term which ton V. Drummond, H.O., March 12th has a fixed signification in law in 1838 ; 2 Swin. 62 and BeU's Notes a charge of a different kind. The 17, Lord Moncrieff's opinion, and objection received a species of plau- Thompson Aimers, Ayr, Sept. 24th sibility from the use of the word 1857 ; 2 Irv. 723. "mob." 2 John M'Cabe and others, G18.S- 3 John Eae, H.O., May 16th gow, Jan. 12th 1838; 2 Swin. 20. 1854; 1 Irv. 472 circumstances. 362 INDICTMENT. MoDua. declined to act and returned the document, and then set forth that the accused succeeded in getting a third agent to take up his case and to produce the docu- ment in the process, the Court, on the first two charges being objected to as not containing sufficient to consti- tute completed uttering, held that these charges might be left in, not as substantive charges, but as part of the history of the attempts to use the document, and that they must stand or fall with the charge of successful Collateral uttering (1). Collateral circumstances may also be in- serted. It was held relevant in a charge of mobbing and rioting for the purpose of " obstructing and " deforcing officers," to state that the mob had rescued a prisoner from the officers, although there was no charge of de- forcement in the major, as the allegation was relevant, if proved, to show the purpose of the mob to have been that set forth (2). And in another case an indictment was found relevant without objection, which charged that the mob did " attack and assault" people, although there was no charge of assault in the major proposition (3). But if anything more than mere general assaulting was to be charged, the prosecutor, to be consistent with the practice in such cases, must have charged assault in . the major proposition. Lastly, although, as already mentioned, the burning of the movable goods of the accused may not in the or- dinary case be set forth in a charge which libels fire- raising only, yet an indictment for fire-raising, which sets forth that the mode of applying the fire to the building was by setting fire to certain movable articles, is not irrelevant, because it states these movable articles to have been consumed by the fire (4). A very common instance of the insertion of matter in the narrative, for 1 George "WUson.jun., Aberdeen, H.C., Deo. 19th 1864; 4 Irv. 678 May 1st 1861 ; 4 Inr. 42. (indictment). 2 John Harper and others, H.O., 4 Patrick Anderson, Glasgow, Nov. 21st 1842; 1 Broun 441. Oct. 1st 1861 ; 4 Irv. 95 3 Michael Carrie and others, INDICTMENT. 363 the purpose of explanation, is to be found in those cases Modus. in which local statutes, or regulations by magistrates or others in authority, for the safety of the public, are re- ferred to in cases of culpable homicide or injury to the person by accidents resulting from neglect of precaution. In such cases it is quite usual to insert the regulations in the narrative, either by quoting them or by giving sufficient detail from them, to certify the accused that they are to be founded upon (1). Another instance of stutemont that the insertion of collateral circumstances is that of the in oonoort with accused at the bar being charged with having acted in u^^l^'trfj* concert with others not under trial, thus : — " You the " said John Brown, along with Thomas White, lately " residing at," &c: ; or, " with the co-operation and as- " sistance of, and in company, concert, and agreement " with Thomas "White," &c, (2) This course is often taken where one of the guilty parties turns Queen's evi- dence, or where parties to the same offence are to be tried in different courts, which happens frequently where the offence of one of the accused is a first offence, while his associate has been previously convicted. And this course is also followed where some of the guilty parties have escaped and cannot be brought to trial. For ex- ample, — one individual may be tried under a statute making it a special offence for three or more persons to- gether to do a certain act. And it is sufficient, without naming his associates, to say that he acted " in company " with several other persons to the prosecutor unknown, " to the number of three or more together " (3).' An- X Ezekiel M'HafBe, High CoBrt dictment). of Admiralty, Nov. 26th 1827; 2 Will. Oattanaoh, Perth, Oct. 8yme Appx. (indictment) 38.— Bob. 4th 1838 ; 2 Swin. 189 (indiot- Kaolean, Glesgow, Sept. 2lBt 1842 ; mcnt). 1 Broun 416 (indictment) — Thos. 8 Bob. Henderson and Jaa. Houston and Jas. Ewing, Glas- Blair, 12th March 18,S0; Bell's gow, April 23d 1847 ; Ark. 252 (in- Notes 196.— Duncan Stewart, Perth, dictment).— Peter Galloway, H.O., April 1841 ; Bell's Notes 196. Feb. 24th 1861; J. Shaw 470 (in- 364. nroiCTMENT. Modus. other familiar example of this rule is the case of moh- bing, where the individuals tried are charged with act- ing in concert with the mob. Again, where one of the alleged guilty parties dies before the case is brought to trial, it may be charged against the survivor that he acted in concert with the deceased : " you the said John " Brown, and the now deceased Thomas White, black- " smith, lately residing in or near the village of Castle- " ton aforesaid, both and each, acting in concert, or you " the said John Brown, did," &c. (1). It is not advis- In reference to this matter of statement of colla- ooirateraufr- t^ral facts, it may be mentioned here that it is not cumstanoes advisable to state in the libel collateral circumstances where they are , . , , , •, ■ t , ^ admissible in which can be Competently proved without such a out their being Statement, except where it is proposed to draw in, col- Hbeiied. lateral circumstances as substantive aggravations of the principal charge, in which case, of course, they must be specifically stated., And if the uttering of a forged document is at all analogous to the uttering of base coin, then it was not necessary in the ease above referred to (2) to set forth the unsuccessful attempts to utter, in order to entitle the prosecutor to prove them (3). And in the case of fire-raising above mentioned (4), the state- ment that the movable articles were consumed was quite unnecessary, as the prosecutor was entitled to prove that fact as an incident of the res gestce without any special notice. An illustration of the inexpediency of detailing mere circumstances of evidence is afforded by a case of culpable homicide, where a statement that the accused had received " repeated warnings," &c., as to the danger of his proceedings, was struck out, as being too vague if inserted as an aggravation, but the Court fenced their decision with a distinct reservation of the 1 WiU. Eeid, H.OtNov. 10th and ren, H.C., Nov. 29th 1841 ; 2 Swin. 11th 1858 ; 3 Irv. 235 (indictment). 581 and BeU's Notes 60. 2 Geo. Wilson, jun., Aberdeen, 4 Patrick Anderson, Glasgow,' May 1st 1861 ; 4 Irv. 42. Oct. 1st 1861 : 4 Irv. 95. 3 Jas. Bitchie and Andrew Mor- INDICTMENT. 355 question whether proof might not be allowed of such Modus. warnings as part of the general history of the case, though not detailed in the libel (1). On the other hand the insertion of such collateral facts is in some cases in- ooUaS fact dispensable, in order to entitle the prosecutor to prove sometimes ne- r ' r r oessary to an- them. Thus, where, in a case of wife-murder, the pro- title prosecutor secutor having been allowed, without notice in the libel, ° ^™^^ * to ask a person who had been a servant of the accused, whether she had become pregnant in consequence of adulterous intercourse with him, proposed further to ask whether he had used means to cause her to abort, it was held that the question could not be put, there being no notice of such a charge in the libel (2). Again, where it was proposed to prove in a case of mobbing, that the mob forced a person to take an illegal oath, the inquiry was stopped, there being no notice of it in the libel (3). It is farther necessary that the specification of the Specification charge come up to the crime set forth in the major pro- ™"^[ ^ ^^' position. This branch of the subject has a very wide range. Tor the same amount of specification which is sufiicient for one crime is not so for another. And again, the same crime may demand more elaborate spe- cification in one case than in another. And farther still, a charge may be rendered unspecific by the use of an ambiguous word, or by the omission of a single word, or even by the use of too many words. It will probably afford the best commentary upon the question of speci- fication, after making such observations as are generally applicable to the mode of stating the charge in all cases, to notice briefly the requisites of indictments for the different crimes of which our records afford us ex- amples. The object of setting forth a specification of facts against the accused is two-fold ; first, that he may be, 1 Jas. Finney. H.C., Feb. 14th 3 Jas. Cairns and others, H.O., 1848 ; Ark. 432. Deo. 18th 1837 ; 1 Swin. 597 and 2 Edward W. Pritchard, H.O., Bell's Notes 219. July 3d, 4th, and 6th 1865 ; 6 Irv. 88. 366 INDICTMENT. Modus. sufiBciently informed of what it is that is laid to his Object of speoi- charge, and from which his guilt is to be inferred (1) ; formation'of" and, sscond, that the judge who tries the case may be able Scoinmay *» ^^'^^^^ whether the facts proposed to be proved are be able to de- relevant to infer the guilt of the accused (2). Provided, faoteTf proved, therefore, these facts are unambiguously set forth, the fe^cecharged. ^^^^^ ^°^^ ^^ which the charge is put is not of so great consequence (3), although, of course, most crimes are now libelled according to well established forms, which will be afterwards noticed more particularly. Narrative must The foUowiug are somc of the rules generally appli- essentiaitof ^ Cable to the narrative portion of indictments. In the crime in major. £j.g^ place, the narrative must contain all the essentials of the offence to be charged (4). If an indictment for con- cealment of pregnancy avers concealment only, and omits the other statutory requisite of the child being found Where one part dead Or being missing, the libel is irrelevant. Again, °ates to another where One part of the charge has express relation to an- m^t appeTr other, as, for example, where it is proposed to prove acts from the form of violence, as being committed in pursuance of an ille- gal conspiracy, it is not sufficient that the conspiracy be alleged, and also the violence, there must be an averment that the violence was committed in pursuance of the ille- gal combination (.5). statement of In the next place, the statement of the offence must spedfio."'"^ ^ ^ot ^^ merely a general allegation that the accused com- mitted the crime stated in the major proposition. There must be a reasonable disclosure of the general facts which the prosecutor proposes to prove (6) ; as, for example, that the accused did, with a certain instrument described, 1 Hume ii. 187. and others on same page. — Alison ii. 2 Hume ii. 190, 191, and case of 277, 278. Mackintosh there— Alison ii. 275, 5 Hume ii. 183, case of Simpson 276. in note 2. 3 Hume ii. 184. 6 Hume ii. 190, 191 Alison ii. 4 Hume ii. 182, 183, case of Philp 298, 299. there. — See also case of Campbell INDICTMENT. 367 attack and assault A. B., and strike him " one or more Modus. " severe blows upon the head or other parts of his person, " wherehy he was seriously injured," &c., &c. The amount of specification which is necessary, is different in the case of different offences, as will be afterwards noticed in de- tail. But, although the charge must be specific, it is Competent to 1 1 ■ ■ i> 1 a- tegin with a quite competent to begm the description of the offence general charge, by a general statement, which is afterwards made dis- afterwards ^ tinct. Thus, the libel may set forth that the accused, made specific, being instructed by a bank to receive money, did receive " various payments " of money from " various persons," and " did embezzle the money so paid, or part thereof," &c. This, which would be a totally irrelevant charge in itself (1), is quite competent, provided it be followed up by a specific charge with names and dates, which gene- rally begins, " and in particular," or " more particu- " larly " (2). Nor is it necessary that a general charge of this sort, being solely explanatory, should contain all that is necessary to constitute the crime to be afterwards more particularly set forth (3). And, in one case where it was objected to the explanatory narrative, that by itself it was unintelligible, the judge allowed the words, " and in " particular," at the commencement of the specific charge, to be deleted, and the general and the special charge being thus coupled together, repelled the objection (4). The rule as to specification is sometimes relaxed where Eeiaxation o one crime is charged merely as an incident of another fioati™* where and more comprehensive offence. Tor example, although one crime in order to prove specific assaults against a mob, assault mere incident must be charged separately in the major proposition of °jime'!'''™ an indictment for mobbing, it is not necessary, in such 1 Hume ii. 187, 188, 189, and 3 Patrick T. Caulfield, Perth, Oct. cases of Pairlie : Faa : Baillie and 1st 1840 ; 2 Swin. 522 and Bell's Watson : Maodonnell : Cameron : Notes 190. Stewart : and Dempster there. 4 Eeuben Brooks and Fred. W. 2 John Christie and Jas. Christie, Thomas, Glasgow, Dec. 31st 1861 ; H.O., March 12th 1841; 2 Swin. 4Irv. 132. S34 368 INDICTMENT. Modus. a case, that there should be so elaborate a statement of the charge of assault as would be required in a separate indictment for that crime. It is sufficient to describe the assault at large (1), the rule being, in such a case, where the assault is only described as the act of the mob of which the accused formed part, that the incidental crime of assault depends upon the existence of the mob, and ' that if there was no mob then there can be no conviction of the assault (2). Again, in cases of illegal combina- tion, or conspiracy, where other crimes are charged as re- sulting from, and being part of, the guilt of the conspiracy, it is not necessary that these crimes should be described with the same elaboration as if they alone formed the substantive charge. Thus, in the case of an illegal con- spiracy to raise wages " by means of sending threatening " letters," the letters need not be set forth at length in the indictment, although this would be necessary in a sepa- rate charge of sending threatening. letters (3). Where unoer- The next point to be observed is, that if the prosecutor committea,pro- be not able to specify with certainty the mode in which ntate''modJ ai- ^^ ^'^^ ^^ done, he may state alternatively that the crime ternativeiy. was Committed in one or other of two or more ways, the separate narrative applicable to each being disjoined from the preceding by the word " or," or the words " or other- Mode of stating " wise.'' Again, if there be more charges than one in the in^o^ne UbeT^"' lit'el, thsse must be stated in different forms according to 1 Jae. Thompson and otliera, of greater and less of the same sort. E.G., July 191h 1837 ; 1 Swin. 632 Guilt of mobbing and rioting im- and Bell's Notes 219. plies guilt of breach of the peace, 2 Jas. Parquhar and others, Aber- just as in a case of " hamesuoken, as deen, April 30th 1861; 4 Irv. 28. " also assault," guilt of the greater But where "mobbing and rioting, crime implies the less. But in the "as also breach of the peace,' are case of mobbing and rioting, as also charged in the major proposition assault, the first crime does not ne- ■without a separate statement in the cessarily embrace the second at all. minorproposition, a verdict of guilty Michael Currie and others, H.O., of breach of the peace is a good ver- Deo. 19th 1864 j 4 Irv. 678. diet. The principle of the distinc- 3 Thos. Hunter and others, H.0,, tion is evident. These two crimes Nov. 10th 1837; 1 Swin. 660 and stand to one another in the relation Bell's Notes 62. INDICTMENT. 369 circumstances. Thus, if several distinct crimes are to be Modus. charged cumulatively, whether of the same class, such as Cumulative several acts of theft, or of different classes, such as mur- ° ^'^^^'^' der and theft, the charges are coupled together by some such expression as " Likeas " or " Further." On the other Alternative hand, where the accused is charged alternatively with being guilty of one or other of two inconsistent crimes, they are disjoined from one another by such words as " or otherwise." In a case where a charge is intended to be alternative to more than one previous charge, the form is, "or otherwise, and as alternative to the two " charges above libelled." And where the alternative is intended to apply to one only of two accused, as where two persons are charged with theft, and an alternative charge of reset is made against one of them only, the form is, " or otherwise, as respects you, the said John " Brown." But while this is the rule as regards distinct Not necessary or inconsistent crimes, it is also a well-established rule inmajo?shouid that where several crimes are charged, either cumula- tave separate tively or alternatively, and are such that the same facts are relevant to support them, it is not necessary that there should be a separate narrative applicable to each. It is sufficient if the crimes set forth in the major proposition be relevantly supported by the one story told in the nar- rative (1). And this holds even where statutory and statutory and common law offences are charged together. One minor ohar"es'ma\e proposition which states facts to support both is suffi- stated in one cient (2). And the same rule applies where two different 1 Alex. Macdonald and Duncan 189. — Catherine M'Gavin, H.C., Maodonald, Inverness, Sept. 1835 ; May 11th 1846 ; Ark. 67. — Eeuben Bell's Notes 188. — Jas. Oaims and BrooksandPred. W.Thomas, Glas- others, H.O., Deo. 18th 1837; 1 gow, Deo. 31st 1861 ; 4 Irv. 132.— Swin. 697 and Bell's Notes 189. — Alison ii. 304, 305 contra. Thos. Hunter and others, H.C., Jan. 2 John Robertson, Dec. 26th and 3d 1838 ; 2 Swin. 1 and Special Ee- 27th 1833; Bell's Notijs 188 John port, and Bell's Notes 189.— John E. Murdoch, Perth, May 2d 1849 ; Jones and others, June 22d 1840 ; J. Shaw 229. — John Macleod, In- Bell's Notes 189. — Sutherland and vemess, April 28th 1868; 3 Irv. Maoneil, Nov. 6th 1841 ; Bell's Notes 79 and 30 So. Jur. 621. 2 A 370 INDICTMENT. Modus. Different in- tents may be stated in one narrative. Not competent to cliarge the same act twice on same state of facts. Pormerlyfraud and theft charged cumu- latively on same facts. Form of ex- pressing the felonious cha- racter of. the act. intents are libelled. Thus it appears not to have been held a good objection to a charge of administering drugs with certain intents, which were stated alternatively in the major proposition, that the intents were coupled to- gether in one narrative (1). On the other hand, it is quite incompetent to detail the same act twice and cumu- latively, as amounting to two distinct offences, on the same state of facts. This was held in one case where embezzlement was alleged in two separate charges, and the sums referred to in each were truly identical (2). It is true that in one or two cases (3) a cumulative charge of falsehood, fraud, and wilful imposition and theft has been sustained, where the facts were that the accused by fraudulent devices got the property of others into their possession and then appropriated it. But the Court thought such a form of charge should seldom be resorted to, and in the more recent cases of this class, the charge has been put alternatively only (4). As regards the form of stating the charge, it is usual in all ordinary cases at common law to attach a quality to the acts said to have been done hy the accused, by prefixing words to the charge according to its nature, such as " you did wickedly and " feloniously," — " you did culpably and recklessly." The terms to be used necessarily depend, upon the exact na- ture of the charge ; but the use of some such qualifying expression is now universal, except, of course, in statutory cases where the terms of the Act can alone form the criterion of the quality of the facts which are charged 1 John Stuart and Catherine Wright, June 16th 1829; Bell's Notes 189. 2 Will. Eeid and Thos. Gentles, Stirling, Sept. 23d and 24th 1857; 2 Irv. 704. 3 Margaret Grahame, Glasgow, Dec. 23d 1847; J. Shaw 243, note.— Jas. Chishohn, H.C., July 9th 1849 ; J. Shaw 241. The rubric of this case is misleading, the charge as at first libelled was found irrelevant, but a subsequent charge was sus- tained See J. Shaw 251. — A charge of this sort was passed from on ob- jection in the case of Will. Bobert- Bon, H.C., May 25th 1835 ; Bell's Notes 18. 4 Henry Hardinge and Lucinda Edgar or Hardiuge, H.O., March 2d 1863 ; 4Irv.347 and 35 Sc. Jur. 303. mDICTMBNT. 371 against the accused. It would seem that formerly the Modus. felonious intent of the acts charged was sometimes held Formerly feio- sufficiently implied without a direct averment. Thus, in sometimes'heid a case of murder, the obiection that the indictment did to be inferred ' •' from general not set forth that the accused acted " feloniously," was terms of charge, repelled, the statement that the deceased was " thus mur- " dered by you " being held to iniply that what was de- scribed was feloniously done (1). But this would pro- bably not be held sufficient now. It was observed in a late case, speaking of the words " wickedly and feloni- " ously," that they were " words of great significance and " importance, so much so, that it is difficult to imagine a " charge of murder well laid, where these words are not "used" (2). The force and application of such expressions Words as "wickedly and feloniously" are confined to giving a llJ^JoniouIi™^ quality to the facts libelled. They are merely an asser- do not affect tion that what the accused did, was done with that evil or ciiTr™e°but reckless disposition, which constitutes the difference be- "n ave?men*"of tween a crime and any other act (3). But, if what he is s^iity intent. said to have done, is not set forth specifically and unam- biguously, these words are of no avail to give relevancy to the statement. " The mere use of the words ' wickedly " ' and feloniously ' cannot afiect the corpus of the crime " if the act is not one necessarily criminal " (4). For ex- ample, where a woman was charged with murder, in re- spect she placed her child in a ditch, and "wilfully, " wickedly, and feloniously left it there exposed, in con- " sequence whereof said child died," &c., the difficulty of holding the single word " exposed " to imply murder, was held not to be obviated by the use of the words quoted above (5). Again, the words " use a sword or cutlass," 1 Alison ii. 280, 281, and case of E.G., Nov. Uth 1864 ; 4 Irv. 570 and Clark there. 37 Sc. Jur. 68, (Lord Neaves' opi- 2 ElizabethEerr,H.C., Nov. 26th nion). — See also Michael Hinchy, 1860; 3 Irv. 627 and 33 So. Jur. 34. Perth, Sept. 30th 1864; 4 Irv. 561 3 Jas. Miller, H.C., Nov. 24th and 37 So. Jnr. 24. 1862 ; 4 Irv. 238 and 36 So. Jur. 62. 6 Elizabeth Kerr, H.C., Nov. 26th 4 Mackenzie and others v. White, 1860; 3 Irv. 627 and 33 So. Jur. 34. 372 INDICTMENT. Modus. were held not to constitute a relevant charge though the words " culpably or recklessly " preceded them (1). Special charge Although, in the ordinary case, the charge of art and abfttingtapar- P^rt IS Sufficient to couYict the accomplices of the princi- ticuiar cases, p^i ^ctor in a Crime, and it is therefore not necessary to do more than charge the acts done against all the accused as " actors, or actor, or art and part," it is still usual and proper in certain cases, where the nature of the crime to some extent necessarily attaches its immediate perpetra- tion either to single individuals (as in rape, and bigamy, or the like), or to an undefined and unnamed number of individuals (as in mobbing, conspiracy, and the like), to charge aiding and abetting specifically against those who are said to have been accessory to the offence. A single instance of each may suffice. In a case of rape it is cus- tomary to charge one who assists the actual perpetrator, by stating that he " did wickedly and feloniously aid and " abet the said John Brown in so ravishing the said Jane " Black, by holding her feet," &c., &c., (2). In the case of mobbing, again, which is charged as the act of " a mob, " or great number of riotous and evil disposed persons," the individuals accused are generally stated not only to have been present with the mob, but to have aided and Averment that abetted the mob, in the acts done. It is further not in- wereassociates^ Competent to charge several accused with being associates generally. For example, several persons were charged that they "being* associates, and in concert together, did " all and each, or one or more of you, wickedly and felo- " niously steal," &c. The objection that it was not said for what they were associates together was repelled (3). In point of fact, no averment that they were associates was necessary in order to entitle the prosecutor to prove 1 ThoB. Philips, Glasgow, April 2 Jas. Hughes, Jedburgh, April 23d 1863 ; 4 Irv. 385 and 35 So. Jur. 5th 1842 ; 1 Broun 205. 460. 3 Wm. Olark and others, Aber- deen, May 3d 1869 ; 8 Irv. 409. INDICTMENT. 373 that fact, particularly as all the parties were accused of Modus. being habit and repute thieves. It is a general rule that the party injured by the Naming of per- crime charged must be named and designed (1). And ^i^^^ ^y in the classes of cases to which this rule applies the must be named prosecutor wiU only be relieved from its application laxeVwhere' where circumstances make it impossible for him to ful- prosecutor can- ^ . not give name nl it, as in the case of a murdered person being an un- with certainty. known foreigner, or the body being so disfigured as to be unrecognisable ; or the case of an act of piracy, where names cannot be ascertained, and the like (2). But be- sides the injured party it is often necessary to name other persons. Following the course indicated previ- Euies as to de- ously, the rules as to sufficiency of designation of per- tXe^noto™* sons named will alone be referred to here. The rules as i^ere. to what persons must be designed in the libel, depending as they do on the special nature of each crime, will be noticed later. The following are the essentials in the Eequisites in naming and designing of the injured party, or any other perLons^^ " person whom the prosecutor mentions in his libel. And Error as to in- it may be as well to state here, that while a material fatal to^charge, inaccuracy in the description of the injured party will on''' fata? to*^™ be fatal to the whole charge, a similar error as regards that part to any other person named will only affect that part of the sentiai. charge to which it is essential. Any material mistake Substituting in names, such as putting "John" for "James," or aSother^"" " Aitken" for "Aikman," forms a fatal objection, as it has the effect of making the libel and the proof appear to apply to different persons (3), or of making the charge inconsistent with itself (4). But a mere difference in Different spelling, such as "Harvie" for "Hervey," would pro- gamemmeof bably not be held to constitute a good objection (5). "^o <=ois6- 1 Hume ii. 196, 197.— Alison ii. 3 Turner and others, 20th July 283, 284. 1837 ; BeU's Notes, 207. 2 Hume ii 198. — Alison ii. 289, 4 Thos. Houston and Jas. Ewlng, 290.— Will. Clerk and Janet Gray .Glasgow, April 23d 1847; Ark. 252. or Thompson, Aberdeen, Sept 20th 5 Will. Harvey, 23d Feb. 1835 j 1849 ; J. Shaw 267. Bell's Notes 203. This is consistent 874 Modus. Distinctness dispensed with only from ne- cessity. All reasonable information that can he given must be given. Critical objec- tions will not be sustained. INDICTMENT. Distinctness in stating the designation of parties named is only dispensed with from necessity. And especially where it is necessary to describe the injured party, all the information that can be given must be given. Thus, though it was held competent to libel the murder of a person to the prosecutor unknown, it was held irrelevant to do so without giving some account of the person (1). Critical objections will not be listened to, if a description be given which prevents uncer- tainty as to the identity of the individual referred to. Where the injured party was designed " then and now " or lately gamekeeper to, and residing with Thomas " Walker, Esq., then or recently before residing at Glen- " lyon House," the objection that Mr Walker's present residence should have been given, was repelled (2). Again the treasurer of a friendly society being charged with embezzlement, and the money embezzled being de- scribed only as the property of " the said society, or of " the members thereof," it was held that looking to the fact that the accused was the treasurer of the society, the terms above used were sufficient certioration as to the ownership (3). In similar cases it is not unusual to name some of the members, thus : — " of which John " Brown, a wright, residing," &c., " Thomas White, a " mechanic, residing," &c., " William Green, a stone- " mason, residing," &c., " or one or more of them, and " others, were individual members ;" and to state that the accused did " defraud " (or otherwise as the case may be) " the said society, and the said John Brown, " Thomas White, and William Green, or one or more of " them, and others, the individual members thereof." And in the same way, in cases of fraudulent bankruptcy and the like, it is usual to state the accused's acts to with the rule as to naming the ac- cused in the libel, vide 318. 1 Will. Clark and Janet Gray or Thompson, Aberdeen, Sept. 20th 1849 ; J. Shaw 267. 2 John Bobertaon, Dec. 26th and 27th 1833 ; Bell's Notes 201. 3 Smith V. Lothian, H.C., March 21st 1862 ; 4 Irv. 170 and 34 So- Jut. 467. INDICTMENT. 375 have been for tlie purpose of defrauding certain parties Modus. named, and to add, " and others the lawful creditors of " the said John Brown." On the other hand, any sub- Substantial in- stantial error will be fatal. "Where the injured party ITumJ ^' was described as the child of " Marion Hepburn," and it turned out that, though occasionally called " Marion," the mother's name was "Elspeth Menie," the objection was sustained that no proof in reference to the child of " Elspeth Menie" was competent. It would have been different if the woman had been commonly called " Ma- " rion," for the prosecutor is not expected in any case to do more than give the name by which a person is generally known (1). It is not necessary to state where the person Eesidenoe at injured resided at the time of the offence, if the resi- u^ sufficient, dence at the time of libelling be correctly given (2). '"'iti'o"' gi™s ° J o \ J residence at And in one case of murder, where the sufferer was a time of offence, pedlar, he was described as "having no fixed resi- " dence " (3) It does not form a good objection that the Error in stat- trade of a person named is incorrectly given, if the de- J^^f™*^® ""' siguation be otherwise sufiieient (4) In cases where a Where a cer- certain quality in the injured party affects the nature ^^inj'^e'd ° or heinousness of the offence, as, for example, in as- party consti- rv oil n tutes part of saults on parents, officers of the law, &c., the quality the charge, the must be set forth (5) ; andwhere the nature of an offence, exprefsedTn * or an aggravation attached to it, depends upon the age *''® nan-ativc. of the injured party, as in the case of rape of a child of tender years, the age of the chUd must be set forth, thus : — " Jessie Black, a girl then seven years of age 1 John Ferguson, 16th May 1831 ; 4 Will. M'Gee, Glasgow, Jan. 6th 3 Sc. Jur. 429 and Bell's Notes 200. 1837 ; 1 Swin. ,425 and Bell's Notes See also Dennis Connor and Ed- 202 and 225. — Edw. M'Avoy, Glas- ward Morrison, Glasgow, Sept. 23d gow, Sept. 27th 1837 ; 1 Swin. 546 1848; J. Shaw 5. and Bell's Notes 203.— Jas. Noble, 2 Neil Maeleod, Inverness, April H.C., July 12th 1838 ; 2 Swin. 163 21st 1837; 1 Swin. 496 and Bell's and Bell's Notes 203. When Baron Notes 202. Hiime wrote, this question was still 3 Arthur Woods and Henrietta doubtful : see li. 197, case of Han- Woods, Feb. 26th 1839 ; 2 Swin. nay in note 1. 323 and Bell's Notes 202. p Hume ii. 197. 876 INDICTMENT. Modus. Mode of describing animals and things. Elaborate description unnecessary. Articles, &o., may be set forth in an inventory. " or thereby, or otherwise under the age of puberty." "About the age of puberty" is objectionable, as that may mean beyond puberty, and the whole question of the nature of the offence, or indeed whether there be any offence at all, may turn on this (1). As regards the mode* in which animals or things must be described in the libel when it is necessary to do so, it will suf&ce here to make one or two observations as to matters incidental to the charge. Things which are of the essence of the charge, such as stolen goods in the case of theft or the like, will be treated of under the special crimes to which they apply. In no case is an elaborate description necessary. Such expressions as " a "horse and cart," "a piece of cloth," "a knife," "a " quantity of sulphuric acid," " a wooden box," " a fire " shovel," are constantly used in indictments. Provided the expression used be a well understood term in ordi- nary language, nothing further is necessary. Where the description of the accused's offence requires the naming of a great number of articles, they may be referred to as set forth in an inventory thus : — " The various articles " specified and contained in an inventory hereunto an- " nexed as relative hereto." Indeed, where this is most convenient, from there being an accumulation of charges, the whole incidental facts of a case, such as times, places, articles, &c., may be set forth by inventory. Por ex- ample, the libel in a case of embezzlement may set forth that the accused received for behoof of his employer, from certain persons " whose names are set forth in the first " column of the inventory hereto annexed' and referred " to," . . . . " the sums of money set in the second " column of said inventory against the names of each of " the said persons respectively," . . . " on or about " the respective dates set in the third column of said in- "ventory against each of the said sums respectively," 1 See Rob. Philip, H.O., Nov. 2d 1865 ; 2 Irv. 243 and 28 So. Jur. 1. INDICTMENT. 377 . . . " at or near the places set in the fourth column Modus. " of the said inventory against the said respective dates," he did in a manner and at times and places described embezzle, &c. The inventory itself would be in this or a similar form (1). Inventory referred to in the foregoing Indictment . Fonn of Inventory. First Column. 1. Edward Green, gunmaker, now or lately residing at or near Oolin- ton, in the parish of Colinton and shire of Edin- burgh. 2. WiUiam Black,] grocer, now or | lately residing in [■ Colinton afore- eald. j Second Column. Third Column. il5 4 6 1st September 1858 £8 10 3 2d September 1858, or on some other occasion in the said month of September, the ' particular time being to the pro- secutor unknown. I, Fourth Column. Within the office of the Eoyal Bank of Scot- land, situated in ■ Saint Andrew Square in the City of Edin- burgh. The shop or pre- mises occupied by the said Wil- liam Black as grocer in Colin- ton aforesaid. 3. (and so on.) In cases where writings form part of the essence of Writings must the charge, the writing should be set forth at length in where°of the libel. As regards libels for forgery, this is expressly ^s^""" of dispensed with by statute (2), it being made competent Exception in to describe the document " in such manner as would *°''s«'^y °*^^^- " sustain an indictment for stealing the same " (3). It is stQl, however, very usual in practice to quote the docu- ment fully, even in forgery cases. The stringency of the rule, that the documents must be quoted at length is 1 This ought moire properly to have been inserted when the mode of inserting inventories came to be noticed. But it is thought more advisable to bring It in here, as in point of fact the use of inventories is only a convenient mode of setting forth that which is, In truth, part of the body of the libel. 2 Act 2 and 3 Will. IV. c. 123, § 3. 3 John Muir, Ayr, Sept 14th 1836 ; 1 Swin 286. — Malcolm Mackinlay and David Macdonald, Glasgow, Sept. 15th 1836; 1 Swin. 304. 378 INDICTMENT. MoDns. illustrated by the only exception that has been made to Euie in case of it, viz., that of a prosecution for publishing obscene foTpubiisMng books. Though the Court held that, in such a case, the ™™^™i passages should not be quoted, as that would indirectly produce the evil the prosecution was intended to pre- vent, they held further that it was not enough to libel that the books contained obscene passages, but that these should be specially referred to by page, and that to place the accused as much as possible in the same position as in the ordinary case, the books should be lodged in the hands of the Clerk of Court at the same time as the libel was served on the accused (1). But Kot necessary this rule, that the document must be quoted, only apphes ■wrStag^oniy™ whcrc the document forms the basis of the principal an incident of diarge. Where the document forms only a subsidiary element in the proof of another crime, such as the send- ing of a threatening letter in a case of illegal conspiracy, or the falsification of books by the accused in a case of fraud or fraudulent bankruptcy, it is not necessary to quote the documents at length, provided there is suffici- ent certioration by the prosecutor that such a matter is to be put in evidence as part of his proof of the other crime (2). Writings may Where it would be inconvenient to quote the docu- appmdfx.'" ments at length in the body of the indictment, they may be referred to as set forth, in Appendices, stating each document where it is mentioned to be " of the tenor set " forth in Appendix No. 1, or of a similar tenor," (3). Mode of de- No fixed rules can be given as to the specification and'dufies^f^^ necessary in those parts of an indictment which describe persons. such things as offices and their duties, or the details of a particular employment, or the like. On the other hand, where the accused is charged with committing an 1 Henry Robinson; H.O., July Nov. lOth 1837 ; 1 Swin. 550. 24th and Nov. 9tli 1843; 1 Broun 3 John Neil, H.C., Jan. ISth 590 and 643. 1845 ; 2 Broun 368 (Indictment). 2 Thos. Hunter and others, H.C., mDICTMBNT. 379 offence ■while acting in a capacity the duties of which Modus. are of a known character, it is not necessary to specify Where office them at length. Thus, a teller of a bank is sufficiently wTu-known * described by that name, without any detail being given ^^"^^^'^^^ of his duties (1). On the other hand, there are many further speoifl- „. , , 1 ii p 1 . 1 cation unneoea- oftices and employments, the names or which convey no eary. known current signification. In such a case, of course, ^" ?'i'«i' '"'^^s ° . , . . duties must be merely to name the omce is the same thing as to give no specified. information whatever. A specification must be given, therefore, of anything which the prosecutor intends to found upon as falling within the duties of the office. But such a specification being given, it is not a good ob- Not an ohjeo- iection to relevancy that what is set forth to have been tiontoreieT- •I •' _ anoy that what the accused's duty, was not so, that being a question of js specified is proof (2). This rule, of course, applies only in a reason- IJSeS^it be able sense, where the species facti have ostensibly a f^^nde^/""^" relation to the office the accused holds. A libel would be at once set aside as irrelevant which set forth as the duties of an office, things which had no possible connec- tion with it. Thus, it was observed in one case, that " it will not do to allege a thing to be the duty of a " particular individual. The duty must be such as " reasonably springs from the relation of the persons to " one another " (3). It may safely be pronounced a general rule that what- whatever has ever has once been sufficiently described in the nar- been once rative is not required, if afterwards referred to, to be be spoken of again fully described, it being sufficient for example to referring to ^ speak of " the said ship," " the property above libelled," Previous -^ JT JT ./ ' specification. " the village of Cohnton aforesaid." And this rule holds though the repetition occur in a charge distinct from that in which the thing was first mentioned. Nor is it 1 Eob. Smith and Jas. Wishart, 10th 1847 ; Ark. 247. H.C, 18th May 1842; 1 Broun 342 3 Ohas. Buchan, Stirling, May and Bell's Notes 192. 6th 1863 ; 4 Irv. 392 and 35 So. Jur. 2 Will. Hardie, Stirling, April 461. 380 INDICTMENT. Modus. Confined to the mere description. It may extend even to a quality specially attached to a thing in the previous part of the libel, such as that it was the property of a certain person. General reference includes any special quality [previously specified. Thus, where articles are spoken of in the libel as the property or in lawful posses- sion of an individual, and in a subsequent charge these articles are again spoken of as the articles " above li- " belled," these words are held to cover and include the whole of the previous statement as to the property and pos- session, so that it is not indispensable to repeat that state- Person once ment (1). The same rule applies in the case of persons, notbesoagata. "The Said John Brown" is quite a sufBcient reference to a person already specified, and includes any quality be- if reference fore set forth, puch as that he was a police constable em- has not been ployed in the execution of his duty. In all the above char'^e'irreie- cases care must be taken that the thing or person referred Tant. to has been truly described before. If the reference set forth " the said James Houston," (2) or " the said " house," (3) when no such person or house has been previously mentioned, or when the name previously mentioned was Thomas and not James, there is a good Rule extends to objection to the relevancy. This rule extends also to meuts. narrative statements. For instance, in an alternative charge of theft or breach of trust, where there is a detail given in the charge of theft of the mode in which the subject of the charge came into the accused's possession, it is not necessary to repeat that narrative in the charge 1 Jane Maopherson or Dempster 3 The following occurs in Lord and others, H.C., Jan. 13th 1862; iTory'sMSS.intheoaseof Catherine 4 Irv. 143. (This point is not men- Cowan or Devlin, Glasgow, Sept. tioned in the rubric.) — Jane M'Ma- 13th 1849 : — " I suggested a doubt hon or M'Graw, Glasgow, April 22d " as to libelling of 1st charge, house- 1863;4Irv.381and35 Sc. Jur.459. "breaking from 'the said house,' 2 Chas. O'Neil, Glasgow, Sept. " no house being previously men- 1829; Bell's Notes 202. — Thos. "tioned, and 'residence' of the Houston and Jas. Ewing, Glas- " party ' now or lately' not even gow, April 23d 1847 ; Ark. 262. — " affording good ground of im- See also Dennis Connor and Edwin "plication. Lord Mackenzie Morrison, Glasgow, Sept. 23d 1848 ; " agreed. Advocate-Depute with- J. Shaw 5. " "irew this charge." I INDICTMENT. 381 of breach of trust, it being sufficient to state as an alter- Modus. native that the accused, in breach of the trust reposed in him, as before stated, embezzled " the said sum," &c. (1) Or in an alternative charge of stouthrief by housebreak- ing or theft by housebreaking, the mode of breaking into the house having been described, it is sufficient in the alternative charge to use such expressions as "break " into and enter the house above libelled in manner " above libelled," &c. (2) But the power of referring But general re- back to a previous part of the narrative must be exer- pUoated na?ra- cised reasonably. A general reference to a number of ^'T^ .^?' p^"^" charges of a complicated kind will not be permitted. Thus, where an indictment contained a long narrative of fraudulent concealment of effects, and concluded by a charge of fraudulent bankruptcy, thus : — " Likeas you, " the said WiUiam IngUs, by your whole actings in the " premises as above libelled, or part thereof, have com- " mitted and are guilty of fraudulent bankruptcy, and " you have thus acted as, and you are a fraudulent " bankrupt," the charge was found irrelevant (3). Words which give a quality to the act alleged to be Qualifying committed need not be repeated before every clause of require^to^be the narrative. Where the narrative commences "vou repeated before -,.■,.■,-,-, TPT* T„D •• every clause. " did Wickedly and feloniously, &c., it is not necessary to repeat the words "wickedly and feloniously" before each thing which the continuous narrative states to have been done. Thus, where it was objected to an in- 1 An objection to the want of Irv. 47 (indictment). An objection specification in an alternative vras raised to the vagueness of using charge of this sort was repelled in the words "in the manner above Ebenezer Beattie, Dumfries, April "libelled" in an alternative charge, 25th 1850. — Lord Ivory's MSS. in the case of Thos. Williamson This case is reported by J. Shaw and Patrick Murphy, Ayr, Sept. 356, but incorrectly under date 28th 23d 1857, but was repelled. Lord April instead of 25th April. The Ivory's MSS. objection to relevancy is not noticed 3 Will. Inglis and Catherine in the report. Inglis, Glasgow, April 23d 1863 ; 4 2 Will. Thompson and Geo. Irv. 387 and 35 Sc. Jur. 461. Bryce, Glasgow, April 25th 1861 ; 4 382 INDICTMENT. Modus. dictment that the words " and did fail and neglect to tie " the umbilical cord of said child," were not a relevant statement, as not being set forth as deliberate and wil- ful, the Court repelled the objection, holding that as the indictment contained only one continuous narrative, the words " wickedly and feloniously," previously used, ap- But where first plied to the whole charge (1). The rule, however, will Ing wdei-^" not necessarily be appUe*d where the first use of the roneous, it will qualifying word is erroneous. For example, where in a subsequent poaching casc the complaint charged that the accused clause. ^.^ „ unlawfully " enter upon a public road, and " then and there kill or destroy a hare," the objection that they were not accused of unlawfully kiUing the hare was sus- tained, the previous use of the word being held of no avail, as it was not used relevantly, " unlawfully" enter- ing upon a public road not being an offence at all (2). Notice of cases Having now stated the general rules applicable to the ti'ons'made to°' detailing of the modus, it may be useful to notice here the narratiTc. ■briefly souie of the cascs where objections to the style in which details were set forth have been repelled or d"fcd°s™uJst^oii sustained. Of course these are merely general illustra- of ciroum- tions, as the sufficiency of details or of particular expres- stances. • • • i j. j.* r - j_ sions IS in almost every case a question oi circumstances. And in the consideration of distinct crimes, many illus- trations will be afforded of the necessity of extreme punctiliousness in one case, and the allowance of greater generality in another. To begin with cases of objec- tions repelled. The following are illustrations of ob- jections to the general structure of the charge. In a olDjeotions charge of drugging the objection was repelled that the to structure of ^ords " and did prevail on him to drink the same " were charge re- n i • i i i i peiied. too vague, and that it should be stated how he was pre- 1 Elizabeth Duncan and Ann 2 MainaandBannatynev.M'Lul- Brechin, Perth, Sept. 29th 1862; 4 lich and Fraser, H.C., Feb. 6th 1860 j Irv. 206 and 35 Sc. Jur. 51. 3 Irv. 533 and 32 So. Jur. 476. INDICTMENT. 383 vailed upon (1). Where an indictment charged em- Modus. tezzlement of a box and the money contained in it, the objection was repelled that the charge did not state the contents of the box to have been delivered into the accused's custody, as it only stated that he had been entrusted with a box, in which the money and papers of the owners were kept (2). The charge bore that he did •' carry away the said box, then containing £18 sterling." A charge of attempt to kill by suffocating was sustained on objection, which described the act as done " by " placing certain articles upon and above the whole, or " part, of the person of the said child," (3). Where the accused was charged with culpable neglect of duty, in respect it was his duty to use, and to see that his workmen used, all requisite precautions in a certain operation, and the act done was stated as done by him or by his work- men, without his using the precautions, or seeing that they Were used, the objection was repelled that the pro- secutor was bound to have named the workmen, parti- cularly as they were not said to have been unknown to him (4). In a case of culpable homicide where the accused was charged with adding to a chain or chains links " of an improper shape or construction, and with " defective materials, and with insufficient workman- " ship, or with one or more of these faults or defects, ao " that the same was or were in an unsound and insuffi- "cient condition, and dangerous," — &c., the objection that the libel did not specify in what respect the shape or materials or workmanship of the links were defective, was repelled (5). In another case of culpable homicide, where the accused was charged with failing to warn cer- 1 John Stuart and Catherine Bell's Notes 185. Wright, July Uth 1829; Bell's 4 Jas. Finney, H.C., Feb. 14th Notes 192. 1848 ; Ark. 432. 2 David Walker, Stirling, Sept. 5 Geo. Stenhouse and Arch. 3dl836; ISwin. 294. M'Kay, H.O., Nov. 8th 1852; 1 3 Mary CoUins, Jan. 19th 1835; Ii-v. 94. 384 INDICTMENT. Modus. Critical objec- lions to wording re- pelled. tain persons who were entering a diving bell, of which he had the charge and oversight, that it was in an un- safe position, the objection that it was not specified that he was present when they were actually entering the bell, was repelled. The indictment set forth tha.t when they were "proceeding to take their places," he was "present and cognizant of these proceedings," (1). Where the charge was fraudulent bankruptcy, the objec- tion that expressions such as "he had considerable funds " in money, and goods to a large value, and that debts " to a large amount were due to him," were too vague, and that a statement that the accused "had declared " himself insolvent " was insufficient, as it shoidd have been stated when, how, and to whom he had declared ■ it, was repelled (2). It was objected to a charge of child murder that the cause of death was said to be fracture of the skull, and not strangulation, and that therefore the words, " did grasp and compress the throat of your said " child," should be struck out. The objection was most properly repelled. The statement of the special results of an assault at the end of the libel, can never exclude an averment of a different kind of attack, being part of the general assault, and being equally relevant whether it produced any tangible consequences or not (3). The following are a few illustrations of critical objec- tions to words used in indictments. Where an indict- ment bore that an individual had " paid " a sum to the accused, which the latter stole, and it was objected that the word " paid " could not be received in any other 1 Eob. Totmg, H.C., May 20tli 1839 ; 2 Swin. 376. 2 John O'Eeilly, H.C., July Uth 1836 ; 1 Swin. 256 and Bell's Notes 193. — This last expression "having " declared himsell insolvent," taken by itself was certainly rather vague. Probably the ground for repelling the objection was, that the libel in a previous part of it described fully the mode of the declai-ation of in- solvency. But the charges being entirely distinct, it certainly would have been better to have used the woi-ds "as above libelled." 3 Christina Craig, Inverness, May 1st 1862 ; 4 Irv. 189 and 34 So. Jur. 470. INDICTMENT. 385 sense tlian that the money was paid as a debt due to the Mouds. accused, and that therefore he could not he charged with stealing it. The objection was repelled, it being held that, though the expression was awkward, the obvious meaning of the word " paid " taken in connection with what followed, was, that the money had been only de- livered to the accused (1). In another case the word " produce," used in reference to the affidavits, &c., pro- duced in a sequestration, was objected to as not being sufficiently specific, but the objection was repelled, the word being one of well understood technical significa- tion in reference to such matters as those with which it was connected in the libel (2). In a case of perjury in emitting an oath in bankruptcy, where it was objected, that in the oath the word " estate " was used instead of " state," in speaking of the " state of affairs," it was held that the true question was whether the statement set forth in substance the -statutory oath of a bankrupt which could have been sustained against the objections of creditors, and the Court holding that it did so, repelled the objection (3). The following are some of the cases in which objections objections on to the specification have been sustained on general e™®''^^ ■*■ " grounds sus- gi'ounds, such as vagueness or ambiguity. Where a tained. libel for culpable homicide and neglect of duty, charged an accident as having occurred " in consequence of your " culpable violation and neglect of duty aforesaid, and in " consequence of your not taking the necessary means and " precautions to prevent danger and injury to the lieges," and the same clause was repeated in libelling the cause of death, &c. ; the words in italics were held irrelevant, as the narrative, thus expressed, charged two causes com- 1 John Macleod, Inverness, 1861 ; 4 Irv. 132. April 28tli 1868 ; 3 Irv. 79 and 30. 3 Dawson v. Maolennan, H.C., So. Jnr. 521. April 2d 1863 ; 4 Irv. 357 and 35 2 Jteuben Brooks and Frederick Sc. Jnr. 615. W. Thomas, Glasgow, Deo. Slst 2b 886 INDICTMENT. MoDPs- bined — first, the breach of duty described ; and, second, some other unexplained and undetailed delinquency. Nor was the objection held to be affected by an aver- ment that it was the accused's duty " to take all neces- " sary means and precautions to prevent danger," &o. (1). "Where a charge of culpaWe homicide contained an alter- native, " or did culpably and recklessly use a sword or " cutlass," the charge was held irrelevant, as not implying anything criminal, the sword not being said even to have been drawn, and the word "use" being held far too vague (2). Where the accused was charged with receiv- ing for his master a bill for =£"15, 18s., and embezzling "the said biU or promissory note, or the said sum of i&15, " J 8s.," but there was no statement that the accused had power to endorse the note, and had failed to account, the Court ordered the words, "or the sum of ^£"15, 18s." to be struck out (3). And on the same principle, in another case, the Court, though not holding the libel irrelevant, animadverted on the accused being charged with having received sums for his master, " partly in bank cheques, " which you forthwith cashed," and then embezzled the sum they represented without its being stated where the cheques were cashed, or whether it was the cheques or the cash he embezzled, or whether he had authority to cash the cheques or not (4). A charge of uttering a forged bill was held irrelevant, where the species facti set forth were that the accused, having forged several names upon a bill stamp, and written ^^50 in figures upon it, uttered it as genuine by delivering it to John Cooper or Carr, a teller at a bank, " in order that a bill " of exchange for ^£"50 sterling might be written above the " foresaid subscriptions on the face of the said stamped paper " and be discounted or cashed." It was considered 1 Wm. Dudley, H.C., Feb. 15th • 3 John Mackenzie, H-O., July 1864 ; 4 Irv. 468 and 36 So. Jur. 332. 20th 1846 ; Ark. 97. 2 Thos. Philips, Glasgow, April 23d 4 Eobt. Stevenson, H.C., Not. 1863 ;4 Irv. 385 and 35So. Jur.460. 8th 1854; 1 Irv. 571. INDICTMENT. 337 that these last ■words did not necessarily imply that it was Modus. to be discounted or cashed by Cooper (1). But the addition " of the words "by the said John Cooper or Carr," to the words " be discounted or cashed," would have made the charge relevant (2). A charge of theft was held not rele- vantly laid where it was set forth that the accused stole a locked chest, and then that they did break it open and steal certain articles from it, on the ground that if the accused stole the locked chest they also necessarily stole its contents, and could not steal them again. The pro- secutor limited his charge to the theft of the chest (3). But this rule may not apply in a strictly statutory case. For example, where a statute declared it a special offence to steal a letter out of a post-bag in one section, and a spepial offence to steal money out of a letter in another section, a libel was held relevant which charged a con- travention of both sections by first stealing a letter which contained money, ancj then opening it and stealing the money (4). The following are instances of indictments held Objections to ,..,.. „ 1 „ . uncertamterms objectionable m consequence of the use of uncertam sustained. terms : — In a case of child murder, the difi&culty of put- ting a fixed meaning on the word " expose," when taken by itself, was fatal (5). In the same way in a case of culpable and reckless fire-raising, a statement that the accus,ed did " allow " a light to come in contact with a 1 Michael Steedman, E.G., Feb. 7th 1856; 2 Irv. 494 (indictment).— 6th 1854 ; 1 Irv. 363. Alex. Maokay, Inverness, Sept. 24th 2 Sameoase, H.C., Feb.27thl854; 1861 ; 4 Irv. 88. There was, in the 1 Irv. 369 and 26 Sc. Jur. 318. libel in this case, an alternative 3 Jas. Stuart v. Alexander Low, charge of simple theft, in which Aberdeen, April loth 1842 ; 1 Broun were coupled together, as conatitut- 260 and Bell's Notes 8. — See David ing only one act of theft at common Walker, Stirling, Sept. 3d 1836 ; 1 law, the two acts making the sepa- Swin. 294 and Bell's Notes 209 — rate statutory offences, theprosecu- where, in a similar case, it was held tor thus distinctly recognising the that the true locus delicti was the principle of the case of Stuart and place where the box was taken, not Low, supra. the place where it was subsec[uently 6 Elizabeth Kerr, H.O., Nov. 8th broken open. and 26th 1860 ; 3 Irv. 627 and 33 4 Henry Goldwyre, H.O., Nov. So. Jur. 34. 388 INDICTMENT. MoDua. certain article was held irrelevant (1). A charge of ut- tering a piece of paper resembling a bank-note, by de- livering it to certain persons, " in order to be exchanged " for genuine money, was held not relevant, as the mere delivering of the paper " in order to be exchanged " did not necessarily imply that it was delivered " as genuine," which might have been implied in the case of a paper said to be a forgety (2). The libel should have contained some such statement as that the accused delivered it, " meaning and intending the same to pass for, and be re- "ceived as a genuine note of the Bank" (3). Where the accused was charged with culpable homicide of his child, in so far as by the violence of an assault he was committing upon his wife, he did " force or cause " hi wife, " when in a state of alarm or excitement," to compress or squeeze the child in her arms, the words " force or," and the words " when in a state of alarm or " excitement," were struck out on objection, and it was then held that the charge setting forth simply that he did " cause " his wife to compress the child was relevant, as implying that she was physically compelled to compress or squeeze the child (4). In a charge of culpable homi- cide the following clause occurred — " and it moreover "being your duty in your capacity aforesaid [in any " event], and independently of any such signal, as afore- " said, more particularly when knowing [or having good "reason to know], that you were approaching a station," &c. The words between brackets were struck out (5). "Where the libel in a case of obtaining goods by false- hood, fraud, and wilful imposition, stated the goods to 1 Jas. Stewart and John Walsh, 1856 ; 2 Irv. 488. (The nibrio of H.C., Jan. 14th 1856 ; 2 Irv. 359. the report is slightly inaccurate. It 2 Peter Gibb, H.C., Nov. 18th states that the words "force or 1833 ; Bell's Notes 185. " cause " were deleted, whereas only 3 See Alex. Lindsay and Eobert the words "force or" were struck Stnithers, H.O., Nov. 19th 1838 ; 2 out). Swin. 198. 5 Alex. Eobertson, H.O., Feb. 8th i Hugh Mitchell, H.O., Nov. 7th 1859 ; 3 Irv. 328. INDICTMENT. 389 have been delivered " to you, or your order," the Court ^°°^^- held that though this did not amount to a legal defect, still it was not advisable to depart from the usual prac- tice of naming the individuals who were said to have re- ceived the goods for the accused (1). Such being the general rules as to specification, it is Latitude to ° . , • 1 , • n , 1 ™6et slight diB- next necessary to notice what alternative latitude the orepauoies prosecutor is entitled to take to cover any trifling differ- ^ation'aiid"'^' ence between his information and the proof In stating P™of- a sum of money, or the age of a person, after naming the exact sum or number of years, the prosecutor may com- petently add the words "or thereby." And every rea- "Or thereby." sonable latitude will be allowed under these words, although, of course, it may depend on circumstances how far the latitude may be allowed to reach. It is very rarely, indeed, that any question arises as to the limit which these words will reacL In the only case in which they appear to have led to any discussion, namely, a case of indecent assault upon a girl, it was held that the words " twelve years of age, or thereby," would cover the case of a child within sixteen days of thirteen years of age (2). On the same principle, the prosecutor is en- titled to take a general latitude in reference to such of the circumstances as may not be certain. Thus, where the libel charges the use of a weapon or instrument » other wea- named, he is permitted to add " or with some other wea- ^°^'" ^°' " pon (or instrument) to the prosecutor unknown " (3). Again, in the case of the embezzlement of money paid to "f'^'a^mSir* the accused in various forms, it is relevant to state the payments as made in a particular manner described, "or " by some other mode or modes of payment, the parti- " cular mode or modes being to the prosecutor un- 1 Jas. Wilson, H.C., March 6th 3 Hume ii. 194, 195, and oases of 1854 J 1 Irr. 376. Eobertson : Davidson : and Pretia 2 Eobt. Philip, H.C., Nov. 2d there, and cases of Hannay: and 1856 ; 2 Irv. 243 and 28 So. Jur. 1. Taylor and Smith in note 1. 390 INDICTMENT. Modus. " known," (1). Or in a case of mobbing, tbe prosecutor after libelling the common purpose of the mob, may add " or for some other unlawful purpose to the prosecutor " unknown," (2). Special The circumstances of a particular case may make a mly"j^stify^^ latitude of this kind permissible when, in the ordinary speoiaiiatitude. ^ase, it might not be so. For example, where, in a charge of bigamy, the first marriage was set forth as celebrated by a clergyman named, " or by some other "clergyman to the prosecutor unknown," the latitude was held admissible, the public prosecutor stating on his responsibility that it was essential, and the marriage being libelled as having taken place sixteen years before (3). „ ,. "Where the prosecutor takes a latitude of this sort by Question ^ . " ■whether ai- stating that an act was done " with some other mstru- toYdd^'to pro? " ment,'^ or the like, it should be stated to have been 'lit™*™.™" "to the prosecutor unknown," (4). At the same time, though this is the rule as to the main charge, it cannot be laid down as an absolute rule that these words must be used, in reference to every incidental point, as to which a latitude is taken. Where a libel charging child-murder stated the child to have been tied up " along with a stone or other substance, weighing," &c., without saying " to the prosecutor unknown," the words, " or other siibstance " were struck out on objection, but not on the ground of the absence of the words " to the " prosecutor unknown" (5). And in a previous case of 1 John Christie and Jas. Christie, 3 John Armstrong, H.C., July H.C., May 31st 1841 ; 2 Swin. 543, 15th 1844 ; 2 Broun 251. note (New Indictment). For the 4 'Will. Flockhart and others, previous indictment, which was ob- Feb. 16th 1835 ; Bell's Notes 193.— jeoted to, see 2 Swin. 534. John and Jas. Christie, H.O., March 2 Geo. Smith and others, Glas- 12th and May 31st 1841 ; 2 Swin. gow, May 3d 1848 ; Ai-k. 473.— 534, 2 Swin. 543 note, and BeU's Michael Hart and others, H.C., Notes 197. Nov. 10th 1854; 1 Irv. 674 and 27 5 Mary Wood, H.O., Nov. 7th So. Jur. 2. 1856; 2 Irv. 497 and 29 So. Jur. 5. INDICTMENT. 391 precisely the same sort, the libel contained only the Modus. words " or some other heavy substance," and was sus- tained, though objected to (1). Again, a libel which charged that the accused deceived a person " by means " of these or other similar or false representations " was successfully objected to on another ground, but no ob- jection was stated on the ground that the words " to the "prosecutor unknown" were not used, nor was this noticed as a defect by the Court (2). And further it is quite common in charging an offence, which involves in its commission a good many details, after reasonably describing what was done, to take a general latitude without using the words " to the prosecutor unknown," Thus, in a case of complicated assault, the addition of the words " and did otherwise maltreat and abuse "him," Ls unobjectionable 3). Again, in a case of riot or the like, such expressions as — " and did otherwise con- duct yourself in a riotous and outrageous manner," are allowable. And the invariable style in charges of using improper practices to children is to add to the particu- lar description the words " and use other lewd, inde- " cent, and libidinous practices towards the said," &c. To cite one example more : in cases of fire-raising such expressions as, " and by setting fire to various other " parts of the said apartments occupied by you, and to "the goods or other articles therein," &c., is not objec- tionable (4). But the prosecutor will not be permitted to exceed reasonable bounds in taking a general latitude of this sort. Thus, where two persons were charged with devising a fraudulent plan for certain specified 1 Thos. Braid and Mary Braid, which was sustained. Jan. 27th 1834 ; Bell's Notes 194. 3 Geo. Forbes and others, Perth, 2 Henry Hardinge and Lucinda Oct 11th 1858 ; 3 Irv. 186 and 31 Edgar or Hardinge, H.O., March So. Jur. 37. 2d 1863 ; 4 Irv. 347 and 35 So. Jur. i Harris Rosenberg and Alithia 303. The word "or" between the Bamett or Eosenberg, Aberdeen, words "similar" and "false" were April 16th 1842; 1 Broun 266 and struck out to obviate the objection Bell's Notes 194. 392 Modus. Power to take latitude extends to narrative of modus. But words in which latitude taken must not be such as to constitute an independent narrative. INDICTMENT. purposes, and there was added to the charge the words "and otherwise defrauding the said," &c., the Court ordered the clause to be struck out, on its being objected as assuming too great a latitude (1). The right of the prosecutor to take a general latitude is not confined to the incidental circumstances or perti- nents of the charge. He is also entitled to take a simi- lar latitude in reference to the whole narrative of the crime itself For example, in a case of murder, after describing the particular mode, there may be added, " or " did otherwise maltreat and abuse your said child in some " other manner, and by some other means, to the prose- " cutor unknown." Or, in a case of house-breaking, " having thus, or in some other manner, to the prosecu- "tor unknown, forcibly obtained entrance," &c., (2). But whUe such words are unobjectionable, care must be taken, both as to their form and as to their position in the libel. If they are so expressed as to form an indepen- dent charge, they will be held irrelevant. Where a clause of this sort was separated from the rest of the detail of the charge by a separate averment of time and place — " or you did then and there inflict some mortal " injury upon your said child in some manner and by " some means to the prosecutor unknown," the Court held it irrelevant. The clause was doubly objectionable. 1 Eenben Brooks and Frederick W. Thomas, Glasgow, Deo. 31st 1861; 4Irv. 132. 2 Hume ii. 192, 193, and case of Stewart and others there, and case of M'Mahon in note a — ii. 195, case of Gilchrist in note 1. — Alison ii. 302 to 305.— The following selec- tions from a multitude of others in the reports, may serve as illustra- tions of this rule: — Thos. Braid and Mary Braid or Morrison, H.C., Jan. 27th 1834; 6 Sc. Jur. 220.— Bob. Eeid, H.C., June 22d 1835 ; 13 Shaw's Session Caaes 1179 and Bell's Notes 194.— Bob. Hall, Glasgow, Jan. 5th 1837; ISwin. 420 and Bell's Notes 194.— Elizabeth Brown, March 16th 1837; Bell's Notes 194 — Thos. P. M'Gregor and Geo. Inglis, H.O., March 16th 1846; Ark. 49.— Will. Clark and Janet Gray or Thompson, Aberdeen, Sept. 20th 1849; J. Shaw 267.— Ann M'Que, H.O., March 12th 1860; 3 Irv. 578.— Alexan- drina or Lexy Glark and Jane M'Kay, Inverness, Sept. 25th 1861 ; 4 Irv. 91. —Alex. Glennie, H.O., June 27Ui 1864 ; 4 Irv. 536. INDICTMENT. 393 The "then and there" separated it from what went Modus. before, and thus made it a substantive and independent charge, and the absence of any such words as " other- " wise " or " other " precluded the idea of the clause being intended merely to cover some other violence of the same sort as that previously described (1). This lat- ter obiection illustrates another rule, which is, that the Clause objeo- .,,.., tionable if it clause must be so worded as to imply only a similar point to a mode mode to the one specially described.* Thus, in a case of that^speoffied! falsehood, fraud, and wilful imposition, where the prose- cutor used the words " by these or other similar [or] "false representations," the disjunctive " or " in brackets was struck out, as in its position as a disjunctive from " similar," it pointed to representations dissimilar to those specifically libelled (2). Again, the words by Clause taking which a general latitude is taken must be placed in be expressly their proper position in the charge. They must form a wHh tt'e part of the description of the modus. If they are thrust !J™\^°^'*t™® in any where else, so as to be separate from and not relates, merely an addendum to the detail of the manner of the act, they will be held irrelevant. Thus, in a case of murder, after the description of the modus has been con- cluded, and the prosecutor has made his averment that the deceased died in consequence, it is not competent in the conclusion of the charge to bring in a general state- ment, thus : — " and was thus [or in some other way, and "by some other means to the prosecutor unknown] " murdered by you." The words in brackets, so placed, are not a mere amplification of the special mode de- scribed, but are put in opposition to the word " thus," and amount therefore to a new and totally irrelevant averment (3). 1 Ann M'Que, U-C, Feb. 20tli Jur. 303. 1860;3IrT. 552anaa2Sc. Jur. 478. 3 Mary Wood, H.O., Nov. 7tli 2 Henry Hardinge and Lucinda 1856 ; 2 Irv. 497 and 29 Be. Jur. 5. Edgar or Hardinge, H.O., March —Ann M'Que, H.O., Feb. 20th 2d 1863; 4 Irv. 347 and 35 Sc. 1860; 3 Irv. 652 and 32 So. Jur. 478. 394 INDICTMENT. Modus. Latitude not permissible where an exact mode is of essebce of charge, as in statutory cases. Modus in particular offences. Theft, ordinary case. Child-stealing. The taking away. Usual to add whether taken from person, or cart, or the like. It is of course not competent to take any such lati- tude as that spoken of, in cases where the essence of an ofPence consists in its having been done in a particular and strictly defined manner, and where, if it were done in any " other " manner, it would cease to be the offence charged. And this 'is especially true of statutory offences, where the prosecutor is bound to prove the offence as described in the statute. Thus, where the prosecutor added to a statutory charge the words " or in " some other way and by some other means to the pro- " secutor unknown," it was declared that it was incom- petent to introduce them, as they were not in the statute, and they were deleted accordingly (1). It will not be possible, in treating of the form of set- ting forth the modus in the case of particular crimes, to notice every offence which may arise in practice. To do so would occupy much more space than is compatible with the limits of the present work. It is hoped that the selection made will sufficiently meet the require- ments of ordinary practice, and that the forms given may be found useful by analogy in those cases which have not been specially commented upon. Theft (p. 22.) — In the ordinary case it is sufficient to state — I. That the accused "did wickedly and feloniously " steal and theftuously away take," II. certain property described, being — III. (" the property " or) " in the lawful possession " of " a certain person described. In cases of child-stealing " away carry " is substituted for " away take," and " in the care and lawful custody " of," for the words, " the property or in the lawful pos- " session." .First, the taking wu}ay. It is usual where the place of a theft has been described at large as a street, 1 WiU. Newman, H.O., July 14th 1856 ; 2 Ir?. 439. INDICTMENT. 395 or a road, to add to the statement of the " taking away," Modus. such words as " from the person of John Brown," &c., or " from a cart then standing there." But such a state- ment is not an imperative requisite (1). Although an Some oases indictment which charges theft in the general n^anner gpeJfioaSon! stated ahove, is undoubtedly relevant to infer that crime, stiU there are many cases in which, according to fixed practice, the prosecutor is bound to give a further detail of circumstances in order to entitle him to a con- viction. Thus, where a theft is committed of an article Case where which originally came lawfully into the custody of the I'awMiy in thief, (as in the case of an overpayment, or of post letters, possession of or things hired or delivered for a specific purpose), the libel should state the circumstances ; e. g., " the said " James Laurie having delivered to the said Eobert " Michie a bank or banker's note for =£'20 sterling, in " order that he might get the same changed, and return " with and deliver the change thereof to the said James " Laurie, the said Eobert Michie did," &c. (2). In one case, where the libel charged that the accused received a £b note from A. B. " for the purpose of being changed, " and the change returned to the said " A. B., and then added only that the accused stole the note, the charge was found irrelevant, there being no averment that the accused had failed to return the change for the note, and there being thus no certainty as to how the lawful custody of the note merged into an illegal appropria- tion (3). Again, in the case of theft of an article found Pound article. 1 Margaret Smith or Spalding, of Michie was, that from the terms Aberdeen, April 25th 1854 ; 1 Irr. of the libel in Miohie's case, the 463. accused was only a hand to convey 2 Hob. Michie, H.C., Jan. 28th the note to some other person to be 1839 ; 2 Swin. 319. — See also Thos. changed, whereas the expressions Paterson, H.O., July 22d 1840 ; 2 in Mills' case indicated rather that Swin. 621 (Indictment). the accused was herself to give 3 Margaret Mills, H.C., July 10th change for the note, which there- 1865 (not yet reported). — The dis- fore was her property, unless she tinction between this case and that failed to give change for it. 396 INDICTMENT. Modus. and appropriated, the libel must state particulars beyond the usual bare averment that the accused did " steal " and " away take" the article (1). For example, where the owner is known to the finder, there must be some statement of the previous circumstances so far as known, and an averment that the accused found the articles, and " did appropriate the same to his own uses and pur- " poses, he well knowing- the same to be the property of " the said John Buchanan, and did wickedly and felo- " niously steal and theftuously away take the said arti- Not sufficient " cles," &c. (2). It is not a sufficient alternative in such knew what he a case, after charging that the accused appropriated the M^wr' ""^ articles and thus stole them, weU knowing them to be the property of a certain person," to add, "or at all " events that the same were not the property of you" Direct aver- (the accuscd) (3). On the other hand, it is not abso- accused knew lutely necessary that there should be a direct averment ahrays'neces- ^^ knowledge of Ownership, if the facts set forth plainly sary. import that there could not be any doubt upon the matter. In a case of theft of letters from a post-bag, said to have been found on the road by the accused, the addresses of some of the letters being set forth in the libel, and the addresses of the others being described as unknown to the prosecutor, the objection was repelled that the indictment did not state the accused to have Form where known whosc property they were (4). Further, where know true it caunot be alleged that the accused knew who was the true o^ner of an article found by him, a libel for theft may still be relevantly framed against him, if such acts be specified as to indicate felonious appropriation ; as 1 Angus M'Klnnon, H.C., May Perth, Oct. 3d 1838 ; 2 Swin. 187. 25th 1863; 4 Ir7. 398 and 35 So. 3 Angus M'Kinnon, H.O., May Jur. 512. — Geo. Douglas, H.O., 25th 1863 ; 4 Irv. 398 and 35 Sc. Jan. 23d 1865 ; 5 Irv. 63 and 37 So. Jur. 512. Jur. 354. 4 Thos. Scott, H.C., Nov. 11th 2 John Smith, H.C., March 12th 1853 ; 1 Irv. 305. 1838; 2 Swin. 28. — Jane Pye, owner. INDICTMENT. 397 for example, tliat he offered the article for sale or Modus. pledge, and asserted that it was his own (1). Lastly, it £^'^j'J!y''j^'^ is only necessary to charge the facts specially where the special that _ case is truly one in which the property at first came ^cation neoes- lawfnlly into the accused's possession. "Where a libel s^'T- charged the accused with stealing a watch from a per- son in a stair or entry, or stealing it in the stair or entry, it "having dropped from his person or been " otherwise left there," the alternative being held to be referable to the same time as the charge of stealing from the person, and to mean merely that the watch had fallen down and was picked up on the spot, the charge was held relevantly laid, though the judges who formed the majority thought the mode of expression rather loose (2). The same principle which makes it necessary to set Case of person forth a narrative of| facts against the principal actor in a a theft by an- charge of theft where the stolen property came at first "awfurrastody innocently into his custody, applies to a charge against of property. an accomplice in such a case. Although ordinarily, the charge of art and part is sufficient to meet the case of those who abet the principal actor in a theft, something more is requisite in a case of custody originally inno- cent, than to state the preliminary narrative as applic- able only to the custodier, and then to charge that the custodier and another person stole the property. "When a charge of theft against two persons set forth that one of them, Daniel Alexander Murray received money from his employer to carry to the bank, and then without having previously mentioned the other accused at all, proceeded to say, "you, the said Daniel Alexander 1 A(^»^onneUy, Glasgow, Sept. bably not have contained a separate 20th ISM^ (Indictment, Adv. Lib. alternative charge, but the first Ooll.) charge would have contained some 2 Mary Eeid and others, H 0., such statement as that the accused March 3d 1856; 2 Irv. 393.— At the stole "from or from near the per- present day the libel would pro- "son," &c. 398 INDICTMENT. Modus. " Murray and Eobert Tait, did, both and each, or one or " other of you" — at a certain time and place — " instead " of paying in the said money or any part thereof, "wickedly and feloniously steal," &c., the charge was held irrelevant as against Tait (1). To make such a charge against the accomplice relevant, it would be necessary to charge a previous concert between him and the custodier, or to make some similar averment, implying a direct knowledge and participation. Besides the cases already mentioned, others may be supposed in which a mere general charge would not be sufficient. Specification in for example, in the case of wild animals, some circum- case of theft of , , , . . , , ,,.,■,.■,■. ■wild animals, stances Ought m certam cases to be set forth indicating how the animals have become property, and capable of being stolen. Accordingly where the accused was charged with stealing fish from nets, a detail was given of the shooting of the nets, and it was stated that " a " large quantity of herrings having then and there been " taken in the said nets, and beiug thus within the power " and control " of certain persons, the accused cut the nets, and stole herrings from them (2). It does not make a charge of theft irrelevant, or make facts otherwise relevant to infer theft amount only to Use of words breach of trust, that the narrative states the accused to have d™ee not^ml^e been " entrusted with " the articles he has stolen. Where a teller of a bank was said to have been " in that capa- " city" — " entrusted with large sums " — it was held that the known duties of a teller made such a statement Form where consistent with a charge of theft (3). Where a statute ciares\a^act enacts that the doing of a certain act shall be deemed a to be theft. theft, it is sufficient to charge the doing of the act in the terms of the Statute. Thus, it being declared by a 1 Dan. A. Murray and Eob. Tait, Notes 26. H.O., Nov. 30th 1829; Shaw 225. 3 Bob. Smith and Jas. Wishart, 2 John Huie, Inverary, Sept. H.O., May 18th 1842 ; 1 Broun 342 10th 1842; 1 Broun 383 and Bell's and Bell's Not«s 18. theft irrele- vant. INDICTMENT. 399 statute that any one who " shall wilfully and know- Modus. " ingly take and carry away any oysters or oyster brood " from any oyster hed, laying or fishing, being the pro- "perty of any other person," &c., "shall be deemed '' guilty of theft," it is not necessary to use the word " steal" or the like, but a repetition of the statutory expressions constitutes a sufficient charge (1). ' Where a theft is committed near the border of Scot- Form in oon- land, or the line which divides the land within the jurisdiction of one Circuit or County Court from that within the jurisdiction of another, so that it may be difficult to fix whether the crime was first committed in the one place or the other, it is competent to support the jurisdiction of the Court in which the accused is indicted, by inserting in the charge a statement such as this : — " The said theft, if originally committed in " that portion of the said field or park which is situated " in Ayrshire, being forthwith continued within the " shire of Eenfrew, by you, the said James Stevenson, " conveying the said cow to NeUston, in the parish of " Neilston aforesaid " (2). Second, Description of Property. — Stolen goods or stolen goods money must be described in the indictment (3). But SrSjed a minute description is not required (4) — " a gold or '^rf "ii^n u^. "other metal watch" — "a cheese" — "a bank or necessary. " banker's note for five pounds." Such general ex- 1 Eob. Thomson and Geo. Mac- oyster stealing containing such kenzie, H.O., Dec. 26th 1842 ; 1 words has been sustained. Will. Broun 475 (Indictment). It may Garrett and Thos. Edgar, H.C., not, however, be incompetent in June 4th 1866 ; (indictment, Adv. such a case, where the statute de- Lib. GoU). Clares that an offender shall be 2 Jas. St'evenson, Glasgow, Deo. deemed guilty of " theft" to use 27th 1853 ; 1 Irv. 341. the ordinary words "wickedly and' 3 John Graham, H.C., March 1st "feloniously steal," &c, which are 1830; Bell's Notes 204 — Thos. applicable to a conmion law charge, B. Harper, Jan. 8th 1840; Bell's the statute applying the common Notes 205. law, as it were, to the offence 4 Daniel Traser, H.C., June 3d created by it. An Indictment for 1850 ; J. Shaw 366. 400 INDICTMENT. Modus. Elind of money must be speci- fied. Trifling inao- ouraoiea not held fatal. Proprietor need not be stated. pressions even as "a ring," "a horse," or "a dog," have been held to constitute a sufficient description (1). But a libel charging theft of " various large sums of money, " amounting in all to ^10,715, 5s. 8d., or thereby," was held irrelevant, on the ground that there was no state- ment of the sorts of money, or that these were unknown to the prosecutor (2). A good specimen of the kind of description held sufficient in cases of theft of money, is given by a later case — " ^1053, 10s. sterling money, " or thereby, in bank or banker's notes and silver or "other coin, the particular amount and description of " notes and coin being to the prosecutor unknown " (3). Trifling inaccuracies of description will be disre- garded. "Where a plaid was described as " a black and "white" checked plaid, the objection that it was blue and white was repelled, such a plaid being in common parlance "black and white check," the blue being so dark as to make it very difficult to distinguish it from black (4). Third, the Owner or Possessor. — The person in whose possession the goods were, must be specified (5) or it must be stated that the owner or possessor is unknown. But it is not necessary to state who is the true pro- 1 Margaret Montague, H.O., May 28th 1855 ; 2 Irv. 165 and 27 So. Jnr. 403^Geo. Clarkson and Peter Mac- donald MaySth 1829 ; Bell's Notes276. 2 Kob. Smith and Jas. Wiehart, H.C., March 23d 1842; 1 Broun 134 and Bell's Notes 204. 3 Bob. Potter, Glasgow, May 2d 1844 ; 2 Broun 151.— It is right to call attention to the subsequent case of EbenezerBeattie, Dumfries, April 25th 1860; J. Shaw 356, where a libel charging theft and embezzle- ment alternatively was found rele- vant, though in the charge of theft, the only description given was "£S 13s. sterling," vrithout any statement of the kind of money. Lord Ivory's MS. Notes bear that the relevancy was objected to, but not on this ground. The report by Mr J. Shaw does not mention that any objection was taken. The date is also given incorrectly in the Eeport, 28th April should be 26th April. Lord Ivory's MSS.— This Circuit case can hardly be relied on as an authority in support of the loose mode of libelling which was checked by the High Court in Smith and Wishart, supra. 4 Kelly or Henry v. Young, H.O., July 21st 1846; Ark. 105. 5 John Balfour and others, H.O., June 27th 1842 ; 1 Broun 372 and Bell's Notes 202 (a stouthnef case). See also Andrew Campbell, Ayr, April 20th 1825; Shaw 140. INDICTMENT. 401 prietor, provided the person in whose lawful possession Modus. the goods were is specified, or even the person in whose possession they were, though that possession was not a lawful one (1). But the circumstances of such a Questioowhere ^ ' . doubtful case as this last, may make it necessary to state the whether ousto- charge with great care. An indictment which set gionli'wfuTor forth that a little girl found an article and carried ^lawful. it to her parents, and that they stole it, heing the property or in the lawful possession of a party named, "or in the possession" of the girl herself, was held ambiguoiis and therefore irrelevant, as it depended on the nature of the possession by the child, whether the parents were guilty of theft or not. If the child's possession was an unlawful possession, and the act of the parents was only retaining, what she had stolen, their offence would not have been theft but reset (2). "Where a theft is committed simultaneously with the Theft where murder of the owner of the property, it is not unusual to ^^"^^ ™'"" allege the articles taken to have been the property of the deceased, or of his " heirs and executors " (3). EoBBEEY (p. 62.) — A charge of robbery sets forth — Robbery, form I. That the accused did attack and assault a person described ; and — II. Did, by force and violence, take from his person or custody, and did rob him of — III. Certain property described.* Usually the particulars of the assault are given, such Particulars of as that the accused did throw him to the ground, and did ^^^^^^ usuaUy given. strike him, &c., &c., but the statement above given is a sufficient charge (4). 1 Elizabeth Begga or Tonner, 14th 1859 ; 3 Irv. 425 and 31 So. Glasgow, Deo. 22d 1846; Art. 215. Jur. 528. — See also Samuel Wood and Angus 3 Jas. Blair, June 7th 1830 ; BbU's Marshall, Jedburgh, Oct. 6th 1862 ; Notes 44. BeU's Notes 23. 4 Jas. M'Mulkin, H.O., March 23d 2 Blackies v. Gair, H.O., June 1858; 3 Irv. 62. * The rules as to the description of property taken by robbery are the same as those applicable to theft. Vide 399. 2 c 402 INDICTMENT. MoDua. The violence must be to per- Gons. Case of mob acting to the terror of the lieges, and carrying off property. "Want of ex- pression indi- cating force fatal. Not indispen- sable to use word "theftu- " ously." Piracy, di£Scult to give general form of charge. Stoutheief (p. 62.) — A charge of stouthrief sets forth— I. That the accused did certain acts of violence de- scribed towards individuals, II. That the accused did then and there, wickedly, masterfully, and feloniously steal and carry off certain property described,* III. Being the property, or in the lawful possession, of a person described. The violence set forth must be applied not only to pro- perty but to persons. But it has been held, though with hesitation, that a particular charge against a mob of mas- terfully carrying off property from a field, combined with a statement in the general charge that the whole acts of the mob were to the terror and injury of the lieges, was a relevant charge of stouthrief, although there was no direct connection of the carrjdng off of the property with any injury to individuals in the libel (1). Where the pro- perty carried off was not said to have been " masterfully" taken, but only " wickedly, feloniously, and theftuously," the charge of stouthrief was departed from (2). On the other hand, it is not absolutely necessary that the word " theftuously " should be used, provided it be averred that the property was " masterfully " carried off (3). PiEACY (p. 68.) — It is difficult to give any precise rules for the structure of a charge of piracy, as such a charge must necessarily vary with circumstances. But there are two classes into which all charges of this sort may be divided, viz., cases where the crime consists in those on board a ship seizing her, and cases in which pirates use a ship already in their possession, for the purpose of 1 Martin Handley and others, ling, April 25th 1844 ; 2 Bronn 145. Glasgow, Dec. 30th 1842 ; 1 Broun 3 Andrew Kennedy and John 508 and Bell's Notes 202. Macdougal, H.O., May 19th 1851 ; 2 Thos. M'Gavin and other, Stir- Lord Justice Olork Hope's MSS. * The rules as to the description of property taken by stouthrief are the same as those applicable to theft. Vide 399. INDICTMENT. 403 committing depredations on other ships. In the first of Modus. these cases the requisites of the charge seem to he — I. A narrative setting forth the name of the ship, the ]f ^^!^' ^^'^^"^ port from which it sailed, the time of its sailing, its board, owners, master, and all similar particulars so far as known ; and, that while the ship was on its voyage from that port to another port named, the accused did — II. Wickedly and feloniously do certain acts described (such as binding the master, mate, &c., or setting them adrift in a boat, &c., &c., as the case may be), and did seize and take masterful possession of the vessel, and ap- propriate it to their own uses and purposes, &c., &c. Where the offence consists in a piratical vessel attack- ^jj™ y„ ^^^^^ ing and plundering other vessels, or the like, the re- others, quisites seem to be — I. A narrative as in the previous case, and an aver- ment that the accused being in a certain vessel described, did— II. Do certain acts described (such as hailing and bringing to the vessel, or bringing her to or disabling her by firing, or as the case may be), following this up by a statement of the depredations actually committed. It is obvious that in the case of piracy very consider- Considerable able latitude may reasonably be taken in describing the missibiem"^" vessel, &c., as well as the plunder taken, and other par- P^^^^y. ticulars, as though there may be abundant evidence of the piracy, the very act of the accused may have made the means of evidence as to minor details extremely scanty (1). Weecking (p. 69.) — A charge of wrecking would pro- ■Wrecking, bably, in the present state of the law, be made a charge °"^ ° " "''^^' of theft. The requisites of a charge at common law seem to be — I. A short narrative of the wreck, giving as far as pos- sible particulars as to the port to which the ship be- longed, and the owners, &c. 1 Hume 1. 483, 484. 404 INDICTMENT. Modus. Statutory offence. Beset, form of charge. Express state- ment of theft essentiaL Difficulty of libelling reset of robbery. II. A statement that the accused did wickedly, &c., take and carry away from the said wreck, III. Certain property descrihed (in a similar manner to a case of theft.) Where the charge is under the Merchant Shipping Statute (1), the requisites seem to be — I. A narrative of the vessel having been stranded (or being derelict or being otherwise in distress), at a certain place described (being " on or near the shore of the sea," or any tidal water, within the United Kingdom), and — II. That the accused did take to a certain foreign place described, the vessel (or wreck, or certain articles be- longing thereto, as the case may be), and — III. Did sell the same in some manner and to some person described as fully as can be done in the cir- cumstances of the case. Eeset (p. 70.) — ^A charge of reset states — I. That certain property was stolen (or taken by rob- bery or stouthrief ), at a certain time and place, by a certain person, or by some person or persons unknown: and — II. That the accused did " reset and receive the same, " well knowing the same to have been stolen " (2). , It is absolutely essential that there be a substantive averment that the articles said to have been resetted were stolen, the statement that the accused knew them to be stolen not being held equivalent to this (3). Where articles are HbeUed as stolen and resetted, any difference in the description of the resetted articles from those de- scribed as stolen constitutes a good objection to the Hbe] (4). The strict line drawn in the law of Scotland between theft and robbery has created considerable difficulty in 1 Act 17 and 18 Vict. o. 104, § 479. 2 Win. Dyer, Glasgow, Sept. 21st 1821 ; Shaw 56. 3 Donaldson v. Buchan, H.C., Nov. 18th 1861 ; 4 Irv. 109 and 34 Sc. Jur. 31. 4 W. White and others, Glas- gow, Sept. 26th 1823 ; Shaw 106. INDICTMENT. 405 reference to the mode of charging the crime now under Mopua. consideration. In early times it was common to charge the reset of property taken by robbery as reset of theft. But in later practice reset of property taken by robbery has been frequently libelled and found relevant (1). And doubts have even been expressed whether reset of theft could be sustained as a good charge, the only crime previously libelled being robbery (2). But, in a later case, where the prosecutor had libelled robbery and reset of robbery, it was laid down that he could equally competently have libelled robbery and reset of theft (3). In a later case still, however, in which the prosecu- tor set forth reset of theft and reset of robbery alter- natively in reference to one act of robbery, the charge of reset of theft was withdrawn in deference to doubts expressed by the Court (4). The matter is thus left in an extremely unsatisfactory state, caused entirely by the absolute distinction drawn between theft and rob- bery. If the two crimes are totally distinct, it certainly does seem illogical to charge reset of the one crime as applied to articles taken in the mode which the law holds to constitute the other. And on the other hand, it seems very absurd to bind the prosecutor, in a case of robbery, to prove that the resetter knew that the articles received by him were taken by violence, which is indis- pensable, if the rule be once established that receiving goods taken by robbery must be charged as reset of pro- perty taken by robbery (5). In the ordinary case the resetter knows only that what he receives has been dis- honestly come by. And even supposing that he do 1 Isabella Cowan and others, 21st 1846 ; Ark. 203 (Lord Justice H.O., March 10th 1845 ; 2 Broun Clerk Hope's charge). 4 Jas. Denholm and Thos. Mill, 398. 2 Isabella Cowan 'and others, H.O., May 31st 1858 ; 3 Irv. 101. H.C., Mar. 10th 1845 ; 2 Broun 398 5 Melville Anderson, H.O., Deo. (Lord Moncreiff's opinion). 21st 1846 ; Ark. 203 (Lord Justice 3 Melville Anderson, H.O., Deo. Clerk Hope's charge). 406 INDICTMENT. Modus. know whether the taking has heen stealthy or violent, it would, in most cases, be almost impossible for the pro- secutor to prove his knowledge. Besides, it is often a nice question of law whether the facts which actually- occurred amount to robbery or only to theft. But it is hard to see how this anomaly can be got rid of, as long as the extraordinary theory that the offence of the thief and the offence of the robber do not belong to the same class, shall continue to be the law of Scotland (1). Breach of trust BeBACH OF TeUST AND EMBEZZLEMENT (p. 74.) — A ment,™ orm^oV charge of Breach of Trust and Embezzlement * sets forth — charge. J j^ narrative of the origin and quality of the trust, II. A statement of the mode in which certain pro- perty came into the accused's hands for behoof of his employer, and of its amount, and — III. An averment that the accused failed to pay or account to his employer, and " did wickedly and feloni- " ously, and in breach of trust reposed in him by the " said John Brown, embezzle and appropriate to his " own uses and purposes, the said property," or a por- tion of it described, " being the property of the said," &c. form of em- It is not neccssary to describe the form, of money in neednotiw'^^ cascs of embezzlement, a statement of the sum — " £Q described. « sterling" being sufficient (2). But where it was alleged that the accused received a sum "partly in bank " cheques, which you forthwith cashed," the Court stated that the prosecutor should have set forth whether the ac- 1 The usual practice now is to "stolen," which they were not charge the accused with resetting, according to the rule of law above " well-knowing the said articles to stated. On the other hand,, if the " have been taken by robbery or to prosecutor cannot prove that the " have been stolen." But this is resetter knew that the articles had plainly a lame device. For if the been talsen by robbery, how can he prosecutor proves that they were obtain a conviction of reset of taken by robbery, then it is illogical robbery ? to convict the resetter as having 2 John Eae, H.C., May 16th taken them, knowing them to be 1854; 1 Irv. 472. * For cases of embezzlement under the post-office statute, in<2e 408. INDICTMENT. 407 cused had autliority to cash the cheques, and where they Modus. were cashed (1). As regards the description in the libel of the ownership of the property emhezzled, the nature of the trust set forth may he a ground for allowing a less ample statement of the ownership to pass than would be admissible in an ordinary case. Thus, where the accused was described as being the treasurer of a society, the funds of which he was charged with embez- zling, and the funds were described only as belonging to the society or the members thereof, it was held that in the circumstances this was sufficient (2). Post Office offences (p. 81). — Opening or Detaining P.O. offences, Letters (3). — A charge of opening or detaining letters Sters!^' *° ' generally commences with a preliminary narrative that the accused was employed under the Post-Office in a particular capacity described, and that a letter addressed in a manner described, or in a similar manner, was posted at a certain post-of&ce, or delivered to the ac- cused, or the like, and that — I. "While so employed under the Post-Office of the "United Kingdom," he did "contrary to his duty" open (or, in a manner described,) procure or suffer to be opened — or wilfuUy detain or delay, or procure or suffer to be ' detained or delayed, as the case may be (4), II. " The said letter, being at the time a post-letter, and the property of Her Majesty's Postmaster-General." Where the offence consists in detaining or delaying only, the length of time of the detention should be 1 Eob. Stevenson, H.O., Nov. and at common law, and the sub- 8th 1854 ; 1 Irv. 571. sumption of an indictment drawn in . 2 Smith V. Lothian, H.C., March this form may contain phrases and 21st 1862; 4 Irv. 170 and 34 So. additions to the statutory words, Jur. 467. which would not be competent if 3 In drawing indictments under the statute alone was founded on in the Post-Office Acts, care must be the major proposition, taken in following styles already 4 It is competent to quote the adopted. It is common to charge whole clause, leaving it to the proof the offences both under the statute to show what was actually done. 408 INDICTMENT. Modus. stated, e.g., thus : — from " the time he received the same Where delay- "till on OP ahout the 5th day of August 1865" when — tme^ofdliay (something happened, such as its being seized in his f ed'fled^ custody, 01 his giving it up himself, as the case may be). Property of Besides stating that the letter was the property of the Post-master Postmaster-Gcneral, it is usual to add an alternative cieut averment Statement that the letter was the property of some other as to property. pgj.gQ^ named, such as the sender or the person to whom it was addressed, but it is not necessary to do more than state it to have been the property of the Postmaster- General (1). In some cases the words " or in the law- Use of words "ful possession" are prefixed to the words "of Her '''poss''essbn"' " Majesty's Postmaster-General." But these words are not justified by the section of the statute. Embezzlement, Embezzlement, &c., of Letters by Oificicds. — Such &c., of letters. , i. • • li ■ -^^ charges begin, as m the previous case, with a narrative of the employment of the accused, and of a certain letter coming into accused's hands, and charges that the accused did — I. While so employed under the Post-Ofi&ce of the United Kingdom, steal, or for some purpose to the prose- cutor unknown, embezzle, or secrete or destroy (2) — II. " The said letter, being at the time a post-letter and the property of Her Majesty's Postmaster-General" Case of letter Where the letter tampered with contained an enclo- anciosure^ sure, the charge wUl be as above, except that in the preliminary narrative there must be inserted a state- ment describing the " chattel or money or other valuable " security enclosed," — e.g., " and containing a shilling piece of the Queen's current silver money," (or as the case may be), and in the description of the offence, a statement such as this — " and which post-letter con- " tained therein a shilling piece of the Queen's current " silver coin as above libelled." 1 Act 3 and 4 Viot. u. 96, § 66. course, left out when the letter is 2 This last alternative is, of to be produced. INDICTMENT. 409 Thefts of Money, &c., from, Post-Letters. — ^A charge of Modus. theft from letters sets forth — Theft of I. A narrative describing the letter by its address, or ^°S. ™™ stating that the particular address was unknown, and that it contained a certain chattel or coin or security (as the case may be) describing how it became a post-letter, as by its being placed in a letter-box, or the like, and charges that the accused did — II. Steal from or out of the said post-letter " the said " bank or banker's note,'' (or as the case may be), " the "property of Her Majesty's Postmaster-General." Stealing Post Bags or Letters. — A charge of stealing Theft of bags bags or letters sets forth — I. A narrative of the circumstances, such as the mak- ing up and transmission of a bag described from one place for another place, (or the accidental loss of a bag or letter at a place described, or the delivery of a letter into a certain post-office, or the like, as the case may be), and that the apcused did — II. Steal the said post-letter bag (or the letters) before described (or as the case may be), from the post-office (or the bag or mail, as the case may be), being " the property "of Her Majesty's Postmaster-GeneraL" Stopping Mail, with felonious intent — 'No charge Feloniously of this sort has occurred in practice. It should set forth — stopping mail. I. A narrative of the particulars of the dispatch of the maU, and that the accused did — II. Stop the said mail in a manner described, III. That the accused acted with intent to rob or search the same. Stealing or taking Bags or Letters sent by Mail-packet, stealing from or opening such Bags. — No charge for this offence has ^^'^'P*"''^*' occurred in practice. It should set forth — I. A narrative of the making up and transmission of the bag by a certain mail-packet, (and where the offence consists iQ taking letters out, a narrative in reference to the letters, such as that there were put into the bag cer- 410 INDICTMENT. Modus. Heceiying things feloni- ously taken. Keeping wrong delivered or found letters, &o. tain letters addressed in a manner described, or that the addresses are unknown), and that the accused did — II. Steal or unlawfully take away the said post-letter bag (or take the aforesaid letter(s) out of the said post- letter bag — or did unlawfully open the said post letter bag, as the case may be), III. (Where the offence is stealing or taking) "being " the property of Her Majesty's Postmaster-General." Knowingly receiving Post-Bags or Letters, or Articles from Letters, which have been taken feloniously. — No charge for this offence has occurred in practice. It should set forth — I. A narrative, that at a particular time and place a certain post-letter bag (or letter or chattel) described, was stolen or taken or embezzled or secreted, in contra^ vention of the before recited th section of the said before recited Act," (1) by a certain person described, or some other person unknown (2), and that the accused did — II. Eeceive the said post-letter bag, (or as the case may be), III. Knowing the same to have been feloniously stolen, taken, embezzled, or secreted, and knowing the same to have been sent or to have been intended to be sent by the post. Secreting or keeping a wrong delivered Letter, orfownd Post-Bags or Letters. — This offence would probably be prosecuted summarily. The essentials of the charge seem to be a narrative of the incorrect delivery of the letter to the accused (or of the sending and loss of the bag or letter and the finding of it by the accused, or by some other person described, or by some person un- known), and a statement that the accused did fraudu- 1 Some such statement as this referring back to the major proposi- tion seems necessary, the Act say- ing the receiving must be of an article taken in such a manner as to constitute the statutory felony. 2 Where the section founded on in reference to the stealing, &c., applies only to post-ofSce servants, this alternative would require to ba so limited as to apply only to such. INDICTMENT. 4] 1 lently retain (or wilfully secrete or keep or detain — or Modus. having teen required by a certain officer of the post- office to deliver up the same, did neglect or refuse to do so, as the case may be) the said letter (or bag). Stealing, &c., printed matters sent hy Post. — The charge stealing, &o., in this class of offences sets forth — ^° ^*° * ^ I. A narrative of the employment of the accused, and of a certain printed newspaper, or other packet described, being a packet without a cover, or in a cover open at the ends, having come into the accused's hands in the course of conveyance or delivery by the post-office, and alleges that the accused did — II. While so employed under the post-office, steal, or for some purpose to the prosecutor unknown, embezzle or secrete (or destroy) — III. The before described packet, being at the time in the course of conveyance or delivery by the post, and the property of Her Majesty's Postmaster-General. It is to be observed, as regards all the offences under Question as to the Post-Office Statute, that it is sufficient to use the " wioM^ and words of the statute, " did steal," or " did embezzle," &c., "feloniously," without using such words, as "wickedly and feloniously," or "theftuously away take," (1). But these words may, of course, be used in the subsumption, where theft at common law is charged as well as the statutory of- fence (2). HOUSEBEEAKING WITH INTENT TO STEAL (p. 84). — To 1 George G. Monro, H.C., March statutoryoffenoes, although they are 12th 1840; 2 Swin. 498 (Indict- notusedintheAct,wherethestatute nient). makes use of expressions which 2 Thomas Scott, H.O., Nov. 11th have a fixed meaning in common 1853 ; 1 Iry. 306 (Indictment). — law, such as " steal — embezzle," John Maoleod, Inverness, April 28th &c. The argument for allowing 1858 ; 3 Irv. 79 and 30 Sc. Jur. 521. them to be used is, that the statute, — It is a question not yet expressly by adopting a common law term, decided whether the words "wick- imports into itself qualities which edly and feloniously," and similar attach to the term at common law. words may not be used in the case of Vide note 1, p. 399. 412 INDICTMENT. MODDS. Housebreak- ing, form of charge. Mode of viola- tion must be specified. Elaborate statement unnecessary. Latitude of " some other " manner" permissible. Opening doors. Specification of fastening of doors. Illegal reten- tion of key. constitute a good charge under this head there must be— I. A statement of the mode of violation of the security of the building. II. A statement as to the entering of the premises. III. An averment of intent to steal. As regards the violation of the building, it is not suf- ficient where housebreaking is charged to aver that the accused broke into the premises libelled (1). It must be set forth how the act was done, whether by forcing doors or windows, or by using false keys, or the true key unlawfully obtained, or in whatever other way the act was done. But a very elaborate statement of the mode is not required, and the prosecutor is always enti- tled to the latitude of "in some other manner to the " prosecutor unknown." It is sufficient where a door has been forced open to charge the act as done by " forcing " open the outer door (2) of the said house " (3). Where the housebreaking is charged as committed by opening doors, the absence of an averment that the door was locked, may be fatal to the charge (4). But where housebreaking was charged as committed by " opening " the lock and padlock " of a door, these words were held to imply that the door was locked (5). "Where it was charged that the accused having resigned or been re- 1 Hume ii. 182, case of Mac- kenzie in note * . — Alison ii. 276, case of Hart there. 2 Wilhelmina M. Eraser, Dum- fries, April 27th 1840; 2 Swin. fi02 and Bell's Notes 199. 3 John Craig and Jas. Brown, Glasgow, Sept. 22d 1829; Bell's Notes 199.— Will. Den, Aberdeen, April 1833 ; Bell's Notes 199.— Some doubt was thrown upon this by one reported decision, viz., John Humphreys and others, Dumfries, May 1st 1837; 1 Swin. 498 and Bell's Notes 199; but the judge who presided at that trial after- wards indicated that there must have been some specialty in the case which did not appear in the report. — See Will. Eitchie or Ro- bertson, H.O., Deo. 4th 1837 ; 1 Swin. 695 (statement by Lord Jus- tice Clerk Boyle). 4 In the case of Peter Smith, Glasgow, Jan. 9th 1836; 1 Swin. 27, a charge of housebreaking was passed from in consequence of such a defect. B John Parquharson, H.O., June 26th 1854 ; 1 Irv. 512. INDICTMENT. 41 3 moved from a situation, " illegally or improperly " re- Modus. tained the key of it, and committed housebreaking with it, the words " or improperly " were deleted, as tending to create ambiguity, and the specification was then held sufficient to imply that the accused had no right to keep the key, but was under an obligation to deliver it up (1). Where housebreaking is committed by opening a Opening window, it is sufficient to libel the act as done "by " forcing open one of the windows of the said " house " (2), or " one or more of the windows of the " said house " (3). The species facti set forth must apply directly to the statement building described as broken into. Where the building ™irettiy td^ was described as " a barn or other outhouse," and the building said breaking set forth consisted in overcoming the security into. of " one of the doors of the building wherein the said " barn or outhouse is situated," the charge was held irrelevant (4). On the other hand, where the charge was put thus : " by forcing open the barred or bolted " door of the byre forming a part of and leading into the " said premises, and by forcing open a door between the " said byre and the dwelling-house, . . . or by one " or other of these means," it was held that the Court could not anticipate the proof, and that the prose- cutor was entitled to this alternative, to meet the case of the byre being found not to form part of the same building with the house (5). As regards the averment of the entering of the pre- 1 Henry Y. Jardine, H.O., July Deo. 4tli 1837 ; 1 Swin. 695.— 19tli 1858; 3 Irv. 173.— It would Will. Den, Aberdeen, April 1833; undoubtedly have been better if it Bell's Notes 199. had been averred, as suggested by 3 Will. Harvey, Nov. 7th 1833 ; Lord Deas, that it was the accused's Bell's Notes 200. known duty to have delivered up 4 Jas. Boss and Jas. Stewart, the key. Inverness, April 19th 1842; 1 2 Hume i. 100, cases of Love: Broun 294. Anderson : and Johnston in note 3. 6 Jas. Arcus, H.O., July 26th — WiU. Bitohie or Eobertson, H.O., 1844 ; 2 Broun 264. 414 INDICTMENT. Modus. Entering of the premises. Care necessary not to aver entrance in too general terms. Intent. Housebreak- ing with intent to break into adjoining house. Violation and entering libel- led as above. Intent. Question whether aver- ment of intent sufficient, without an averment of facts by which intent mani- fested. mises, care must be taken not to use expressions which may bind the prosecutor to prove an actual bodily entrance of the premises, and by which he may be excluded from proving the mere passing in of the hand, or a stick. Where the prosecutor averred in general terms, and without any specification, that the accused did " break into and enter," and had " obtained " entrance," and the evidence showed that the hole made in breaking in would not allow the entrance of a person, the Court directed the jury to acquit (1). It would have been otherwise if the charge had specified the mode of entry so as to include the case of an inser- tionof the hand only (2). Lastly, as regards the intent to steal, the prosecutor is only required to aver in so many words, " and this you " did with intent to steal" HOUSEBEBAKENG WITH INTENT TO BBEAK INTO AND STEAi FEOM AN ADJOINING HOUSE (p. 84.) — The crime of breaking one building with intent to break another is stated in the same manner as housebreaking with in- tent to steal, as regards the violation and entering. The intent is stated thus : — " And this you did with intent, " when within the same, to break into and enter, and to " steal from, the adjoining shop or premises in L " Street," &c. &c. No case has as yet arisen to decide the question whether the above statement would be suffi- cient of itself to entitle the prosecutor to prove the in- tent. In the only case reported, the prosecutor, for security, added a statement, that the accused had so far proceeded to effect the alleged purpose, by cutting the 1 Alex. Bose and John Taylor, Perth, Oct. 12th 1842; 1 Broun 437 and Bell's Notes 198. — See also Bob. Campbell, H.C., Nov. 29th 1841 ; 2 Swin. 580 and Bell's Notes 40. 2 Margaret Fitton and others, June Tth 1830 ; Bell's Notes 39.— Will. H. Wightman, July 12th 1832 ; Bell's Notes 39.— WilL Har- vey, Nov. 7th 1833; Bell's Notes 39.— Will. Vair and Simon Mea- doworoft, Deo. 2d 1834; Bell's Notes 39. INDICTMENT. 41 5 partition between the two buildings (1). But it is easy Modus. to suppose cases where the intent could be proved, though no overt act of attack had been made on the security of the second building ; as for example, in the case of one of a gang turning Queen's evidence, or of the thieves being overheard when expressing the intention. It is therefore probable that the charge of intent would be held relevant without any further specification. FoEGEEY, &c. (p. 88.) — It will be necessary to notice Forgery, &o. the forms in relation to the act of forgery or falsification, menteTa^ to***' separately from the act of uttering, as where the act of faisiflcatton forgery or falsification, as well as the uttering, is to be charged against the accused, the forgery is libelled in a distinct charge, as if of itself constituting a relevant point of dittay (2). The charge of forgery sets forth — Form of charge I. Any narrative that may be necessary as to the °' f<"^sery. writing out of the document, or the like, and — II. That the accused did wickedly, &c., " forge and " adhibit, or cause procure to be forged and adhibited " to the document the signature " John Brown," III. " intending the same to pass for and be received " as the genuine signature " of a certain John Brown described. 1 Will. Thompson and others, a false writ which forms the eseenoa H.C., Mar. 3d 1845 ; 2 Broun 389. of the crime, and there seems no 2 This is a mode of charge reason why, in every case of this scarcely consistent with strict logi- class, the major proposition should cal rule, and which accordingly it not simply charge the using and has been attempted to explain by uttering, and the minor set forth saying that the words forgery or the forgery or falsification as narra- falsehood (applied to writs) imply tfve only, as was formerly quite «se as well as fabrication (Duncan common in the case of charges of Stalker and Thos. W. Culhbert uttering forged bank notes, where H.C., Jan. 22d 1844 ; 2 Broun 70). the fabricators were unknown ; or But this is hardly consistent with if it is to be held an aggravation of practice, which holds a. verdict of a charge of uttering a false writ guilty of "forgery" to be insufS- that the utterer was himself the oient to warrant any punishment. fabricator, then it might be stated The error consists in separating as an aggravation in the major two things which might be put proposition. together. It is using and uttering 41(5 IKDICTMBNT. MODTTS. Fictitious or illegible sub- Bcription. ( gemiine sig- nature. Falsificatloii. If such be the fact, the signature may be stated to be wholly fictitious, or it may be stated alternatively that it was intended to pass for the signature of a person described, or was wholly fictitious. Or where the for- gery is such that there may be uncertainty as to what signatures were intended to be counterfeited (from the badness of the writing or otherwise), the prosecutor may add, " or other names to the prosecutor un- Writing above '' known " (1). In the case of a writing being forged above a genuine signature, the statement would be, that the accused having procured a paper on which the words " John Brown " had been previously written in the genuine handwriting of a particular John Brown described, wickedly, &c., and without authority wrote in above the signature, a letter of guarantee, or a bill, or the like. Where the case is one of falsification the charge describes the act done, such as that the accused did alter the document in a manner described, as by altering the date, so as to make it bear to be a different document. Some statement as to the forgery is indispensable. Thus, where a charge of uttering forged documents did not in any way specify wherein the forgery consisted, nor make any statement whatever as to where and by whom the forgery was committed, or that the mode of the forgery was unknown to the prosecutor, the Court held the libel irrelevant (2). As regards the way in which the document must be described, the rule is, that the description need not be elaborate, but must be such as not to mislead. Where the document was described only as a promissory note for a certain amount, bearing a certain date, and payable to certain parties four months after date, and no men- tion was made of any other signatures upon it but the one acceptance, said to be forged, whereas the document Description of document 1 Eob. Brown, Ayr, Sept. 1833 ; Bell's Notes 51. 2 Patrick Branan and others, H.C., March 20th 1820; Shaw 11. INDICTMENT. 417 produced bore to be accepted by others, tbe objection Modus. was sustained that the document was not properly described (1). On the other hand, where the indict- ment had given the terms of a bill, and alleged that the accused forged the signature of A. B., as drawer and indorser, but did not mention the fact that the ac- cused had appended his own signature as acceptor, it was left by the Court to the Jury to decide, whether there was any doubt of the identity of the bill pro- duced with that libelled (2). The charge of uttering sets forth that the accused Form, of j.-i charge of 'IIU uttering. I. Use and utter the forged (or vitiated) document, or cause or procure it to be used and uttered, II. As genuine, III. Well knowing it to be forged (or vitiated) as the case may be, rV. In a certain manner described. A charge of uttering a forged document is bad, unless statement that the uttering is stated to be " as genuine " (3). A nana- genSnf ^ tive which sets forth the forging of a signature to a i^iiispensaUe. 1 David Robertson, Glasgow, the prosecutor proposed to put the Oct 5th 1847; Ark. 382. Lord document in evidence. — See John Wood's MSS. in this case contain Muir, Ayr, Sept. 13th 1836 ; Bell's this note: — "Sustain objection; Notes 235, where Lord Moncrieff " ought to be so described as to held that such an objection could " shew the extent and character of not be considered till the document " the document as regards the ob- was tendered in evidence. " ligation which was intended to be 2 John Muir, Ayr, Sept. 14th "represented as undertaken." — The 1836 ; 1 Swin. 286 and Bell's Notes objection in this case was made to 277. The distinction between this the relevancy, but it is thought that case and that of Eobertson in the though a good objection, if made as previous note, is to be found in the an objection to the proof not corre- excerpt from Lord Wood's MSS. spending with the libel, still it In Muir's case the description was ought not properly to have been not misleading as to the extent or sustained as against relevancy. The nature of the obligation which the inaccuracy of the description could forged document was intended to only be ascertained by comparison impose. with the document produced, and 3 Alex. Baillie, March 14th 1825 ; this could not properly be done till Shaw 131. 2d 418 INDICTMENT. MoDcs. Deed may be described as forged though signature alone forged. Case of stamp ■with forged signature uttered to be filled up and discounted. Fraud, &o. Cheating by assuming character or passing off article. deed, the rest of the deed not being stated to be forged, or fabricated, and proceeds to charge the uttering of the deed as " the said forged bond," is a relevant charge (1). But it is usual and safe to add these or similar words, " having thereon the forged subscription above libelled." In the peculiar case of a blank stamp bearing a forged signature being uttered, by being given to a party that he may fill it up, and then discount it, or keep it as a security, the libel, though relevant to infer uttering by implication, ought to have a statement at the close of the charge that the accused did " thereby use and utter " the same as a genuine bill to the said A. B.," or some equivalent expression (2). Falsehood, Fkaitd, and Wilful Imposition, &o., (p. 98 to 114). — The modes in which crimes of this sort may be committed are so numerous, that to lay down any fixed form for libelling them, is impossible. It must sujBBice to give a few illustrations, and to call attention to points which have been decided in reference to such charges. Where the offence consists in cheating others, by assuming a false character, or palming off a false or adulterated article, or passing off a fictitious orfabricated document, or, in short, by any false representation, however made, and for whatever criminal purpose, the charge must set forth — I. The narrative of the act donq|^ stating it to have been falsely and fraudulently done, against a person described, II. That, by means of the false representation, the accused did impose upon and deceive the person, and induce him to do a certain act (such as giving board and lodging for a certain period, or paying a sum of money, or causing a third party to be apprehended, or the Kke), and was thus cheated, imposed upon, &c., by the accused. In the case of a person ordering goods on the under- 1 John Mason, Dee. 3d 1838; BeU'e Notes 185. 2 John Potter, Stirling, April 11th 1854; llrv.458. INDICTMENT. 41 9 standing of payment on delivery, and obtaining delivery Modcs. of them with the preconceived intention not to pay for Ordering goods ,,,•,, . ,, jj-u i. ■'^itli intention them, the charge is usually preceded by an averment not to pay. that the accused " having formed a fraudulent and felo- " nious purpose of obtaining the goods of others on false " pretences, and appropriating and applying the same to " his own uses and purposes, without paying or intend- " ing to pay therefor, did, in pursuance," — &c. And it i*fot necessary . , i/.iiii .,to aver accused IS not necessary, where such a fraudulent scheme is al- had not means leged, to aver farther that the accused had not the means '" p*^' to pay for the goods, or that payment was demanded, as the accused may have had the means to pay, and yet have intended not to do so (1). But in all charges of this sort Averment of there must either be a statement of a false device or frauduienr °' pretence by which the accused cheated the other party '"'*'"* , . . ■' . . essential. into doing some act, or there must be a distinct aver- ment of intent, entertained at the time of obtaining ar- ticles from another, not to pay for them (2). But where it is averred that the accused used false pretences, it is not necessary to allege that he knew them to be false (8). There must be a statement of a result. It is not suf- statement ficient to charge the accused with doing a fraudulent tiai."^*^ essen- act. This amounts only to an attempt to cheat (4). There must be an allegation of how the attempt took effect. The question what point must be reached in order to convert an attempt into a completed act, is one rather depending on the import of facts, and may be more properly treated in speaking of the crime itself* than of the mode of libelling it, as in judging of 1 Thos. P. Macgregor and Geo. Notes 93. Inglis, H.C., March 16th 1846 ; 4 Attempts of this sort, such as Ark. 49.^Adolph Kronacher, H.C., attempting to pervert justice, or June 21st 1852 ; 1 Irv. 62. the like, may be criminal, but the ^ 2 Jas. Chisholm, H.O., July 9{h nomen Juris, "falsehood, fraud, and 1849 ; J. Shaw 241. "wilful imposition" is not applic- 3 Eob. Meldrum and Catherine able where the fraud has not been Beid, H.O., May 8th 1838; Bell's completed. » Fi(fe 103 to 114. 420 INDICTMENT. Modus. Vitiating, &c., documents, form of charge. Prosecutor cannot be called on to quote docu- ment in every case. Bankruptcy frauds — charges variable. the relevancy on this point " the special circumstances " of each case " must he attended to (1). Vitiating, &c., Documents (p. 107.) — Crimes of this class are charged by giving — I. A narrative of the preliminary history of the deed, such as that a certain person, at a certain time, exe- cuted a deed of a particular kind in favour of a person described ; that — II. It was in " the following or similar terms," quoting it at length, III. (Where this is necessary), a statement of how and when it came into the accused's possession, IV. An averment that the accused did wickedly, fraudulently, and feloniously alter the deed (or destroy or mutilate it, as the case may be) in a certain manner described ; and — V. That the accused did so with intent to vitiate the deed and render it ineffectual (or with intent to suppress evidence of certain facts, or the like, as the case may be), and with intent to defraud person(s) described. It must be observed that the prosecutor, in a case of mutilation of documents, cannot always be expected to quote the document at length, as the very act of the accused may prevent the possibility of giving an accu- rate quotation. Por example, a charge which set forth that the accused had marked certain sums named in a pass-book as having been paid to him, to serve as a voucher or acknowledgment in favour of the party pay- ing them, and that the accused tore out the leaf on which the sums were marked with intent to defraud, was held relevant without objection (2). Bankruptcy Frauds (p. 116.)— Charges of this sort vary according to circumstances, so that it is only pos- 1 Geo. Kippen, H.C., Nov. 6th 1849; J. Shaw 276 (Lord Mon- creiff's opinion). 2 Geo. Malcolm, Glasgow, Sept. 25th 1843 ; 1 Broun 620 (Indict- mnet). INDICTMENT. 42] sible to give illustrations. "Where the accused is Modus. charged with fraudulently taking out sequestration, Solvent person though solvent, the charge sets forth — oWaining ^ I. A narrative that the accused falsely pretended to sequestration. be embarrassed in his affairs, and that he declared him- self insolvent in a manner described, and falsely and fraudulently represented that his assets amounted only to a certain sum, whereas — II. The truth was and he well knew that he had funds, or goods, or assets, or the Uke, to a much greater amount. In a charge of this sort it was stated that the accused General state- represented " that he had no means remaining," whereas aooused pos- the truth was that he had "considerable funds in &o'to!ar^' " money, and goods to a large value, and that debts to amount suffi- " a large amount were due to him." The objection was repelled that these expressions were too vague (1). Where a person obtains sequestration by the creation Sequestration „ . . . obtained by of a fictitious debt, in. defraud of his lawful creditors, creating fio- the charge sets forth some such narrative as that — *'''°"° ^^ '' I. The accused having formed the purpose of defraud- ing his lawful creditors, did — II. Do certain acts (such as procuring an antedated bill to be written out and accepting it, — he not being due to the person represented as the drawer the sum contained in it, — and getting himself incarcerated there- upon) ; and — III. That the diligence and incarceration were ob- tained for the purpose of rendering himself bankrupt, that he might defraud certain persons named, " and " others " his lawful creditors. Charges of concealing or alienating property during Concealment or on the eve of insolvency or bankruptcy set forth — by tosoivent. 1 John O'Eeilly, H.O., July 14th 1836; 1 Swin. 256 and BeU's Notes 193. 422 INDICTMENT. Modus. I. That the accused being in the position described, did— II. At a certain time secrete certain articles described at a certain place — (or did transfer them to the custody of a person described for the purpose of concealment, under pretence of a sale to the said person — or some such statement, as the case may be), III. The articles being part of the accused's property or stock in trade, IV. That the accused did this for the fraudulent pur- pose of cheating certain parties described " and others," his lawful creditors. Where fraudu- This is all that is nccessary in a charge of fraud by a ruptoyoharged, pcrson in Contemplation of bankruptcy (1). But where shoSdlpeoify ^ charge of this sort is libelled under the denomination that conceal- of fraudulent bankruptcy, there should be, besides the sequestration elements abovc stated, sufficient to imply that the con- dowrTtoU^'* cealment, &c., was subsequent to the sequestration or was continued down to the date of the bankruptcy, and in this latter case an averment should be added, that the accused became bankrupt for the purpose of cheating certain persons and others, his lawful creditors (2). It Not necessary is not necessary, in cases of this class, to set forth in whose'posses- whoso posscssion the goods were when concealed or sion goods py^; away, it being sufficient to set forth whose property Fact that goods they Were (3). The fact that the goods concealed or put accu°fd m'nst ^'^^V belonged to the accused, must not be left to imph- be expressly cation. Thus, in One case, the want of a direct state- ment that the goods concealed were the property of the accused, or formed part of his stock in trade, was held 1 Richard P. t)ick and Alex. these particulars, was accordingly Laurie, H.O., July 16th 1832 ; 6 Deas held too meagre to support a charge and Anderson 613 and 4 So. Jur. of fraudulent bankruptcy in the 594. — Chas. M'Intyre, Inverness, case of M'lntyre supra. Sept. 14th 1837. ; 1 Swin. 536 and 3 Dawson v. Maclennan, H.C., Bell's Notes 64. April 2nd 1863 ; 4 Irv. 357 and 35 2 A statement^ without any of So. Jur. 515. INDICTMENT. 423 fatal to the relevancy (1). The names of creditors Modus. should be given, it not being sufficient to charge that the Names of cr6Qitors acts were done to the prejudice of the accused's creditors, should be without any specification. Thus, where the libel charged S''^™" the accused as having had the purpose to defeat the diligence " of various lawful creditors," the Court were about to order informations on the relevancy, but the prosecutor consented to depart from that charge (2). A similar objection was sustained in a previous case (3). But it is sufficient to name some of the creditors, and to Where some p rp Qi tors add "and others." And where the accused has been named, "and sequestrated and the creditors are represented by a trus- tel'dded.™*'' tee, it has been held unnecessary to specify the indi- Creditors need . T , -,. , ... not be named Vldual creditors (4). i£ represented Falsehood is Eegisteeing Bieths, &c., (p. 117). — I'y t™stee. ^, . „ . , T , ' ' vr / False Eegister This statutory onence is charged by — of births, &c., I. A narrative of the circumstances leading to the fo"^"! «« "iiarge falsehood — e.g., that a person described having been de- livered at a certain time and place of an illegitimate child, the accused did — II. Go to the Eegistration Oiifice described to register the birth, and being required in terms of the Act to in- form the Eegistrar of certain particulars — such as whether the child was legitimate ; and if so, who was the mother's husband — in order that these particulars might be inserted in the Eegister, did — III. "Knowingly and wilfully" state certain things — such as, that a certain person described was the mother's husband, and that the child was the lawful issue of their marriage — and — IV. That the Eegistrar, believing the statement to be 1 Eob.Moir and John Moir,H.C., 3 Eiohard F. Dick and Alex. Deo. 5th 1842 ; 1 Broun 448 and Laurie, H.C., July 16th 1832 ; 5 Bell's Notes 186. Deas and Anderson 513 and 4 Sc. 2 John O'Eeilly, ILO., July 14th Jur. 694. 1836 ; 1 Swin. 256 and Bell's Notes 4 Jas. Henderson, Perth, Sept. 193. 30th 1862 ; 4 Irv. 208 and 35 So. Jur. 52. 424 MoDua. Case of false Btatement not being inserted in register. Uttering base coin, form of charge. INDICTMENT. trae, entered the birth in the Kegister as the birth of a legitimate child bom of the pretended marriage between the mother and the person described, the entry made from the information of the accused being as follows — (the entry here quoted at length) — the entry being in the form applicable to the birth of a legitimate child, and importing that the mother and person named were married persons, and that the child was their legitimate child, and — V. That the accused did aU this, or caused it to be done, " knowingly and wiKuUy, and in contravention of " the before recited section of the Act above libelled " (1). If the false statement was not inserted in the Ee- gister, the narrative would be as above as regards the 1st, 2d, 3d, and 5th heads, and the 4th head would charge that the statement was made for the purpose of its being inserted in the Eegister. In all cases of a false entry having been made, the indictment should set forth the entry verbatim. The Court, though not hold- ing a charge irrelevant when this was not done, animad- verted upon the fact of the omission (2). Coining (p. 118). — Uttering Counterfeit Cain. — The charge in cases which are not aggravated sets forth that the accused did — I. Tender, utter, or put off (3) — II. "A false or counterfeit coin," (or " three or thereby " false," &c., or as the case may be), 1 Illustrations of libels for con- travenijions of tlie Act in reference to births are numerous. The fol- lowing may be taken as specimens : — Catherine Horn or Pinnie, Perth, April 1857 ; Indictment Adv. Lib. Coll. — Hugh Lawler, Inverness, Sept. 1857; Indictment Adv. Lib. Coll. — Will. Eichardson, Ayr, Sept. 1861 ; Indictment Adv. Lib. Coll. An example of a charge of contraven- tion in relation to a death is given by Mary Campbell, Perth, Sept. 1867 ; Indictment, Adv. Lib. Coll. 2 Alexander W. Askew, H.C., Nov. 7th 1856 ; 2 Irv. 491. 3 In this and many of the other charges under the statute, it is com- mon to use the words "wickedly and "feloniously," but as these words are not in the statute, it seems irregular to insert them. INDICTMENT. 425 III. " (Each) resembling, or apparently intended to Modus. " resemble, or pass for, a florin or two-shilling piece of " the Queen's current silver money," (or describing it as a coin of gold or silver or copper currency, or as for- eign money, as the case may be), IV. The accused knowing the same to be false or •counterfeit, V. " By tendering or delivering the same " to a certain person described, inpayment of certain articles purchased by the accused, or otherwise, according to the state of the facts of the transaction which constituted the utter- ing, as, for example, that the accused delivered the coin for the purpose of getting change for it as a genuine coin, or that he delivered it pretending that the person had given it to him in change, and demanding a good coin instead (1). Uttering Base Coin, with circumstances of aggra^a- uttering tion. — "Where the aggravated character of the uttering by^pr ™io^na consists in the fact of previous conviction, the charge is «™Tiotioii. the same as in the preceding paragraph, only concluding with a statement of the previous conviction and its nature, thus : — " and you, the said John Brown, had , " previously to the act of tendering, uttering, or putting "off the false or counterfeit coin above libelled, been " convicted of," &c., or " twice convicted of," &c., as the case may be (2). Where the aggravated character of the Aggravated uttering consists in the accused having other base coins posaesslo/ in his possession at the time, the charge will be as before ooin*^"^ ^^^ stated, with the additional statement, that at the time of the act libelled the accused had in his custody or pos- 1 See an inetanee of sucli a land — Chae. S. Davidson and Ste- oliarge — John Mooney, H.C., Dec. phen Francis, H.C., Feb. 2d 1863'; 8th 1861 ; J. Shaw 509 and 1 4 Irv. 292 and 35 So. Jur. 270. It Stuart 127. is even sufSoient to aver that the 2 It is not necessary to set forth accused has been previously con- the substance of the convictions, victed of " the crime and offences the section prescribing this having "set forth" in a certain section, been held not applicable to Soot- " or one or more of them." 426 INDICTMENT. Modus. Aggravated Tittering in respect of an uttering re- cently before. Charge of repeated utter- ing should state that the coins uttered on each occa- sion were different. This need not be expressed in direct words. Uttering medals, &c. session " one or more pieces of false or counterfeit coin, " resembling" &c. Again, where the aggravated charac- ter of the Tittering consists in its having taken place within a short time of a previous uttering lihelled, the form is the same as above stated, only preceded by a statement of time referring to the previous act, thus : — " and being on the day of the tendering, uttering, or " putting off of the false and counterfeit coin above " libelled, or within the space of ten days then next en- " suing," &c. A charge of repeated uttering should unambiguously indicate that the coin uttered on the second occasion was a different one from that uttered on the first. Where the Ubel did not expressly set this forth, the Court, looking to the previous practice in libelling such a charge, held, though with great difficulty, that the meaning of the charge was that the two coins were dif- ferent. But the Court pointed out the necessity for an explicit statement, and indicated that greater care must be taken in future (1). It is not, however, necessary that the libel should express in so many words that the second offence was committed with a different coin from the first. For example, if the first act be described so as to indicate that the coin then tendered actually passed out of the accused's possession, — as in the case of its being libelled that he received some article and a balance of money in exchange for it, it is of course manifest that the coin spoken of in the second charge must be a different one from that spoken of in the first. Uttering Medals &c., of less value than the coins they are passed off for. — No charge for this offence has oc- curred as yet in practice. The essential statements seem to be that the accused did — I. " Tender, utter, or put off" as or for certain of the Queen's current gold or silver coin described. 1 Anderson v. Blair, H.C., Jan. 14th 1861 ; 4 Irv. 5 and 33 Sc. Jur. 132. INDICTMENT. 427 II. A certain foreign coin (or medal, or piece of metal Mopub. described, as the case may he), " resembling in size, "figure, and colour" the said current coin, III. By delivering the same to a person described in a manner described, IV. The said foreign coin, medal (or otherwise), so tendered, &c., being of less value than the said current coin, as or for which it was so tendered, V. That the accused acted as above " with intent to " defraud" the person previously described. Possession of Base Coin with Intent to Utter. — The PosseBsjon of charge in such a case sets forth that the accused had — intent. I. In his custody or possession — II. " Three or more " false or counterfeit coins, " each " resembling or apparently intended to resemble or pass " for a florin or two shilling piece of the Queen's cur- " rent silver coin " (or as the case may be), III. Knowing the same to be false or counterfeit, and — IV. " With intent to utter or piit off the same, or one " or more of them." Where the coins said to have been in the possession Where coins of the accused are of different denominations, they must denominations be separately described, care being taken that the state- ™frateiy ment that in all they amounted to three or more coins, described, is explicit. For example, if there were only three coins, each being of a different denomination, some such description as this would be necessary : " Three or " more false or counterfeit coins, resembling, or appa^ " rently intended to resemble or pass for pieces of the " Queen's current silver coin, one or more of the said " pieces resembling, or &c., a threepence piece of the " Queen's current silver money, and one or more of the " said pieces resembling, or &C., a sixpence piece &c., " and one or more of the said pieces resembling, or &c., '' a shilling piece &c., .knowing " &c. Aggravated Possession of Base Coin with Intent to Aggravated Utter. — Where an offence is aggravated by a pre- ^Mrcoiu?° 428 INDICTMENT. Modus. Impairing coin. Fossession of bnllion taken from coin. Trafficking in base coin. vious contravention of the Coining Statutes, the charge is in the same terms as ahove, with a statement of the previous conviction.* Impairing Queen's Gold or Silver Coin. — The re- quisites of such a charge seem to be a statement that the accused did — I. "Impair, diminish, or lighten" certain Queen's gold or silver coin(s) described by denomination and metal, II. In a certain manner described — (as by dissolving metal off the surface by acid, or as the case may be), III. With intent that the coin so impaired, dimin- ished, or lightened should pass for the Queen's current gold or silver coin, as the case may be. Possession of Gold or Silver taken from Coin. — ^The requisites of such a charge seem to be a statement that the accused did — I. Unlawfully have in his custody or possession a certain quantity named, or other quantity to the prose- cutor unknown, of filings (or clippings, or gold or silver bullion, or gold or silver in dust or solution, as the case may be), II. That the said filings (or as the case may be) were produced or obtained by impairing, diminishing, or lightening certain Queen's gold or silver coin(s) de- scribed, or other Queen's gold or silver coin to the pro- secutor unknown, III. That the accused knew the same to have been so produced or obtained. Trafficking in Base British Coin. — The charge in such a case should bear, that the accused did — I. Without lawful authority or excuse, buy or receive (or sell, pay, or put off, or oifer to buy or receive, or offer to sell, pay, or put off, as the case may be), II. Certain false or counterfeit coin(s) described, re- ' For rules as to libelling previous conviction, vide 425. INDICTMENT. 429 sembling, or apparently intended to resemlDle or pass for Modus. certain coin(s) of the Queen's money described — III. At (a) certain lower ' rate(s) or val-ue(s) specified than the false coin(s) import(s), or was (or were) appa- rently intended to import, or at some other such lower rate(s) or value(s) to the prosecutor unknown (1). Gownterfeiting Coin. — Charges of this class set forth Counterfeiting that the accused did — I. " Falsely (2) make, or counterfeit, a coin " (or " three " or more coins," or as the case may be). II. (Each) resembling, or apparently intended to re- semble, or pass for certain current British coin or foreign coin, described by denomination, metal, and value. Gilding or Silvering Coin or pieces of Metal, suitable Gilding, &o., for Coining (3). — A charge of this sort varies according as it is one of casing over base coin or altering real coin, or casing over pieces of metal with intent to coin them. A charge of gilding or silvering base coin sets forth that b^sfcMnf "' the accused did — ' I. Gild (or silver), or with a certain wash, or with some other wash or materials, to the prosecutor unknown, cap- able of producing the colour or appearance of gold (or silver), or in some other way or by some other means to the prosecutor unknown, wash, case over, or colour, a coin (or " three or more coins," or as the case may be), II. (Each) resembling, or apparently intended to re- 1 The section relating to this part of the section was applicable offence as regards gold and silver to Scotland. The prosecutor can money (24 and 25 Vict. o. 99 § 6), always avoid any such difficulty, provides that it shall not be neces- by specifying the rate or value sary to specify the rates in an in- according to his information, and diotment. But as it has been held by using the words "other such that procedure under the ^ct in " lower rate or value to prosecutor Scotland is to be according to the " unknown." rules of the criminal law of Scot- 2 The word "falsely" has been land (Ohas. Davidson and Stephen omitted, apparently inadvertently, Francis, fl.C, Feb. 2d 1863 ; 4 Irv. from § 18 of the Coining Act 24 and 292 and 35 So. Jur. 270), the ques- 25 Vict. o. 99. tion might be raised whether this 3 Act 24 and 25 Vict. o. 99 § 3. 430 IKDICTMENT. Modus. semWe, or pass for certain of the Queen's current gold or silver coin, described by denomination metal and value. Gilding, &o.. Where the offence consists in gilding genuine silver silver or copper ., . • • , coin. com, or gildmg or suvermg genuine copper com, the charge sets forth that the accused did — I. Gild (or silver), &c., as above, " a shilling piece of " the Queen's current silver money (or " a farthing piece " of the Queen's current copper money," — or " three or " more," &c., all as the case may be). II. That the accused did this with intent to make the same resemble or pass for certain Queen's current gold (or silver) coin described by denomination, &c. Gilding, &o., A charge of gilding or silvering pieces of metal, sets WankBofmetai. f^j.^]^ ^j^^t the accused did— I. Gild (or silver), &c., as above — a piece of silver (or piece of copper, or piece of coarse gold, or of coarse silver, or any other piece of metal or mixed metal, as the case may be — or " four or more pieces," &c., as the case may be), TI. That the said piece of silver (or as the case may be — or " each of the said pieces of," &c.), was " of fit size " and figure to be coined." III. That the accused did this with intent that the same should be coined into false or counterfeit coin, re- sembling, or apparently intended to resemble, or pass for, certain of the Queen's current gold (or silver coin), de- scribed by denomination, &c. (1). Piling &c. Filing <&c., Cwrrent Coin, vnth Felonious Intent. — No charge of this sort has occurred in practice. The requi- sites seem to be, a statement that the accused did — 1 It would probably be competent silver coin, and it being difficult to for tbe prosecutor to add here, in conceive how the prosecutor could both this and the previous case, " or have any certainty as to the parti- "for some other of the Queen's our- oular coin for which the accused "rentgold(or silver) coin," the Act might attempt to pass off the col- speaking only of intent to make the oured metal. coin pass for "any" current gold or coin- INDICTMENT. 431 I. File (or, in some manner described, " alter "), a shil- Modus. ling piece of the Queen's current silver money (or a piece of copper money described, as the case may be — or " five " or more," (fee, as the case may be), II. That the accused did this with intent to make the same resemble or pass for certain Queen's current gold (or silver) coin described (1). Making, Dealing in, or Possessing Coining Apparatus. Making, deai- — It will be convenient to separate the statement of the coining ap'pa- charge in cases of Queen's gold and silver coin, or foreign coin (§ 24), from the statement of the charge in cases of copper coin (§ 14). As regards British gold and silver Bntiah gold coin, or foreign coin, the charges vary according as the {"'^■^'^'oi^^g offence relates to moulds for the faces of coin, or edging apparatus. tools, or presses for applying such tools. Where the charge Moulds. relates to moulds, it sets forth that the accused did — I. Without lawful authority or excuse, make (or mend, or buy, or sell, or have in his custody or possession, as the case may be), a puncheon (or counter-puncheon, or matrix, or stamp, or die, or pattern, or mould, or "two " or more," as the case may be), II. Upon which there was made, or impressed, or which would make or impress, or which was adapted and intended to make, or impress, the figure, stamp, or ap- parent resemblance of both (or one) of the sides of certain Queen's current gold (or silver, or foreign) coin described, or part of such side(s), III. That the accused acted knowingly. Where the charge relates to edging tools, it sets forth Edging tools that the accused did — I. Without lawful authority or excuse, make (or mend, (fee, as above), an edger (or edging, or other tool, or collar, or instrument, or engine — or " two or more," (fee, or as the case may be), II. The same being "adapted and intended for the 1 See previcus note. 432 INDICTMENT. MoDPs. marking of coin round the edges with letters (or grain- ings, or marks, or figures), apparently resembling those on certain Queen's current gold (or silver, or foreign) coin described, III. The accused knowing the same to be adapted and intended for that purpose. Coining presses "Where the charge relates to coining presses or similar instruments, it sets forth that the accused did — I. Without lawful authority or excuse, make (or mend, &c., as above), a press for coinage (or a cutting engine for cutting by force of a screw, or of any other contrivance, round blanks out of gold, silver, or other metal, or mix- ture of metals, or someother machine — or "three or more" &c., as the case may be), III. The accused knowing such press to be a press for coinage (or such engine, or other machine, to have been used, or to be intended to be used for, or in order to the false making, or counterfeiting, of Queen's current gold or silver coin, or foreign coin, as the case may be). Apparatus for. Charges of this sort in relation to copper coinage, may, it would appear, be stated more broadly, the words of the section (1) being much more general than those of the section already noticed. The essentials appear to be a statement that the accused did — I. Without lawful authority or excuse, make (or mend, &c., as above), an instrument (or tool, or engine, or " four " or more," &c., as the case may be), II. The same being adapted and intended for the counterfeiting of certain of the Queen's current copper coin, III. That the accused acted knowingly. Importing or Exporting Base Coin. — A charge of im- oxporting base porting should Set forth that the accused did — I. Without lawful authority or excuse, import or re- 1 Act 24 and 25 Vict. c. 99 § 14. coming copper. Importing or expo coin. INDICTMENT. 4,33 ceive into the United Kingdom (from beyond the Modus. seas') (1), II. Certain false or counterfeit coin described by the number of coins, and a statement that they resembled or were apparently intended to resemble or pass for certain coins of the Queen's current gold (or silver) coin de- scribed, (or certain gold or silver coin of a foreign country described, as the case may be), III. The accused knowing the same to be false and counterfeit. A charge of exporting base coin should set forth Exporting. that the accused did — I. Without lawful authority or excuse, export from the United Kingdom in a manner described (or put on board a ship, vessel, or boat described, for the purpose of being exported from the United Kingdom, as the case may be), II. A certain number of false or counterfeit coins, re- sembling or apparently intended to resemble, or pass for, certain Queen's current gold (or silver or copper coin, as the case may be), III. The accused knowing the same to be false or counterfeit (2). FiEE-EAisiNG (p. 128). — The charge in the case of this Pire-raiaing, crime must state *°™ °* "=''"«*■ I. To whom the building or other subject belonged, II. The mode in which the incendiary set fire to it, and — III. That the fire took effect and burned the whole or certain named portions of it (as the case may be), and, (where such is the fact), burned adjoining property de- scribed. 1 The words in brackets are used from Boyal Mints have not been in § 7, but not in § 19 of tbe Act 24 noticed here, as the first would pro- and 25 Viot. a. 99. bably be dealt with summarily, and 2 To save space, the offences of as the second cannot occur in Soot- defacing coin, and removing articles land, there being no Mint there. 2e 434 INDICTMENT. Modus. It is absolutely indispensable that the ownership of Stotementof the property should be specified (1), but the prosecutor SSs'^ensabie ™^y ^^^^ ^°™^^ latitude in case of any mistake as to the true owner, thus : — " being the property of A. B., or of " some other person or persons to the prosecutor un- " known, other than you the said C. D.," (the ac- Latitude in cused (2). In stating the mode in which the fire was appi^^ng &e°^ applied considerable latitude is aUowed. Thus, an objection was repelled to an indictment which after describing a particular act of setting fire to premises, spoke also generally of "setting fire to various other " parts of the said apartments " (3). And in every ,case a latitude of " in some other manner to the prose- " cutor unknown " is allowed (4). Attempt. In the case of attempt to commit wilful fireraising, the form of the charge is the same as in the case of the com- pleted offence, except that for the statement of the fire taking effect, the charge bears that the accused did thus attempt to set fire to the building or other subject. Fire-raising to -^ charge of fireraising to defraud insurers sets forth — defraud J ^ narrative describing the position of the accused, insurers. or > such as that he was at a certain time tenant of particu- lar premises, and carried on a business there, II. A narrative of the effecting of the insurance, stating the time of insuring, the name of the Insurance Com- pany, the amount insured, and the nature of the pro- perty, and stating further, where such is the fact, that the sum exceeded the value of the property insured, III. A statement that the insurance being stUl in 1 John Maokirdy, Glasgow, Oct. 1837 ; 1 Swin. 420 and Bell's Notes 1st 1866 ; 2 Irv. 474. 194.— The case of John Arthur, 2 Jas. Gibson, H.C., Dec. 23d H.C, March 16th 1836; 1 Swin. 1844 ; 2 Broun 332 (Indictment). 124 forms truly no exception to this 3 Harris Rosenberg v. Alithia rule, though the rubric might mis- Barnett or Rosenberg) Aberdeen, lead into this belief. Accordingly April 16th 1842 ; 1 Broun 266 and the case of Arthur was quoted in Bell's Notes 194. vain in the case of HaU supra. 4 Rob. Hall, Glasgow, Jan 5th INDICTMENT. 435 force, the accused did set fire to the property in a man- Modus. uer described, IV. A statement that the fire took effect, and a gene- ral description of the injury done, V. A statement that the accused did this with intent to defraud the said Insurance Company, by re- covering the amount insured or part of it, on the pre- tence that the fire was accidental ; and where it is to be proved either that the sum insured was originally above the value of the property, or that the goods which were consumed were not of the value insured, it is added that the intent was to recover on the additional pretence that the property consumed was really of the value repre- sented by the sum insured. Where the subjects insured are movable goods, it is Movables need not necessary to describe them elaborately, such expres- described sions as " the furniture, stock in trade, goods, and other elaborately. " effects contained within the said premises " being suffi- Application of cient. The rule as to stating the mode of applying the described as in fire, is the same as in wilful fire-raising.* railhig^^" In a charge of setting fire to property to defraud in- Not necessary surers, it is not necessary to set forth that the accused aoculed at- actually attempted to recover anything from the insurer, ^^p^^ to J r JO recover under It is sufficient if it be averred that the act was done with the insurance. felonious intent to defraud by recovering the insurance on false pretences (1). Nov is it necessary to set forth Eemovai of the removal by the accused of part of the insured goods fccus^ed need before the fire, in order to entitle the prosecutor to prove '^°^ ^'^ averred. that fact, the averment in the libel being that the intent was to represent the goods actually consumed as of the value insured (2). A charge of attempting to set fire to property to de- Attempt at fraud insurers , differs from a charge of the complete defraud.'"^ *° offence only in the statement of the mode of the act 1 Chas. Little, Glasgow, May 1st 2 Will. M'Credie, Ayr, Oct. 2d 1857 i 2 Irv. 624. 1862 ; 4 Irv. 2U and 36 Sc. Jur. 3. • F»(fe 433, 434. 436 Modus. Eeokless fire- raising, form of charge. Bules as to mode of apply- ing fire in case of wilful fire- raising apply here. Form of stating danger to others. INDICTMENT. amounting merely to an attempt, and in the statement of the intent setting forth that what the accused did was done with the design and purpose of setting fire to and burning the insured property, and with intent afterwards to recover, on the false jiretence of accident, &c. Such crimes as wilfuUy or recklessly setting fire to one's own property, to the danger of the lives and pro- perty of others, or by recklessness setting fire to the pro- perty of others, are charged by a statement — I. That the accused set fire to certain property in a certain manner, using such words as "wilfully and " feloniously," or " culpably and recklessly," according to the nature of the acts done, II. That it took effect, and to what extent, and — III. That the accused did this to the danger of the lives, or to the risk of the property of others, or to both of these effects, as the case may be. The general rules applicable to wilful fire-raising as to the latitude allowed in libelling the mode of raising the fire,* apply also to crimes of this description. The danger resulting from the accused's act, may be set forth in general terms : — " and this you did to the " danger of the lives of the inhabitants of the premises, " and to their great terror and alarm " (1). In one case, where it was set forth that the accused set fire to " a quantity of straw mats, or other combustible arti- " cles" .... "to the danger of the tenement, " part of the woodwork of which was burned or scorched " by the fire so raised by you," the objection that the description should have shewn how the burning of the straw was necessarily dangerous, was repelled, it being observed that the question of real danger was one of circumstances, and therefore one of proof (2). 1 Geo.Maobean, Inverness, April 2 Jas. B. Fleming, H.C, July 15th 1847; Ark 262 (indictment). ( 24th 1848 ; Ark 619. • Vide 433, 434. INDICTMENT. 437 Destroying Ships (p. 132). — A charge under the modps. statute for the prevention of fraudulent destruction of Destruction of ships, appears to require the following particulars — charge." I. A narrative that the accused heing the owner of a certain ship described (or captain, or master or other officer of, or mariner in the ship, as the case may be) did— II. Wilfully cast away (or burn, or destroy, as the case may be) the ship in a manner described ; (or did direct or procure the castiag away, or burning or de- struction by certain persons named, in a manner de- scribed), III. That the accused acted with intent to prejudice a certain person described, (giving the particulars) ; who had underwritten a policy or policies of insurance upon the vessel, (or cargo of the vessel, giving the par- ticulars) ; (or to prejudice a certain merchant haidng goods on board the ship, or to prejudice the owner(s) of the ship, as the case may be). Malicious Mischief (p. 133). — A charge of mischief Malicious mis- „ , , chief, form of sets lOrtn — charge. I. That the accused did " wickedly, wantonly, malici- " ously, and mischievously" do a certain act, such as breaking a number of windows, in a particular manner described, or some other manner unknown. II. The property injured belonging to a person de- scribed. Where the crime consists solely in injury to the Ovmer of pro- " 11 perty must be property of others, the owner 01 the property must be specified, specified (1). Where the charge relates to the obstruction of railways Railway ob- under the Statute (2), it should state — I. That the accused at a certain time and place, and on a certain line of railway, did " wilfully'' do or cause 1 John Maokirdy, Glasgow, Oct. per Lord-Justice Clerk Hope). 1st 1866 ; 2 Irv. 474 (obserTation 2 Act 3 & 4 Vict. 0. 97, § 15. 438 INDICTMENT. Modus. Common law charge of ob- structing rail- way. Murder, form of charge. to he done, or assist in doing, as the case may he, a certain act described, such as placing a stone on the rails in such a manner as to obstruct trains, &c., passing along the line, in consequence whereof — II. An engine and set of carriages did come against the stone, and were thereby obstructed, (or the safety of the persons conveyed by a certain train was endangered, as the case may be). Of course both circumstances may have been combined, the train being both obstructed, and the safety of the persons on it endangered, in which case the charge will be stated cumulatively (1). In a charge as of placing an obstruction on a railway, at common law, on the other hand, it is sufficient to aver the fact, and to allege that it was done in a manner calculated and intended to obstruct the trains travelling on the line, and to endanger the safety of the persons conveyed by them. And a charge at common law of " wilfully and recklessly " doing a similar act, is suffi- ciently stated by an averment of the fact, and a charge that it was done in a manner calculated to obstruct trains (2). MuEDEE (p. 140). — The statement of a charge of murder varies with the mode to be described. In cases of murder by violence, the charge generally begins as in a case of assault with — I. A statement that the accused did wickedly and feloniously attack and assault the deceased, giving then a detailed account of the violence inflicted, and the charge of murder is then completed by — II. An averment that by all or part of what has been described, the deceased suffered certain injuries, and immediately or soon thereafter died, or died on a certain date named, and — 1 John E. Murdoch, Perth, May 2d 1849 ; J. Shaw 229 (indictment). 2 John E. Murdoch, Perth, May 2d 1849: John Shaw 229. INDICTMENT. 439 III. "Was thus murdered by you the said John Mo°"s- " Brown " (1). Where an indictment for murder set forth violence by Different modes T,.. ,,. of Tiolenoemay blows and by stranglmg, it was objected that in stating bo feet forth, the cause of death, the libel spoke of fracture of the skull and strangulation, ascribing the death to both : the Court repelled the objection, holding that the pro- secutor was entitled, under the words, " by all which or " part thereof," to prove the death to have resulted from one or other of the injuries specified, or from both com- bined, and that he could not be compelled to state the cause of death more specifically (2). And in another case the prosecutor was found entitled to charge that the deceased was " strangled, or suffocated, or drowned," the species facti set forth being, that the accused did seize the deceased by the neck, and strangle or suffocate him, and did drag and throw him into the water (3). Where the body of a murdered person was found in the sea, and it was therefore difficult for the prosecutor to say whether the external injuries were the result of the sub- mersion, or were inflicted previously, the Court, on a statement that the Ubel was drawn as specifically as was possible to the prosecutor in the circumstances, allowed a charge to pass which first described injuries by vio- lence, and then added, " or you did, at or near Granton " Quarry aforesaid, throw the said John Matson, or " cause him to be thrown into the sea, and did leave him " therein, by all which," &c (4). Again, a libel after 1 This last statement thousli been more satisfactory had the matter of invariable style, seems libel contained a statement which not to be in itself essential, as it is directly indicated the difficulty of jilainly inferred in the previous libelling precisely the cause of statements in the libel. death. It seems hardly advisable 2 Arthur Woods and Henrietta that the relevancy of a charge Woods, H.C., Feb. 25th 1839 ; Bell's should be upheld by a verbal state- Notes 196. ment on -the prosecutor's responsi- 3 Peter Cameron, Inverness, bility, vrhen itis easyto setforth in April 15th 1841 ; 2 Sw. 543 and the libel itself the circumstances Bell's Notes 196. which entitle the prosecutor to an 4 Alex. Matson, H.O., Nov. 27th exceptionally wide latitude in stat- 1848 ; J. Shaw 127. It would have ing the modus. 440 INDICTMENT. MoDua Murder by indirect violence Mui'der by poison. Cases of deatb resulting; from another crime. charging the accused with certain violence, added, " and " did violently twist a rope or other ligature round his " neck ; by all which or part thereof, his skuU was " fractured, and he was strangled," &c. The objection was repelled that the strangulation was not explicitly stated to have been caused by the accused (1). In other cases of death by violence, where the in- juries are not the result of a direct assault on the person of the deceased, but of the felonious act of the accused, as in the case of a person falling to the bottom of a coal-pit shaft and being killed, in conseq[uence of the accused having ciit the strands of the cage rope, the charge sets forth — I. The act(s) done, with the qualification of the words " wilfully, wickedly, and feloniously," or similar words, II. The resulting death, and — III. Concludes, as before, with the statement that the deceased was murdered by the accused. Where the murder is said to have been committed by means of poison, the charge states — I. That the accused " did administer or cause to be " taken by " the deceased, in a manner described — e.g., " in tapioca and in porter or beer, or one or more of them, " or in some other articles of food or drink to the prose- " cutor unknown, or in some other manner to the prose- " cutor unknown," II. A quantity or quantities of a certain poison named " or other poison to the prosecutor unknown," III. That the deceased having taken the said poison, did, in consequence, die at a particular time, and — IV. "Was thus murdered by you, the said John " Browa" Lastly, as regards those cases which may rele- vantly be charged as murders, though the death was not 1 Arthur Woods and Henrietta, Young or Woods, H.C., Feb. 25th 1839 ; 2 Swin. 323 and BeU's Notes 196. INDICTMENT. 44 1 directly inflicted by the accused: it is a good charge Modus. of murder, if the prosecutor set forth such criminal acts as wilful arid wholly reckless desertion of an infant, (1), or attempt to procure ahortion, or the like, (2), and aver that in consequence thereof the deceased died, and was thus murdered hy the accused. In cases of murder where death has ensued from Where death 1 . . ... • . • J. caused by disease supervenmg on the mjury, it is not necessary, superFening though formerly sometimes done, to set forth the disease „eoTsB^rT°to in the libel, the question whether it was a direct conse- specify disease. quence of, and therefore a part of, the injury caused by the accused, being one of proof (3). Culpable Homicide, oe Culpable Causing of In- Cuipabie JURIES TO THE LlEGES (pp. 150 and 219).— Guilt of orTnfl^y, crimes of this sort maybe incurred in many different form of charge, ways, and the mode of libelling varies considerably. Where the accused is charged with causing the injury luegai act. by an illegal or culpable or reckless act, the charge sets forth— I. The acts done by the accused, such as his assaulting and striking the injured party (or administering a quan- tity of a drug, or driving furiously, or iiring a gun near a road, or the like, whereby the person was knocked down or stupefied or wounded, as the case may be), II. That, in consequence thereof, the injured person died, (or was injured in a manner described, as the case may be), and — III. (In cases of culpable homicide) that he was thus culpably bereaved of life by the accused. Where the charge is one of culpable or reckless ne- Neglect of gleet of duty, causing injury, the charge begins by — "^"^y- I. A statement of what the accused's duty was, II. A charge that nevertheless he did certain things, 1 Elizabeth Kerr, H.C., Deo. 24th Jur. 176. 1860 ; 3 Irv. 645. 3 Jas. Stewai-t, Ayr, Sept. 21st 2 Will. Beid, H.O., Nov. 10th 1858; 3 Irv. 206. 1858 ; 3 Irv. and 235 and 31 Be. 442 INDICTMENT. MoDua. III. That a certain result followed whereby a certain person was injured, and-^ IV. (In cases of culpable homicide) in consequence died, and was — V. Thus culpably killed by the accused. Eeckiess Certain cases of this class require more elaboration in "^'^^" charging the acts done or neglected than others. For example, in cases of injury by reckless driving, it is sufficient, after describing, I. That the accused had carts, horses, &c., as the case may be, under his charge, to state that — II. The accused did " culpably, negligently, and reck- " lessly drive the said cart along the high road, leading," &c., following this up by — III. A statement of what followed — " in consequence " whereof, the said horse or the wheel or other part of " the said cart, or one or other of them, did, on the said " high road, and at or near a part thereof," (here the par- ticular place is described), " come in contact with the " person of John Brown, carter, then residing in or near " Musselburgh aforesaid, whereby he was injured," or " mortally injured," &c., &c.,.as the case may be (1). In Eeckiess a charge of culpable homicide by reckless steering of a steenng. vcsscl, the case being held analogous to that of reckless driving, it was held sufficiently specific to set forth that the accused " did navigate, direct, manage or steer, the " said smack or boat, in a culpable, negligent, and reck- " less manner, and without due regard to the safety of " persons in other boats fishing, or otherwise engaged, in " or near the said sound of Eaasay," and in consequence the boat ran down and sank another boat described, " then lying in or near said sound," and that thereby the crew were drowned (2). On the other hand, such a 1 Will. Messon, Perfh, April 29tli 2 Angus Macpherson and John 1841 ; 2 S-win. 548 and Bell's Notes Stewart, Inverness, Sept. 24th 18(31; 192. — Geo. Murray, Aberdeen, April 4 Irv. 85. 1841; 2 Swin. 649 note. INDICTMENT. 443 charge as causing death by unskilful administration of Modps- drugs, or the like, must he carefully and particularly set Admiuistration forth. An indictment was held irrelevant which charged ° ^°" the accused with holding himself out as competent to dispense drugs, and with neglecting to make proper in- quiries as to the state of the person to whom the medi- cine he sold was to be administered. The Court held it necessary to libel such a case very distinctly, and that it was not suificient to say that the accused failed to in- quire as to the age and state of health of the person in- jured. And further, they desiderated a clear statement, indicating whether it was neglect of duty by a competent person, or improper assumption of a character by an in- competent person that was the basis of the charge, (1). The following may serve as illustrations of the lati- Latitude tude allowed in general structure of charges of this allowed m class : — In a case of culpable neglect of duty, the charge ture of charge, set forth certain precautions which should have been .„ ^ AU or one taken, and that " all and each, or one or more of the pre- or more of " cautions aforesaid," were culpably and recklessly cautions^" omitted. The objection that this was not a sufficient 'i^s'«<=ted. charge was repelled (2). Where the accused was charged with adding links of improper shape and construction to a Defective chain, with defective materials and insufficient workman- not said ' ship, the objection that the libel did not specify in what ^fg^tive respect the things above detailed were faulty, was re- pelled (sy. An indictment which set forth that certain injunctions had been issued by the Sheriff in regard to Case of the precautions to be taken in certain operations, was injurictfonsof held relevant, the objection that the Sheriff had no power ^^^fl^"^ to issue such injunctions, and that therefore the libel tavebeen was irrelevant, being repelled, on the ground that the "^^ ^" Sheriff had power to issue such injunctions, and that the 1 Chas. Bnchan^ Stirling, May 1848 ; Ark. 432. 5thl863; 4Irv.392aud35So.Jur. 3 Geo. Stenhouse and Arch. 461. M'Kay, H.O., Nov. 8th 1852 ; 1 Irv. 2 Jas. Finney, H.C., Feb. 14th 94. INDTOTMBNT. Modus. Death from supervening, not necessary to specify the fact. Attempt to murder, at coimnon law. Statutory attempts to murder or injure. libel was not laid on the injunctions of the Sheriff alone, but on the narrative that these had been adopted by the accused's employers, and enjoined on him by them ; and further, that the accused not only neglected these, but aU other proper precautions for the safety of the lieges (1). Lastly, in cases of culpable homicide, where the death results from disease supervening on the injury, the same rule applies as in cases of murder, it is not necessary to allege anything in reference to the disease.* Attempt to Muedee (p. 165). — In a charge of attempt to murder, at common law, all that is necessary is — I. An averment of the acts done by the accused, — such as that he iired at a person, or administered poison, or mixed poison with food, and placed it at a certain place in order that a certain person might take it, or gave the food to some one described, telling him to give it to a certain person, as the case may be ; and — II. That he did this with intent to murder the said person (2). Charges under the statute making certain attempts to murder or injure capital (3), contain — I. A statement that the accused " wilfully, mah- " ciously, and ujilawfully " did certain acts described against a person described, II. (Where the offence is not charged as committed with fire-arms, in which case no averment of intent is necessary), "with intent in so doing, or by means " thereof, to murder, or maim, or disfigure, or disable " the said," &c. ; and — III. (Where the charge is one of throwing acids, a 1 Jas. Auld, Aberdeen, Sept. 23d 1856 ; 2 Irv. 459 and 29 So. Jur. 3. 2 See Madeleine H. Smith, H.C., June 30th 1857; 2 Irv. 641 and 29 So. Jur. 664 (Indictment). — Samuel Tumbleson, Perth, Sept. 17th 1863; Vide 441. 4 Irv. 426 and 36 So. Jur. 1 (in- dictment). 3 Act 10 Geo. IV. o. 38 § 2, applies to shooting, stabbing, attempts to suffocate, strangle, or drown ; and § 3, to throwing acids. INDICTMENT. 445 further statement is necessaiy, viz.), that the person Modus. was maimed, disfigured, or disabled, or did receive other grievous hodily harm, as the case may he. The words " maim " and " disfigure " are only used in Words "maim" cases of shooting, stabbing, and throwing acids, and are only usedln."^* omitted in charges of administering poison or attempt- shooting, stab- ing to suffocate, strangle, or drown, not being used in throwing the statute in reference to these oflfences. Although the jfot practice to Act speaks only of acts done against "His (Her") aver person attacked to be " Majesty's subjects," it is not the practice specifically aBrituh sub- to aver that the person attacked was a subject of Her ^^°'" Majesty (1). Concealment op Peesnanct (p. 169). — The offence Concealment of of concealment of pregnancy is charged by an aver- fom^of^oharge. ment — I. That at a certain time and place the accused brought forth a male child (or a female child, or a child the sex of which is unknown, as the case may be), II. That she did not call for, and make use of help or assistance in the birth ; and III. The child was afterwards found dead (or is amiss- ing, as the case may be). Although it is usual to state the sex of the child, or that the sex is unknown, indictments in which no men- tion of the sex was made at all have been sustained. Indeed the sex seems of no real Consequence iu such cases. In a charge of concealment of pregnancy, it is not necessary to state that the child was full grown at the time of the birth (2). The statement at the end of the charge may be either confined to one or other of the averments of " found dead " or " amissing," or both may be stated alternatively. It is usual to state where the child was found, but it is not indispensable (3). 1 Some indictments contain an 2 Alison Punton, H.C., Nov. 5tb averment to this effect ; e. g., David 1841 ; 2 S win. 572 and Bell's Notes K. Michie, Perth, Oct. 10th 1845 ; 203 (Lord Justice Clerk Hope's 2 Broun 514 (Indictment drawn by charge). Lord Justice Clerk Inglis). 3 Isobel M'Leau or Dobie, Perth, 446 Modus. Procuring abortion, form of charge. Attempt. Assault, form of charge. INDICTMENT. Peocueing Aboetion (p. 175.) — A. charge of procur- ing the abortion of a pregnant woman states — I. That a certain woman having become pregnant, II. The accused wickedly, &c., did a certain act (such as using an instrument in her body, or administering certain drugs), " for the purpose of causing her to abort, " or part in an untimely manner with the foetus or " child then in her womb," III. In consequence of all which, or part thereof, the said person was at a particular time "wickedly and " feloniously caused or procured to abort, or part in an " untimely manner with the foetus or child in her " womb ; of which foetus or child she was" ("then and " there," or at a time and place described, as the ease may be) "delivered in the second, third, or fourth " month or thereby of her pregnancy." A charge of attempt states the act done as above, and avers that it was done with the wicked and felo- nious intent of procuring the person to abort, " or part " in an untimely manner," &c. Assault (p. 176,) — ^A simple narrative of the act(s) done is all that is necessary in a charge of assault. It begins with the general statement that the accused did " wickedly and feloniously attack and assa:ult "... and then describes the assault — " and did with a stick " or bludgeon, or some other instrument to the prose- " cutor unknown, strike him several or one or more " blows on thej head or other parts of his person, and " did kick him," &c. &c. Or again, to take another single example, the case of one throwing a person off a carriage, after the general words " attack and as- " sault," follow such words as , these : " and did seize " hold of him, and did violently throw or push him off " the said carriage on which he was then travelling, in Oct. 7th 1845 (indictment) — Menie or Marion Gilbert, Aberdeen, April lath 1842; 1 Broun 258 (indict- ment). INDICTMENT. 447 " consequence of wMch he fell upon the said rail- Modus. " way," &c. Beating oe cursing Parents (p. 186.) — To a charge Beating or of beating parents, all that is requisite is — parents, form I. A similar specification as in a case of ordinary of charge, assault by blows, along with — II. An averment of the relationship of the parties ; and — III. A statement that the accused was then above or under the age of sixteen years (as the case may be), and not distracted. The crime of cursing parents is sufficiently charged Cursing, by a statement that the accused did — I. Curse a certain person, , II. Being his father or mother, as the case may be. III. " Using the words (1) . . . ," or similar ex- pressions, IV. The accused being then above or under sixteen (as the case may be), and not distracted. Hamesucken (p. 188)v — To constitute a charge of hame- Hamesuoken, sucken, it must be averred— *°™ °^ "^^'s^- I. That the accused went to a certain house, II. That house being averred to be the dwelling-house in which the injured party lived, III. That he went there with the premeditated purpose of assaulting the said person (2), and — IV. That in pursuance of this purpose, he did then and there, within the dwelling house, " attack and assault " the person, and maltreat him in a manner described, and with certain results, — such as effusion of blood and in- jury to the person. 1 As to the necessity of setting not distinctly aver the seeking for forth the words used, see Hume the premeditated purpose, and the i. 325. charge of hamesucken was with- 2 In the case of Eob. Stewart and drawn. Lord Justice Clerk Hope's others, Ayr, Oct. 10th 1849, the ob- MSS. jection was raised that the libel did 448 INDICTMENT. Modus. Eape, form of charge. Female under puberty. Adminietering drugs. Personating woman's husband. Intercourse with woman asleep. Eape (p. 192). — Eape is charged by an averment that — I. The accused did " attack and assault '' a female de- scribed, and did certain acts described, and — II. "Did have carnal knowledge of her person for- cibly and against her wOl, and did ravish her." In cases where the female is under the age of puberty, this fact is set forth, and the words " forcibly and against " her will " are omitted. It is competent in a charge of rape to state such facts as that the accused administered a quantity of ardent spirits, or of a stupefying drug to the female, and that her powers of resistance were .thereby totally overcome, or that she resisted as much as she was able in the circumstances (1). And in a case where the female was imbecHe, and young, a charge went to trial which bore that the accused had carnal knowledge of her person, " forcibly and without her wiU, or notwithstand- " ing of such resistance on her part as her immature age, " and strength, and weak or imbecile intellect enabled " her to offer, and did ravish her " (2.) Clandestine Injury to Women (p. 195). — In the only case which has occurred in practice of a man per- sonating a woman's husband, the charge set forth — I. That the accused did "wickedly, feloniously, fraudu- " lently, and deceitfully " introduce himself into the bed in which a certain female described was lying, and did lie down beside her, and — II. Did pretend to be her husband, or so behave as to deceive her into the belief that he was her husband ; and — III. That he thereby had access to her and had carnal knowledge of her (3). There have been two cases of injury to women during sleep. In these cases the charge stated — 1 Duncan Macmillan, Jan. 9th 1833; Bell's Notes 83. 2 Hugh M'Namara, H.C., July 24th 1848 ; Ark. 621.— Will. Clark, Perth, AprU 12th 1865 ; 5 Irv. 77 ''l&i Jur. 417. WglerTtLO., June 21st and July 12th 1847 i Ark. 280 and 329 (Indictment). IOT)ICTMENT. 449 I. That the accused did wickedly and feloniously in- Modps. vade by stealth a hed in which a certain female described was then asleep, apd — II. Acted in a certain manner described, and — III. " Did have carnal knowledge of her when asleep " and without her consent " (1). Abduction (p. 196). — It is impossible to give any form General form of for cases of abduction which would be at all satisfactory, be given, as the charge must vary with the circumstances, and cases are not likely to occur in which precisely the same elements will be found. The elements which seem to be of the essence of a charge of abduction, are unlawful re- moval, without the party's consent, (whether by direct coercion or by removal after drugging, or by some frau- 'dulent device), and illegal detention. Purpose generally forms an element in such cases, but it is manifestly not indispensable that the prosecutor should set forth any other purpose than that of unlawfully detaining. CETJEL TbEAT]VIENT(p. 196). — Offences of this class also General form vary so much in their circumstances that no general given, rules can be laid down with advantage. Forms will be found in the indictments in the cases referred to in pp. 196, 197. Exposing Infants, &c,, (p. 197). — The general form Exposing • of such a charge is that — o^ ohSger"" I. The accused did lay down an infant child described, and of a certain age, and did — II. "Wickedly" &c., leave, expose, and desert it, regard- less of the consequences, adding a statement of any in- jury the child sustained in consequence, where such is the fact. In the only case of criminally placing a child in dan- ■Placing child ii ■ ii ■, T J ., , in danger. ger, otherwise than by direct exposure, the charge set forth— 1 Chas. Sweenie, H.C, June 18tli Palmer, Dumfries, Sept. 26tli 1862 ; 1858 ; 3 Irv. 109 and 31 So. Jur. 24 4 Irv. 227. (indictment) Win. M'Ewan or 2 F 450 INDICTMENT. Modus. I. That the accused laid down the child at a railway station in a basket, addressed, that it might he conveyed as a parcel hy rail, and — II. Wilfully failed to inform any of the railway ofi&- cials that there was a child in the basket, and — III. Did thereby widfkedly, &c., place the said child in a situation of danger to its life, and — rv. That in consequence the child was seriously in- jured (1). Drugging, form Deugging (p. 198). — Nothing more is necessary than — I. An averment of the act of drugging, prefaced by such words as " wilfully and maliciously," or " culpably " and recklessly." II. An averment of the effect upon the person, and — III. An averment of the intent (where such is to be proved). Mode of in- "Where it was alleged that the accused " did prevail '* swallow drug upon the injured party to drink the drugged liquor which BtatedT'*" ^ ^^d been prepared by them, the objection that this was too vague, and that the mode of inducement should have been stated, was repelled (2). Threatening Thkeats (p. 200). — Threats wMch are not put in writ- char^. ""^ ° ing appear not to have been prosecuted by indictment, but only summarily. A charge of sending threatening letters states — I. That the accused wrote, or procured to be written, a threatening letter conceived in the following or sinular terms, " Sir," .fee, &c., and addressed it, or caused it to be addressed, in a manner described, II. That he posted it, or caused it to be delivered (as the case may be), and that it was received by the person to whom it was addressed, III. That he did this for a purpose specified, such as 1 Baohel Gibson, Glasgow, Jan. Wright or Stuart, H.C., July 14th 8th 1845 ; 2 Broun 366. 1829 ; Bell's Notes 192. 2 John Stuart and Catherine INDICTMENT. 45I extorting money, or conveying threats of violence, or both Modus. of these. Sometimes the charge is placed in a different Sometimes order, the forming of a purpose to extort money, or the fOTTeteted T' like, being stated first, and it being averred that in outset. pursuance thereof the accused wrote and sent the letter (1). False Accusation (p. 203). — In charging this offence Accusation of . , CI 00 onme, form of it is only necessary to set forth — charge. I. Any preliminary narrative that may be necessary to make the charge intelligible, II. The circumstances and details of the accusation, averring that it was false, and — III. That the accused well knew it to be false. Of course the averment must amount to charging that J^'^i'^w '"" the accusation was seriously made, and accordingly it is charge serf- usual to add a detail of the results following upon it, °^ -^ "* ^' such as that the person accused was arrested by the authorities. Mobbing (p. 205). — A charge of mobbing sets forth Mobbing, form that — ° " ^^^^' I. The accused, along with a mob, or great number of riotous, disorderly, and evU disposed persons assembled, II. Either that this was, in pursuance of a common resolution, or that having assembled they took up a com- mon resolution, and — III. For a particular purpose named, or some other purpose unknown, did — IV. Certain acts. Here follows a narrative of the acts done, generally beginning where such is the case with a statement that the mob was armed, or partly armed, with weapons described, and setting forth first in general terms that the mob " did conduct themselves in " a violent, riotous, and tumultuous (or outrageous) man- " ner, in breach, and to the disturbance of the pubUc " peace, and to the terror and alarm of the lieges." Then follows a statement of the special acts done ; 1 Ghas. Boss, H.G., July 27th 1844 ; 2 Broun 271 (indictment). 452 INDICTMENT. MoDns. Accused should be charged at the outset of the libel as acting with mob. Statement of purpose indis- pensable. Act not directly the result of pur- pose, but fol- lowing on it may be charged. V. That the acts were all done by the mob in pursu- ance of the common purpose ; and — VI. That the accused were present, and aiding and abetting, and actively engaged with the mob in the acts done. It is not absolutely indispensable to charge the accused at the outset with having formed part of the mob, it being sufficient to state this at the close. But it is usual and better to name the accused at the commencement as well as at the end (1). It is absolutely indispensable, in a charge of mobbing and rioting, that ihe common pur- pose of the mob be set forth (2), although the prosecutor may take the latitude of " some other unlawful purpose " to the prosecutor unknown" (3). The statement of the acts done must be consistent with the statement of the common purpose. But where it was objected to a charge of mobbing and rioting for the purpose of assaulting, molesting, and intimidating a number of persons who were willing to work, " whose names are to the prose- " cutor unknown," that in the detail of the assaults, &c., the names of the parties injured were given, and that the one statement was inconsistent with the other, the objection was most properly repelled, as the intention of the assaults on the known individuals was to deter not only them, but a large number of others from work- ing * and further, whoever were the original objects of the mob's violence, it did not follow that in their lawless proceedings injury had not resulted to others having no connection with the work they desired to stop (4). And ' it is, of course, competent to charge acts which, though not directly part of the common purpose, proceed as a 1 Henry Brown and others, H.C., May 11th 1846; Ark 73. 2 Francis Docherty and others, Glasgow, Dec. 23d 1841 ; 2 Swiu. 636 and Bell's Notes 186. 3 Geo. Smith and others, Glas- gow, May 3d 1848 ; Ark 473. 4 "Will. Gibson and others, RC, Deo. 30th 1842 ; 1 Broun 485. INDICTMENT. 453 natural sequence from it, such as attempts to rescue Modus. members of the mob who had been apprehended (1). It is not competent to charge among the acts of offences which mobbing said to have been committed, other offences nary acts of not being the ordinary acts of a mob, unless these X^^ed^nto have been specially set forth in the maior proposi- theyhavebeen ,;r I .s n, 1, -■ ,-1 Tn 1 inserted In the tion. Murder, theit, assault, and the like, are always major propoai- charged nominatim in the major. Thus, it is not com- *""*■ petent in a charge of mobbing to state that the mob carried off property " theftuously," there being no charge of theft in the major proposition (2). The ordi- Ordinary acta nary acts of violence of a mob do not need to be charged reqm>6 to be* specially against the accused. It is sufficient that the special^ acts are charged as done by the mob, and the accused against the charged as having been actively engaged in, and aiding ^dually™ and abetting the mob. And this holds in the case of assaults (3), though it is now usual to charge assault separately in the major proposition, thus apparently giving it a higher place than that of an ordinary act of a mob. But the charge may state guilt of even more hein- Guilt of • ,1 T ./. ., i. i- J? heinona crimes ous crimes in the same general way, if the perpetration of may becharged them be distinctly averred to have been in pursuance of f^erred to'L the common purpose. Thus murder, if libelled in the partofoommon major proposition, is held sufficiently charged, it being ^^'^°^- set forth as having been done by the mob in pursuance of the common purpose, and the accused charged with having been actively engaged with the mob in the acts 1 Ja«. ^icholaon and John thrown upon theae caaes by the Shearer, Inverness, April 15th 1847 ; subsequent case of Thos. Wild and Ark2M. others, Jedburgh, Sept. 14th 1854; 2 John Harper and others, H.C, 1 Irv. 552. But there the Court Not. 21st 1842; 1 Broun 441 and pronounced no decision, only stating Bell's Notea 110. that they " considered the point to 3 Jaa. Thomson and others, H.Ct " be attended with some nicety and July 19th 1837 ; 1 Swin. 532 and "difficulty," and it does not appear Bell'a Notes 189. — Jae. Oaima and from the report that the case of others, H.C., Dec. 18th 1837; 1 Cairns was brought under their Swin. S97 and Bell's Notes 189.— notice. Some doubt would appear to be 454 INDICTMENT. Modus. of mobbing and murder libelled (1). Although it is Formofcharg- sufficient at the conclusion of the libel to charge the seferaiorimes* presence and participation of the accused with the mob agatasuhe " ^^ ^^^ ^^°1® °^ *^®^^ ^^^^ unlawful proceedings, and in accused. " the commission or perpetration of the several crimes " or offences above libelled, or of one or more of them " — it is usual and better to charge the participation as applying to the crimes stated in the major proposition by naming them — " in the commission of the foresaid " acts of mobbing and rioting, of assault, and of murder, " all as before libelled" (2). Pact that Riot It is not incompetent in the details of the mobbing to ito !teted,"*^ state narrative that the Eiot Act was read, and that the JlP'Jg^Act not niob thereafter persevered in their course of violence and tumult, although the Eiot Act is not libelled on in the major proposition, and although the other facts necessary to constitute a contravention of the Act are not set forth (3). Eiot, Ac, form ElOT AND BEBACH OF THE PEACE (p. 2 1 3). — EiotouS COn- of charge. ^^^^ ^jj^ breaches of the peace when committed by indivi- duals are seldom charged in any other form than that of a summary complaint. Where a riot is committed by a number of persons, the general forms of an ordinary case of mobbing are applicable, with the exception of the clause relating to the common purpose of the offenders, which is unnecessary in a case of rioting. Night poach- NiGHT PoACHiNG OFFENCES (p. 215). — ^A third offence Taking or of taking game or being on land armed for that purpose being on land jg charged by — to take game. n j I. A statement (as the case may be), either that the accused did " wilfully enter, or was in" certain land described, with " a net, or other instrument for the pur- " pose of taking or destroying game," or that the accused 1 Will. Gibson and others, E.G., Clerk Hope in Henry Brown and Deo. 30th 1842 ; 1 Broun 486 and others, H.C., May Hth 1846; Ark. 73., Bell's Notes 110. 3 Geo. Smith and others, Glas- 2 See observations by Lord Justice gow, May 3d 1848 ; Ark. 473. INDICTMENT. 455 did " unlawfully take or destroy" certain animals de- Monns. scribed, (or both these things may be stated cumula- tively), and — II. A statement that the accused had been twice previously convicted of the said statutory crime and offence. Although it does not amount to a legal objection Proprietor of that the proprietor of the land is not named, if the J.amet""''^ ^ description be otherwise sufficient, it is more correct in every case to state whose property the land was (1). According to the, practice, it is not necessary to state Not necessary whether the land was open or enclosed (2). whether land A third offence of taking game on a road, is charged ^^^^^'^ ™' by a statement that — TaMng game I. At a place described (being so described as to shew it to be such a place as the Act contemplates), the accused did "unlawfully take or destroy" certain animals described, and — II. That the accused had been twice previously con- victed of the said statutory crime and offence. A charge under this section, which set forth that the Misplacement accused did "unlawfully enter in or upon certain P,*^?'''*. „ „ '' '■ " nnlawfully. " outlets or gates, or upon the public road passing by a " field described," and did " then and there kill or " destroy a hare," was held irrelevant, as entering on a public road was not unlawful, and it was not said that the accused destroyed the hare " unlawfully " (3). Night poaching assaults are libelled by — Night poach- ° ° "^ ing assaults. I. A narrative of the contravention of § 1 of the Act 9 Geo. IV. c. 69, or of the 7 and 8 Vict. c. 29. 1 This was ohserved by Lords 2 The two rules here stated ap- Cowan and Axdmillan in John ply also to offences under the 9th Bird, Perth, April 21st 1863, (un- section of the Act of 9 Geo. IV., reported). — See also observation by o. 69. Lord Ardmillan in Kackenzie v. 3 Mains and Bannatyne y. Mac- Maberly, H.O., Nov. 21st 1859 ; 3 lullich and Fraser, H.G., Feb. 6th Irv. 459 and 32 So. Jur. 5. 1860 ; 3 Irv. 533 and 32 So. Jur. 475. 456 INDICTMENT. Modus. Several per- sons going armed. II. That at the time Libelled, the accused having been found at the place described committing the con- travention described, and a certain person or persons named and described (by such a quality as is recog- nised by the section of the statute as giving authority to arrest offenders — such as that they were the game- keepers of the proprietor, or the proprietor himself, or the like), having seized and apprehended the accused as offending under the statute before recited, or having advanced or attempted to do so (or pursued the accused to a certain other place for the purpose of apprehend- ing him, as the case may be), that — III. The accused did assault or offer violence to the said person(s) with " a gun or guns, or other fire-arms, " or other offensive weapon or weapons," and did cer- tain acts of assault described. The offence of several persons going armed in pursuit of game is charged by a statement — * I. That the accused did in company to the number of three or more together (or where there are only two accused), did in company together, and in company with some other person or persons to the prosecutor unknown, to the number of three or more together, (or where there is only one accused), did in company with some other persons to the prosecutor Unknown, to the number of three or more together, II. Unlawfully enter and were upon certain land described, III. Tor the purpose of taking or destroying game or rabbits, IV. ("Where there are several accused) "you the said " John Brown, David Green, and Peter White, being " all and each or one or more of you then and there " armed with " (a) certain weapon(s) described, " or with "some other offensive weapon, or weapons," (or where * Vide the rules referred to in note 2, previous page. INDICTMENT. 457 there are two accused) ; " you, the said John Brown and Modus. " David Green, both, and each or one or other of you, or " the said unknown person, or persons, or one or more of " them, being armed," as above, (or where there is only one accused) ; " you, the said John Brown, or the said "unknown persons, or one or more of them, being " armed," as above. Where, in any case, the persons who are not among Form where the accused, or any of them, are known to the prosecu- knows°the tor, instead of saying " with persons unknown," the names accomplice who and designations of those who are known are given, e.g., is not mdioted. " you, the said John Brown and Peter "White, in company " with Walter Black, horse keeper, now or lately residing " at " a certain place described, " or with some other per- " son, or persons," &c., and similarly, mutatis mutandis, in the case of there being several or only one accused. The statement that the offenders were to the number of statement as to three or more must be distinct. Where in a charge under ceediug two this section the prosecutor libeUed that the accused did ""«'*'« P'^oi^e. " all and each, being to the number of three or more to- " gether, or one or more of you," unlawfully enter land, ' &c., the bad arrangement of the charge was held fatal, as the " or one or more of you," being placed at the end, appeared to be a negative alternative to the " being to the " number of three or more together " (1). Bebach of Duty (p. 2J8). — A charge of breach of Breach of duty, duty by a public officer should state^- °"" ° " ^^^' I. The fact that (at the time specified in the libel) the accused held a particular office described, II. That it was his duty, as holding that office, to do certain things ; and — III. That he nevertheless acted in a certain way de- scribed, being contrary to the duty specified ; and — IV. That he did this in wilful neglect and violation of 1 Malcolm Maogregor and others, Perth, April 28th 1842; 1 Broun 331 and Bell's Notes 186. 458 INDICTMENT. Hod vs. Duties ortrust must be speoi- flcally de- scribed. Breach of duty in ships. Charge of doing wrong act. Charge of not doing proper act. his duty, and of the trust reposed in him in the said office (1). A charge of this class was abandoned where it was ob- jected that the duties and trust which the accused was said to have violated were not described, it not being held sufficient that it was averred that the accused when a person was brought before him, " as superintendent of " the police establishment/' &c., did in breach of duty and trust reposed in him " as superintendent afore- " said," act in a particular manner (2). Charges of breach of duty under § 239 of the Mer- chant Shipping Act (3), are laid either on wrong acts done, or proper acts omitted. A charge of acting wrongly requires — I. An explanatory narrative, giving the description of ship, voyage, &c., II. A statement of the improper acts done, by the ac- cused, III. That this was wilful breach of duty, or neglect of duty, or by reason of drunkenness, or by a combination of these as the case may be ; and — IV. A statement that all this, or part thereof, " tended " to the immediate loss, destruction, or serious damage " of the ship, or to the immediate danger of life and limb " of persons on board," or to both of these combined, as the case may be (4). In a charge of refusal or omission to do any proper or requisite act, the libel would set forth — I. A narrative as above. II. That the accused refused or omitted, as the case may be, to do a certain act — III. By wilful breach, &c., as above, 1 See Donald Smith, H.C., June 4th 1827; Syme 185.— Henry F. Adie, H.O., July 24th 1843; 1 Broun 601. 2 Alex. Findlater and Jas. M'Dougall, Glasgow, Jan. 9th 1841 ; 2 Swin. 527 and Bell's Notes 186. 3 Actl7 and 18 Vict. o. 209. 4 John Martin, H.C., July 22nd 1858; 3 Irv. 177 (indictment). INDICTMENT. 459 IV. That the act was proper and requisite for pre- Mopca. serving the ship from immediate loss, destruction, or serious damage, or for preserving any person on board from danger to life and limb, as the case may be (1). lEEEGUIWi-E MAEEIAGE (p. 222). — Where the accused irregular mar- is charged with celebrating a marriage without autho- ta^bmrithout rity, the libel states— authority. I. That the accused did "celebrate a marriage in a " clandestine and inorderly way" between two parties described (2), II. That he did this, "not being a minister of the " Church of Scotland, or a Eoman Catholic priest, or a " minister of any other church." This is all that is necessary to constitute guUt in the Where no case of an unauthorised person, but, where such is the proclaimed, fact, it is usual to add that banns had not been published, ^^g^i^^lgi^ or any proclamation thereof made, or certificate of pro- bration, these clamation produced to the accused, and that he received statei a sum of money for performing the ceremony. The aver- statement that ,, . pn/-^ii accused not a ment that the accused was not " a mmister of the Church minister infers " of Scotland, nor of any other church," is held a suffi- authority\o"° cient assertion that he had no title to celebrate mar- celebrate mar- nage. riage (3). A charge of celebrating marriage without banns re- Marriage with- out banns, quires — I. A narrative that the accused did celebrate a mar- riage contrary to the established order of the kirk, in a clandestine and inorderly way, between two persons de- scribed, 1 No charge of this kind has as 14th 1859 ; 3 Irv. 352 and 31 Sc. yet been tried in Scotland. Jur. 387). Accordingly, as in any 2 Hitherto the charge has been . future charge, there can be no crime Btated, " did wickedly, illegally, and but the statutory libelled in the ma- "Jeloniomly, celebrate a clandestine, jor, the charge must, of course, not ''inorderly, andirregularma,m3,ge," add words which are not justified .Sec. But this form was used as ap- by the statute. plicable to a common law charge, 3 Will. Dickson, Jedburgh, Sept. 1 which it has been found is not rele- 7th 1844; 2 Broun 278. vant (John Ballantyne, H.C., Mar. 460 INDICTMENT. Modus. Bigamy, form of charge. Ponn where both parties are accused. Not necessary to state direoUy that one guilty as art and part only was not already mar- ried. II. In respect he did tMs without banns having been proclaimed, or any certificate of banns having been pro- duced to him. Bigamy (p. 223). — In bigamy cases the libel sets forth— I. A narrative of the time, place, and manner of the first marriage, II. A statement that the accused "thereafter lived and " cohabited with the said A. B. as your lawful wife " (or husband), ^ III. That " the said A. B. being still alive, and your " marriage with her (or him) still subsisting," IV. The accused did " wickedly and feloniously enter "into a matrimonial connection " with a person described, the marriage ceremony having been performed by a cer- tain person described, V. That the accused did afterwards cohabit with the person as his (or her) wife (or husband), VI. That the accused did this " well-knowing that the " said A B. was stUl aKve, and that the marriage " between you and her (or him) stiU subsisted." Where the charge is made against both the parties to the second marriage, after the narrative of the first mar- riage (between, say John Brown and Martha Black), and the cohabitation following on it, the libel charges that " you, the said John Brown and Mary White, did wicked- " ly and feloniously enter into a matrimonial connection " with each other, the marriage ceremony having been " performed by," &c. Then follows the statement of co- habitation, and lastly it is set forth that " both and each, " or one or other of you, the accused, did this, well know- " ing that the said Martha Black was still alive, and that " the marriage between her and you, the said John Brown, " still subsisted." Where it was objected to such a charge for one of the parties, that as it appeared ex facie of the indictment that he had not been previously married, therefore his guilt INDICTMENT. 46] as art and pari; was not sufficiently charged by the form Modds. above stated, the objection was repelled (1). Where the charge is that both parties were guilty as " actors/' in re- spect they were both previously married, and both guilty as " art and part," in respect they knew that the mar- riage of the other party still subsisted, the prosecutor requires to exercise great care in making his averment. The cumulative averment is simple enough, that both and each knew that their respective marriages with A. B. and C. D. still subsisted. But when the prosecutor comes to state his alternative, the ordinary words of style, " or one " or other of you," become misleading and uncertain as to the averment necessarily implying that both are guilty, in one way or other. In such a case the only safe course is to make each branch into a distinct averment by itself, and to make a separate averment as to each accused (2). It is not necessary to give a description of the cere- Description of monial gone through at the alleged first marriage ; it is |rat"^airiage sufficient to allege that the parties were "lawfully married" unneoesBaiy, if °. TCI T name of oele- with a statement ot time and place, and oi the name and brant be given. designation of the celebrant. Thus it was held not a 1 Catherine Potter or Auchincloss " aliye, and that the marriage be- and David Inglis, H.C., July 21st " tween him and the said Jane 1852 ; 1 Irv. 73. " Green still subsisted ; or you, the 2 Thos.More and Christina Jeffrey " said John Brown, well knowing or Conper, Dundee, April 6th 1865 ; " one or other of the facts, last above 6 Irv. 73 and 37 Sc. Jur. 417. — For " libelled ; and this you, the said theamendedohargeunder whichthe " Jane Green did, well knowing (1) accused were brought to trial, see 5 " that the said Peter Black, your Irv. 75 note. Even the form of "lawful husband, was still alive, charge ultimately adopted, though " and that the marriage between relevant, seems scarcely satisfactory. " him and you, the said Jane Green, The following is suggested as a " still subsisted ; and (2) that the better form ;^" And this you the " said Mary White, the lawful wife " said John Brown did, well know- " of the said John Brown, was still " ing (1) that the said Mary White, " alive, and that the marriage be- " your lawful wife, was still alive, " tween her and the said John "and that the marriage between her " Brown still subsisted ; oryou,the "and you, the said John Brown, still "said Jane Green, well knowing "subsisted; and (2) that the said " one or other of the facts last above " Peter Black, the lawful husband, " libelled." " of the said Jane Green was stiU 462 INDICTMENT. Modus. good objection to a statement of a marriage by a Eoman Catholic priest in Ireland, that it was not averred that the parties were both Eoman Catholics (though this was essential by the law of Ireland to the validity of the marriage). The averment of a lawful marriage entitles the prosecutor to prove all that requires to be proved as "Lawfully to its validity (1). Nor is it any objection to the rele- dStoeg^ar vancy that the prosecutor avers the parties to have been marriage. « lawfully married," and sets forth facts plainly indicating an irregular marriage, the irregularity not affecting the Latitade as to legality of the marriage (2). In a case where the first wheramarriage marriage was said to have taken place sixteen years pre- performed long yiously, the prosecutor was allowed after naming the preyio . a]ieged celebrant, to add " or by some other clergyman to _. y " the prosecutor unknown " (3). Where the libel charged mentof subsist- a man with marrying a woman whose husband was alive, maTriageirdis- the Want of a distinct averment of knowledge on his part pensabio. ^-j^^^ ^j^g previous marriage still subsisted, was held fatal to the charge (4). Incest, form of INCEST (p. 225). — The indictment in a charge of incest, charge. wMch is generally libelled both at common law and on the statute, sets forth that — I. The accused did " wickedly, unlawfully, and felo- " niously " have carnal and incestuous intercourse with a person described, II. That the person was the accused's sister or daugh- ter, or as the case may be ; and — III. That he did abuse his body with the body of the said person described. If both the parties are charged, the libel describes the 1 Patrick Quillichan, H.C., Jan. seoutor stated on his responsibility 24th 1852 ; J. Shaw 537 and 1 Stuart that the latitude was essential in the 306 and 24 So. Jur. 173. circumstances. 2 Jas. Purves, H.C, Nov. 20th 4 Isabella Bain or Bell and John 1848 ; J. Shaw 124. Falconer, H.C., July 13th, 1832; 5 3 John Armstrong, H.O., July Deaa and Anderson 509 and 4 Se. 16th 1844 ; 2 Broun 261. The pro- Jur. 592. INDICTMENT. 463 relationship, and that they did wickedly, &c., have carnal modpb. connection and incestuous intercourse, and did abuse their Form where bodies with each other. Where the relationship of the acoueed! ^^ parties results from the marriage of one of them to a re- Form where lative of the other, the libel sets forth in general terms results from that the accused had been married to a certain person, '"^"^^se- and describes the relationship resulting from the mar- riage (1). Where such is the fact, it is usual to set forth Pact of preg- that in consequence of the incestuous intercourse, the eXng^gene-' female became pregnant, and was delivered of a male (or rally set forth, female) child at a certain time and place. Sodomy (p. 227). — A charge of sodomy against the Sodomy, perpetrator of the act sets forth — pe^ftato™^ I. The acts done by him (such as unloosening clothing, " wickedly and feloniously '' bringing private parts in contact with hinder part of person described), detailing whether there was an assault in order to accomplish the purpose, or whether the other person was a consenting party, or was under the age of puberty, II. " And did penetrate the same with your private " parts," III. And had thus " unnatural carnal connection " with the said C. D. A charge against a person consenting to the act sets Charge agaiust fQj.fU consenting party. I. A narrative of " wicked and felonious " exposure by both, of the act of contact, and of A B., the perpetrator, penetrating as above, and — II. That the accused did, consent and allow A. B. (the perpetrator) to bring his private parts in contact with " the hinder part of your naked body, and did con- "sent and allow him to penetrate the same as aforesaid," III. " Aad you had thus unnatural carnal connection « with the said A B." 1 John Oman, Inverness, April 14th 1865 ; 2 Irv. 146 (indictment). 464 INDICTMENT. Modus. Charge against both parties. Bestiality, form of charge. Indecent practices, form of charge in case of children. Seducing and debauching. Statement of age of child must be case of females. Where both parties are indicted together, the charge sets forth — I. A narrative of " wicked and felonious '' exposure hy both and of the acts of the perpetrator as above, II. Of the consent of the other person as above. III. " And you had thus, both and each of you, unna- " tural carnal connection with each other " (1). A charge of attempt is as above, except that the aver- ment of penetration is omitted, and that the closing aver- ment contains the words " then and there attempt to " have," instead of " had thus." Bestiauty (p. 228). — ^A charge of bestiality sets forth in the most general terms that the accused " did have " unnatural carnal connection with a cow," describing to whom the animal belonged. A charge of attempt is competent in equally general terms (2). Indecent Peactices (p. 228). — Charges, of impro- priety towards children set forth — I. That the accused did wickedly and feloniously use lewd, indecent, and libidinous practices and behaviour — II. Towards a person named, III. Being then six years of age or thereby, or other- wise under the age of puberty, IV. By doing certain things described, and " by using " other such lewd, indecent, and libidinous practices " and behaviour towards the said," &c. Where, in addition to using lewd practices, the charge is " seducing and debauching" the minds of children to such practices, the narrative will, of course, contain, in addition to the above details, a statement that the accused did so seduce and debauch the child and induce it to do certain things described. In a charge of this sort, uncombined with any assault, and not said to have been committed on a person of immature intellect or by 1 A form of charge will be found in Will. Simpson and Balph Dods, H.C., Deo. 29th 1845; 2 Broun 671. 2 Jas. M'Givem, H C, May 16th 1845; 2 Broun 444. INDICTMENT. 465 a person who had any charge of the child, such as the Modus. case of a schoolmaster debauching his pupils, it is not permissible to state the child, if a girl, to have been " under or about " the age of puberty, as that may mean above puberty, in which case, without some of the ele- ments above mentioned, there could be no relevant charge (1). The case of such practices towards boys may possibly admit of a charge in such terms (2). Where an act of indecent exposure is committed, not Elaborate in the form of lewd, indecent, and libidinous practices, neoessa^"in but as an outrage on public comfort and respectability, i^^eer^^"^ very great particularity is necessary. Por it may be a exposure, question of extreme nicety, where the line is to be drawn between a merely careless and a criminal exposure. Where the charge relates to exposure in a public man- ner, what is indispensably requisite seems to be, a state- ment that the accused did — I. " Wickedly arid feloniously " expose himself in a manner particularly described, II. That the place was a place of public resort, or could be seen from a place of resort near it, and that the respectable inhabitants, and in particular certain per- sons named, were annoyed and outraged by the accused's conduct. A charge of this sort was held irrelevant where the prosecutor had failed to set forth that the place was a public place, or whether the only building mentioned in the libel was inhabited, or who was annoyed by the accused's conduct (3). Where the charge consists of acts of indecent expo- Exposure to sure, not in a place of public resort, but to the annoy- indi^^*a1s.°* ance of individuals, the circumstances must be set forth 1 Eob. Philip, H.C., Nov. 2d Lord Justice Olerk Hope in the 1855; 2 Irv. 243 and 28 So. case of Philip supra. Jur. 1. 3 Mackenzie and others v. Whyte, 2 Andrew Lyall, Perth, April 26th H.C., Nov. 14th 1864; 4 Irv. 570 1853 ; 1 Irv. 218 remarked upon by and 37 So. Jur. 68. 2g 466 INDICTMENT. Modus. A statement of any lewd language used at the time might aid in giving relev- ancy to the charge. Obscene ■works, form of charge. with such minuteness, as necessarily to imply a deliber- ately indecent and Shameless act of annoyance and out- rage. It will hardly do, for example, merely to allege that the accused exposed his person, and that another person witnessed his doing so. It would be necessary to aver — I. The exposure and its particulars, and — II. That it was made in the presence of the indi- vidual(s) named, and to her (or their) annoyance, and to the outrage of her (or their) feelings, and — III. That it was wilfully done, with the express intent that it should be seen, and for the purpose of indulging the accused's own lewd and indecent propensities, or for the purpose of endeavouring to debauch the specta- tor's mind, and to excite inordinate and lustful desires, or for some other lewd and indecent purpose to the pro- secutor unknown. In the general case, such acts are accompanied by words which unmistakably indicate their abominable character and intention, and where such is the case, a quotation of the words used might be the best means of giving relevancy to the statement of the acts done. Dealing in Obscene "Woeks (p. 231). — In such a case the libel bears that the accused did — I. Wickedly and feloniously publish a book, named by its title, " by exposing the same for sale, and did then " and there wickedly and feloniously expose the same for " sale," and that — II. The book contains "lewd, impure, gross, and "obscene" passages, devised, contrived, and intended to vitiate and corrupt the morals of the lieges, particu- larly the young, and to create in their minds inordinate and lustful desires, and — III. The passages are either quoted or referred to as in an Appendix, or the prosecutor avers that the passages are unfit to be set forth at length or read in Court, and that a copy of the book " is now lodged" with the clerk INDICTMENT. 467 of Court, to enable the accused to see the passages Modus. wMch are described by the pages in the books. This last form was held competent after a de- bate (1). It had been previously held that, merely to set forth that a book named was all, or the greater part thereof, of the tendency above described, was not suffi- cient (2). Blasphemous Offences (p. 231). — The only case Blasphemy, which it is necessary to notice here is that of a person *^™ °* dealing in blasphemous books. Such a charge sets forth that the accused did — I. Wickedly and feloniously expose for sale a book described by its title, and did — II. Publish, vend, and circulate the said book, by selling and delivering it to a person described in consideration of a sum of money named, paid to the accused as the price, and — III. That the book was "profane, impious, and blas- "phemous," and contained passages denying the truth and authority of the Scriptures, and of the Christian religion, and " devised, contrived, and intended " to asperse, vilify, ridicule, and bring into contempt Scrip- ture and Christianity, particularly certain passages, (these being given at length, either in the libel or in an Appendix). The second clause in the above form is not absolutely indispensable, as the offence may be completed, although no sale be actually effected, but where it is the fact that a sale has taken place, this should be specified as above. Peofanitt (p. 232). — The term profanity is one which Profanity, no in modern practice is rarely applied except to breaches g™erai format of the peace committed in churches during divine ser- given, vice. No form can be useful, as the circumstances of 1 Henry Ecbinson, H.C., Nov. 2 Henry Eobinson, H.O., July 9tli 1843 i 1 Broun 643. 24tli 1843 ; 1 Broun 590. 468 INDICTMENT. Modus. each case must, almost necessarily, affect the form of the charge. A narrative of the facts, substituting such words as "wickedly, wilfully, and profanely," for the usual words " wickedly and feloniously," seems to constitute the only requisite of such a charge. Perjury, &o., PeKJUET AND OTHER CASES OP MAKING OaTH TO orm c arge. p^j^gggQQjj ^ £34 and 238). — A charge of this sort con- tains — I. A narrative of the circumstances in which the false oath was emitted, such as that the accused had been brought before the Sheriff to emit an oath in bank- ruptcy, II. A statement that he was duly sworn to speak " the " truth, the whole truth," &c., III. That he wickedly and feloniously, and knowingly, wilfully, and falsely deponed " in the following words," which were taken down at the time and signed, or (if the oath had not been reduced to writing), that he " wick- " edly," &c., deponed " in the following or similar terms," IV. " Whereas the truth is, and it wiU be proved, that " the facts, or part thereof, so sworn to by you, the said " John Brown, are false, and were known to you at the " time to be false," V. " Inasmuch as, " the truth is, and you well knew " that," &c., &c., as the case may be. Words "it will The words, " and it will be proved," are sometimes in- BomSimes re- serted in the " inasmuch " clause, as weU as the " where- peated twice. « j^g „ dausc, but it seems unnecessary to repeat them. Not necessary Where the oath was taken down and signed, it is not oath read over, necessary to aver in the libel that it was read over before ^°™ ■^'^^•■s. being signed (1). In cases where the false oath is not 08>t£i does not . _. _ , relate to evi- emitted in the form of evidence given after an oath to ^"''®' speak the truth, instead of the second and third heads 1 Janet Tumbull, H.O., March 13th 1833 ; Bell's Notes 98 and 6 So. Jur. 337. INDICTMENT. 469 above, the charge bears that the accused did falsely, &c., Mqdps. swear an oath, in the terms quoted (1). The statement of the true facts must expressly relate statement of to, and be an exact negative of, the statements in the respond with oath. Thus where it was averred that in the oath the t^g^o'^tf**"" accused, speaking of an agreement, said it did not apply to " &oery article," and the prosecutor's allegation quali- fied the statement that the agreement did apply to every article by these words, " or at least all articles " except wood, hay, and straw," the clause was held irre- levant, the one statement not being negative of the other (2). Again, where it was libelled that the ac- cused's state of affairs subscribed as relative to his oath in bankruptcy, did not contain a full and true account of his estate, this allegation was struck out, there being no statement that it was not a full and true account at the time when the oath was emitted (3). But where it was objected that the averment of fact did not contra- dict the alleged false deposition, as the accused was said to have sworn " I repaid Mr Doig about ten pounds," vyhereas the truth was affirmed to be " that you had not "repaid ^10 to Mr Doig," the objection was repelled, probably because the averment was made distinct by the statement that the accused " had not paid the said Alex. " Doig any sum of money " (4). "Where the perjury consists in distortion or falsification Form where of facts which did occur, it is usual to deny the state- makSthetruth ments made seriatim. But if the statement of the true ?^ deposition impossible. 1 John Barr, H.O., Jan. 23d Jur.52. The rubrics of both reports 1839 ; 2 Swin. 282 (indictment). of this ease seem to lay down a pro- 2 Thos. Bauohop, H.C., July 6th position of very doubtful soundness, 1840 ; 2 Swin. 513 and Bell's Notes and one certainly not supported by 93. — See also Hume i. 367, and case the reports themselves, viz., that it pfLawson there. is not necessary "that the facts, 3 Will. Inglis and Catherine Inglis, "which the prosecutor sets forth Glasgow, April 23d 1863 ; 4 Irv. " and intends to prove against the 387 and 35 So. Jur. 461. "panel, should be a direct logical 4 Jas. Henderson, Perth, Sept. "contradiction of " the oath. 30th 1862 ; 4 Irv. 208 and 35 So. form of charge. 470 INDICTMENT. Modus. facts is made a direct negative of the deposition, by stating any fact which makes it impossible that it should be true, this is all that is necessary. Thus, if the deposition bear that the accused witnessed certain things at a certain time and place, it is sufficient to allege the truth to be that the accused was not at the place specified by him at the time sworn to, " and did not see or hear any of the " circumstances deponed to by him, as .having then and " there taken place." SiAornation, SUBORNATION OP PbEJTTBY (p. 239). — ^A charge of subornation sets forth — I. A preliminary narrative of the circumstances from which the subornation resulted, such as that the accused had a lawsuit depending before a certain court described, or the like, II. That the accused, having formed the wicked and felonious purpose of perverting justice for his own ends and purposes, in reference to the said suit, by alleging and bringing false testimony to a certain effect named, III. Did " vdckedly and feloniously " solicit, entice, seduce, and suborn A. B., weaver in Bathgate, aforesaid> to appear as a witness at a certain place and time fixed for the trial of the said suit before a certain judge, or for the taking of a proof, in reference to said suit, before a certain commissioner described, as the case may be, and " wickedly, wilfully, and deliberately, to commit the " crime of perjury, by falsely swearing to certain pre- " tended facts, according to instructions which you then " and there gave to him, and in particular to swear that,'' &c., and — IV. That the accused did this by holding out to the said A. B., the expectation of good deeds and rewards, and by promising him the sum of .^50 or thereby (as the case may be), or by other means of inducement to the prosecutor unknown, V. That the accused having succeeded, by the means aforesaid, in wickedly and feloniously enticing, procuring. INDICTMENT. 471 and suborning the said A. B. to swear falsely, as afore- Modub. said, and thereafter the trial of (or the taking of the proof on commission in) the said suit having been pro- ceeded with before the said judge (or commissioner), and the said A. B. having been cited, adduced and examined as a witness at the said trial (or before the said commis- sioner), the said A. B. solicited, enticed, seduced, and suborned by the accused, did then and there, after having been solemnly sworn to speak the truth, wickedly, wilfully, knowingly, and falsely swear, &c. (here insert a statement of the deposition as in a case of perjury), VI. Whereas the truth is, and it will be proved, &c. (as in a case of perjury), VII. And the accused caused the said A. B. to be ad- duced and examined as a witness on his behalf at the said trial (or before the said commissioner), although he well knew that, solicited, enticed, seduced, and suborned by him, as aforesaid, he intended to give false evidence as aforesaid, and to commit wUful and corrupt perjury, by swearing as aforesaid, when, as was well known to the accused, the facts so sworn to by the said A. B., were false as aforesaid. A charge of subornation which does not specifyin what Enticement the inducement consisted, is irrelevant (]). But if the fledfbutlati- prosecutor tells all that he knows, he is entitled to take tude competent. the latitude of " some other means of inducement to the " prosecutor unknown." A charge of attempting to suborn sets forth a narrative Attempt. of the preliminary facts and of the scheme and entice- ment as above, adding some statement explanatory of the non-success of the attempt made, as that the person en- ticed refused to depone falsely, or pretended to consent, (or as the case may be). Defoecbment (p. 260). — A charge of deforcement, Deforcement, except in revenue cases, proceeds on a narrative — ""^^ ° " ^^^"' I. Of the circumstances of which the warrant was the 472 INDICTMENT. Modus. result, such as that the accused, having been twice con- victed of a certain offence, and ordered to pay a certain fine, and having failed to pay it, and the justices having issued a warrant in certain terms for his apprehension and imprisonment, and directing a certain officer to exe- cute the same, II. That the officer having proceeded to a certain place, with certain persons named, as his assistants or concur- rents (where such is the fact), did — III. Intimate that he was an officer of the law, and had a warrant, and did apprehend, or attempt to apprehend, the person to whom the warrant applied (or in the case of his errand having been well known, and of his having been attacked before he had taken the first step to exe- cute his duty, a narrative to that effect), IV. The accused did certain acts of resistance de- scribed, V. " AVell knowing, or having good reason to know," that the person named was an officer of the law engaged in the execution of his duty, as previously set forth (and that the other persons named were employed by and assisting him therein), VII. By all which, or part thereof, the officer and those assisting him were forcibly prevented from executing the warrant by the accused, and the officer was deforced by the accused. Where warrant Where the warrant was executed beyond the jurisdic- dorsation men- tion of the magistrate issuing it, the indorsation is set tioned in libel, ^^^.^.j^ -^ ^j^^ narrative. It is not an absolutely decided Question •' whether war- question whether in the case of the decree which con- prisonment " if taiucd the warrant, bearing that execution might pass by "oorn^ent" poinding and Sale, and imprisonment, " if the decree be necessitates an " competent," it is uecessary, in ordinary cases, to aver in competency, the libel that imprisonment was competent, or whether that is a matter of evidence. In one such case where it was set forth that the sum decerned for was due under INDICTMENT. 473 a local statutory tax (1), the objection that it was not Modus. stated that imprisonment was competent, was repelled, these words of style heing inapplicable to such a case. It is not a good objection to a charge of deforcement of ^^1^110" ° revenue officers that the charge sets forth no warrant (2). necessary in ° _ ^ '' revenue cases. But this rule, of course, is only applicable where the special duty libelled is not one of those to which the revenue statutes make a warrant necessary, Peison-bebaking (p. 246). — A charge of prison-break- Prison-break- ing sets forth— oh^ge™ " I. The circumstances of the imprisonment, whether under a sentence, or on commitment for trial, and the name and situation, &c., of the prison, or otherwise, as the case may be, TI. That the accused, being still legally confined, did — III. By a certain process described, or in some other manner unknown, make his escape, and did abscond (3). A charge of attempt is precisely similar, except. Attempt. of course, that its third head describes an attempt merely (4). A charge of breaking into prison to rescue prisoners should set forth — I. The particulars as to the name, &c., of the pri- soner, the cause of the imprisonment, description of the prison, &c., II. That the said person being stiU confined there, III. The accused did " wickedly and feloniously " do certain acts of violence described to a particular part of the prison described, IV. A detail of the escape, averring it to have been effected by means of the effraction before libelled. 1 Jas. Hunter and Thos. Peacock, Broun 495. H.C., Jan. 16th I860 ; 3 Irv. S18 and 3 Wm. Hutton, Ayr, April 13th 32 Sc. Jur. 475. 1837 ; 1 Swin. 497 (indictment). 2 PeterHamiltonand Jas. Jamie- 4 Eobt. Smith, Perth, Sept. 17th son, Inverary, Sept. 17th 1845 ; 2 1863 ; 4 Irv. 434 (indictment). 474 INDICTMENT. Modus. Oonviot at large, form of cliaTge. Treason- felony, form of charge. Sedition, form of charge. ng or ■writing. Where the attempt at rescue has failed, the charge would be as above, except that the fourth head would aver only that the accused acted " with intent," &c. Convict being at laege (p. 248). — This crime is charged by — I. A narrative of the conviction, such as that the accused was indicted before a certain court at sc certain time for a certain offence, and convicted either by ver- dict of a jury, or judicial confession as the case may be, and accordingly, on a certain day specified, was sen- tenced by the Court to a certain term of penal servitude, to run from the date of the sentence, II. A statement that nevertheless, at a certain time and place, the accused was found at large, III. Without lawful excuse, and — IV. Before the expiry of the term of the sentence (1). Teeason-Felony (p. 257). — A charge for this offence should set forth that the accused did — I. " Compass, imagine, invent, devise, or intend to " deprive or depose our most gracious Majesty Queen "Victoria," (or otherwise as the case may be, using the words of the Statute applicable to the offence to be charged), and — II. " Such compassings, imaginations, inventions, de- " vices or intentions, or one or more of them, you, the " said John Brown, did " III. " Express, utter, and declare " — in a certain man- ner described (as by distributing a placard or hand-bill, giving its terms), or addressing a meeting of persons in certain language described, (or as the case may be). Sedition (p. 260). — It is difficult to lay down any rules for the libelling of a charge of this sort, as it may vary much with the circumstances. In the case of sedi- tion by writing, or speaking, or the like, the requisite statement seems to be, that the accused did — 1 John Neillis or Neillus, H.O., May 20th 1861 ; i Irr. SO (indictment). INDICTMENT. 475 I. Wickedly, feloniously, and seditiously do certain Modus. acts described ; such as preaching a sermon or making a speech containing certain statements described, in presence of a concourse of people described, or publish- ing a pamphlet of a seditious tendency, passages being given from it to shew this ; or as the case may be, TI. That the accused did the acts libelled in a manner calculated to incite tumult and rebellion in the state, III. (Where such is the fact) that certain results fol- lowed ; e.g., that the people addressed by the ac- cused proceeded to do certain acts described, such as passing seditious resolutions, or doing acts of violence, or the like. Where the sedition is by acts of outward demonstra- Seditious oon- tion by a concourse of people or the like, the charge °™™^- should set forth — I. A narrative of the facts leading to the acts done ; e.g., that a number of people having assembled, and having formed the design of doing certain acts or other disorderly or violent or tumultuous acts unknown, for some seditious purpose described ; such as obtaining the repeal of a certain public tax or the like, did then and there — II. Wickedly, feloniously, and seditiously do certain acts described ; such as passing seditious resolutions described, or making an attack described on the house of a minister of state, or the like, as the case may be, III. That the accused was present and actively en- gaged with the concourse of people in the seditious acts which have been previously described, or one or more of them. Unlawful Oaths (p. 261). — It would occupy too UniawM much space to give in detail the forms applicable to all of diarg™ offences of this class, but the general requisites are, a statement of the act done, (administering a certain oath or engagement, or taking an oath or otherwise), with a full detail of the circumstances and purpose, &c., 476 INDICTMENT. Modus. Conspiracy, form of charge. Procuring commission of crime. especially where the purport is to hind to commit treason or murder, the statement being qualified by such words as " wickedly, wilfully, and unlawfully." CONSPIBACY (p. 269). — It is unnecessary to go into any detail on this head. When conspiring to do a criminal act is libelled as a substantive charge, the libel sets forth that the accused did form a wicked and felonious conspiracy, and after giving a narrative of its nature, charges that in pursuance of the conspiracy the accused did certain things, the details being such as is necessary to constitute the crime, for the perpetration of which the conspiracy is said to have been organised. PEOcuEme THE Commission of Ceimb (p. 270). — Charges of this sort may safely be drawn upon the model of a charge of subornation of perjury, or attempt to sub- orn,* A statement of the scheme and the enticement (giving its nature, and taking a latitude of " some other " means of inducement to the prosecutor unknown "), seems all that is necessary to constitute a good charge of attempt to procure. Statements supplbmen- TAEY TO WAEEATIVE. The statement of the modiis of the offence having been made, it is not easy to lay down a rule as to what/acfe fol- lowing upon or resulting from the crime, may be set forth in the libeL Of course those facts following upon the act of the accused, and which are of the essence of the offence, or of an aggravation, as for example, the death in a case of murder, or the danger to life in a case of Question wiiat assault, must be set forth. But it becomes a more difS.- qu°ent™^offence ^^^^ qucstiou, wheu details of matters which have hap- may be libelled, pened Subsequent to the commission of the offence, but which are not necessary to its constitution, are inserted. Tiie following are some of the cases in which a state- ment of such facts has been permitted. In cases of fire- raising, it is quite usual to insert a clause stating that the fire was " thereafter discovered, and by the exertions » Vide 00,4:71. . INDICTMENT. 477 " of well-disposed persons was subdued and extin- Modus. " guished " (1). Where the accused was charged with falsely taking the oath of possession under the Eeforra Act, a statement of the fact that he thereafter did vote was allowed to remain part of the libel (2). Where the charge was incest, the prosecutor averred, without objec- tion, that in consequence of the incestuous intercourse, the female accused became pregnant and was delivered of a child (3). In all these cases, however, the facts libelled were mere incidents connected with the crime, and in fact could have been competently proved without notice in the indictment at all. It was, therefore, plainly com- petent to make them part of the libel, although it was unnecessary to do so. But, on the other hand, the pro- secutor has been held not entitled to add to a charge of assault a statement that the person assaulted " having " been terrified " by the accused's violence committed suicide, there being nothing in the libel to shew that the suicide was a direct consequence of the assault, and there being no charge of aggravation in the major pro- position (4). It is in cases where the prosecutor proposes, by an Allegations to ,,...,., , , „ 1 . account for allegation in his charge, to account tor unusual circum- unusual cir- stances connected with the prosecution, that the greatest comieotion ™ latitude of statement of facts subsequent to the offence with the pro- is permissible. For example, where the accused in a Destniotiou case of forgery has destroyed the document, it is compe- °* forged ° "^ "^ _ ■*- document by tent to aver the fact, to account for its non-produc- accused. tion (5). Again, it has been found not incompetent to 1 John M'Bain, Aberdeen, April 2 Swin. 282 and Bell's Notes 190. 25th 1854 ; llrv. 461 (indictment). 3 Will. Cuthbert and Isobel —John Maekirdy, Glasgow, Oct. 1st Cuthbert, Perth, April 26th 1842 j 1 1856; 2 Irv. 474 (indictment).— Broun 311 (indictment). Dan. Black, H.C., Jan. 9th 1857 ; 2 4 John Eobertson, Perth, May Irv. 683 (indictment). — Patrick 8th 1854 ; 1 Irv. 469. Anderson, Glasgow, Oct. 1st 1861 ; 6 Dionysius Wielobycki, H.O., 4 Irv. 95 (indictment). Jan. 8th 1857 j 2 Irv. 579 (indict- 2 John Barr, H.O., Jan. 23d 1839 ; ment). 478 INDICTMENT. Modus. accoiint for delay in bringing the accused to trial, or for Concealment of latitude taken in specifying the time. In a case of theft and breach of trust, the Hbel may set forth the means by which the accused concealed his frauds, viz., that by failing to enter in the books of his master the sums he received, the accused did " contrive to conceal " his acts of theft, &c. (] ). Where the trial has been delayed by the flight of the accused, it is quite usual to insert a statement of the flight in the Ubel, thus : — " And you being conscious " of your guilt in the premises, did abscond and flee " from justice." And where the accused has been pre- viously indicted and outlawed for non-appearance, a statement of this fact is also sometimes made in the libel (2). The law is now much more strict than it formerly was as to the insertion of hypothetical statements of conse- quences which might have ensued from the crime charged. Formerly, it' was not uncommon to append to the description of the crime some such statement as that the accused was "only prevented from committing " further depredations by being then and there detected " in the act of stealing ;" or in cases of fire-raising, that the fire " would probably have burned the whole tene- " ment and adjoining houses, if it had not been dis- " covered and extinguished " (3). It may be doubted whether such clauses would be allowed to stand now. Being not statements of fact, but guesses, they seem totally out of place in a document so strictly logical as a criminal libeL defalcations. Absconding of accused. Outlawry. Statements of results which would have followed from crime if not prevented. 1 Thompson Aimers, Ayr, Sept. 24th 1857; 2 Irv. 725.— See also Bbenezer Seattle, Dumfries, April 28th 1850 ; J. Shaw 356 (indict- ment). — John Eae, H.O., May 16th 1854; 1 Irv. 472. 2 Hob. Potter, Glaagow, May 2d 1844; 2 Broun 161 (indictment). 3 David Muir, H-C, Nov. 28th 1836; 1 Swin. 402 (indictment).— Mary Lorimer, Aberdeen, April 19th 1838 ; 2 Swin. 100 and BeU's Notes 190.— Niool Laidlaw, July 13th 1838; Bell's Notes 191.— Harris Eosenberg and Alithia Bamett or Rosenberg, Aberdeen, April 16th 1842 ; 1 Broun 266 and Bell's Notes 191. INDICTMENT. 479 In cases of murder and other personal injuries, where Averment op the prosecutor proposes to prove malice at a considerable ^llfi.^: interval before the offence, he must give notice in the libel at the conclusion of the statement of the modus, thus : — " And you the said A. B. did previously evince " malice and ill will against the said C. D." (1). A statement in this form is sufficient without any further particulars (2). But it is not a relevant averment to state that the accused did " conceive " malice, as such a statement does not indicate anything specific (3). Where the malice was evinced by previous violence, it is enough to express this in the libel, thus : " Did pre- " viously evince malice and ill will against the said " 0. D., by repeatedly threatening, beating, and assault- " ing her " (4). But such expressions must be clearly connected with and made part of the charge of malice. Where, instead of saying " by maltreating," &c., the charge, after stating the malice, added, " and had on " previous occasions beaten and maltreated her," this passage was struck out (5). Where there are several charges in the libel, it is not necessary to append a separate averment of malice to each of them ; an aver- ment made at the close of the whole charges, in general terms, is held to apply to them all (6). 1 Alison ii. 301. 4 Joseph Bae and Bob. Keid 2 Alex. Marshall, Perth, Sept. H.C., July 22d 1817 ; Hume ii. 238, 1835; Bell's Notes 218. — Janet note 1, and 2 Broun 130, note 1.— Campbell or MacleUan, H.C, Nov. Thos. Wilson, H.C, March 14th 4th 1846; Ark. 137 (See several 1844; 2 Broun 129 (indictment).— cases quoted by the Lord Justice Bundas M'Einer, H.O., July 24th Clerk Hope, in giving his opinion 1844 ; 2 Broun 262 (indictment). — in this case). See also numerous cases mentioned 3 Will. Alexander and Janet by the Lord Justice Clerk Hope in Blackwood aZiiM Martin, H.C, Jan. Janet Campbell or MacleUan, H.C, 27th 1827 ; Syme 63. But the con- Nov. 4th 1846 ; Ark. 137. ceiving of malice may bo compe- 5 Eob. Morrison, Glasgow, Dec. tently set forth in the preliminary 27th 1842 ; 1 Broun 499 and Bell's narrative. — Agnes Hutton or Oro- Notes 79. marty and Jas. Connell, H.C., July 6 Walter Bonaldson, H.C., May 2l6t 1843 ; 1 Broun 588. 16th 1866 ; 2 Irv. 426. 480 INDICTMENT. Mode op chabging A6GKAVA- TIONS. Aggravation not ooyered by major or affirmation incompetent. Aggravation must not be higher than statement in major. Aggravation in major and affirmation must be covered by the charge. It will not be necessary to speak at any great length of the mode of charging aggravations. No aggravation can be charged which is not covered by the major pro- position. Thus, where a charge of using improper practices towards a child, stated at the end of the narrative that the accused communicated venereal disease to the child, " whereby she was seriously injured " in her person and health," these words were held irrelevant, there being no aggravation charged in the major proposition (1). In the same way, no aggravation can be charged which is not averred in the affirmation of guilt. For example, where the affirmation charges the accused with guilt of theft aggravated by previous conviction only, it is incompetent to allege at the con- clusion of the libel that he is habit and repute a thief (2). Nor jmay the aggravation be stated higher than the statement of it in the major proposition. For example, where the major proposition charged previous conviction of theft only, and the accused was stated in the minor proposition to have been convicted of 'theft by house- breaking, the Court held that the conviction could only be founded on as one of theft, without the aggravation of housebreaking (3). It is, of course, indispensable, that the charge set forth facts relevant to support the aggravation (s) stated in the major proposition, and in the affirmation of guilt, e.g. if the charge be theft, aggravated by previous conviction, it must be averred that the accused has been previously convicted of theft (4) : or, if the charge be assault, especially when committed by a son upon his father, X Jas. Mack, Glasgow, Deo. 22d 1858 i 3 Irv. 310. 2 Will. Harvey and Jas. Macoul- loch, Feb. 2d 1835 ; Bell's Notes 184. 3 Purves Parian and Watson Parian, Feb. 27th 1832; Bell's Notes 178. — The proper course in such a case is to allege the previous conviction in general terms as for the crime of theft without mention- ing that it was aggravated.— See Alison ii. 591. 4 Elizabeth Cameron or Mathie- son, H.C., July 14th 1856 ; 2 Irv 445. INDICTMENT. 481 the charge must bear that the injured party was the Mode of accused's father, or if the assault be charged as com- aggeavI- mitted with intent to ravish, it must be specific- "°''^- ally alleged that such was the intent. Thus, where under the Coining Statute, a certain act, following on previous conviction of certain offences, was declared to be a high crime and offence, a charge that the ac- cused was guilty of the high crime and offence was held irrelevant, it not being averred that he had been previ- ously convicted. It was pled without success that the affirmation of guilt of the high crime and offence neces- sarily implied previous conviction, and that an extract previous conviction was libelled on as a production (1). Again, where the following was stated in the major pro- position in aggravation of a charge of reset — " especially " where goods stolen by a youth from his employers are " feloniously resetted by his parents," but the narrative did not state that the thief was the resetter's son, or that his parents knew the things stolen to have belonged to his employers, the aggravation was passed from on objection (2). In the same way the words " to the griev- " ous injury of the person " being set forth in the major, the objection that there was no statement in the narra- tive corresponding to them was held good (3). And where the aggravation consists in the fact that the accused ^ion^ oonsfsts or the party injured holds a certain position — such as i" t^i? accused the office of magistrate, or minister of religion, constable holding certain of police, or the like— it must be distinctly averred that ^"^'"t'be' *'''' he held the office at the time. Where it was objected averred. to a charge that there was no statement that the party was a magistrate at the time of the assault, although his designation in the libel described him as 1 Will. Morrison and Mary Cur- 3 John Stuart and Catherine ran or Smith, Glasgow, Dec. 28th Wright, June 15th 1829 ; BeU's 1864 ; 4 Irv. 582. Notes 180. — See also John Eunoie, 2 Alex. M'Oraw and others, July Inverness, April 1832; Bell's Notes 20th 1831 ; Bell's Notes 187. 187. 2h 482 INDICTMENT. Mode of chabging AGGRAVA- TIONS. Where aggra- vation is injur- ing persons in the execution of their duty, knowledge that they were so acting must be alleged. Not necessary to describe the duty injured party was per- forming. Where one crime charged as an aggrava- tion of another, a full narrative necessary. being a magistrate, the objection was sustained (I ). But a direct statement that the party held the office at the time is not indispensable, provided what is averred necessarily implies it. For example, in a case of assault upon a clergyman, it may be inferred from a narrative such as this — " you having formed the wicked intention " of assaulting and beating the reverend John Brown, " minister of the parish of , .... did, in "pursuance of said intention, . . . . go to the " manse of , being the dwelling-house in which " the said reverend John Brown lived, with the pre- " meditated purpose of seeking the snid reverend John " Brown to assault him " (2). Again, where the aggra- vation consists in the crime being committed against persons while engaged in executing their duty, it must be averred that the accused knew them to have been so en- gaged (3). But an express statement to this effect is not requisite, provided the species facti set forth, sufficiently indicate it. Where mobbing and rioting was charged as committed " for the purpose of obstructing and assaulting " officers of the law in the execution of their duty," it was held that this necessarily inferred knowledge that they were officers (4). And it is not necessary to de- scribe the exact duty upon which the officers were engaged (5). Where one crime is charged as an aggra- vation of another, as for example, where housebreaking 1 Geo. Cameron, Inverness, April 28th 1832; 5 Deas and Anderson 257 and Bell's Notes 187. 2 David B. Williamson, H.C., June 13th 1853 ; 1 Irv. 244. 3 Alex. Alexander and Jas. Alex- ander, H.C., Jan. 22d 1842; 1 Broun. 28 and Bell's Notes 102.— Geo. Maclellan' and others, H G., Deo. 26th 1842 ; 1 Broun 478 and Bell's Notes 187.— Mr BeU in his Notes, p. 186, incorrectly states that in the case of Alexander the rele- vancy was sustained. 4 Helen Tuill and others, H.C., Deo. 28th 1842 ; 1 Broun 480 and Bell's Notes 187 — See also Beattie V. the Procurator Fiscal of Dumfries, H.C., Dec. 10th 1842; 1 Broun 463 and Bells Notes 186. 5 Michael Devitt and Eose David- eon, E.G., June 12th 1843 (unre- ported); see J. Shaw 233 note. — Telfer v. Moxey, H.C., June 2d 1849 J J. Shaw 231. INDICTMENT. 433 CHARGING AQGRAVA- is charged as an aggravation of theft, the crime which Mode of constitutes the aggravation must he described as speci- fically as would be necessary in a separate indictment ^'°''^' for that offence. As regards the form of libelling aggravations, it may Form in which suffice to state that all aggravations except previous conr ubeiied? ^°"^ victions, and the charge of being a habit and repute thief, are set forth in the body of the charge. Previous Prev. con. and conviction and allegations of habit and repute, are in- serted after the close of the detail of the crime — " and " you the said John Brown, are habit and repute a thief, "and have been previously convicted of theft" — "and " you the said Thomas "White have been previously con- " victed of the crime of assault." In libelling a previ- Conviction of ous conviction of a crime depending on guilty know- "uttenng as ledge, such as uttering, it is sufficient to say that the "^oient^de* accused has been previously convicted of the crime " of scnption.guiity "using and uttering" a certain thing " as genuine," without ^ing implied adding, " knowing the same to be forged," as the guilty ™n^f(.[fon °* knowledge is necessarily implied in the conviction (1). The last statement of fact which is libelled is the Statement emitting of a declaration by the accused. The form is dS)lakation. invariable — "you, the said John Brown, having been " apprehended and taken before John Thomson Gordon, " Esquire, Sheriff of Midlothian, did, in his presence at " Edinburgh on the 14th day of June 1864, emit and " subscribe a declaration." In the case of the prisoner having refused to sign, or having been unable to write, the form is — " did emit a declaration which was " subscribed by him in your presence, you having " declined to sign the same," or " you having declared " that you could not write," (as the case may be). Where the libel did not set forth that the declaration ^^'J^™,'" ^*?*® had been subscribed, the prosecutor was not allowed to signed. found npon it (2). But it is not essential that the libel 1 David Scott and Geo. Sinclair, 2 Ronald Gordon, H.O., Dec. 2lBt Nov. 19th 1832 j Bell's Notes 188. 1846 j Ark. 196. 484 INDICTMENT. Statement libelling declaration. Not essential to state that magistrate signed in ac- cused's pre- sence. Mode of libel- ling several declarations. Libelling pkoductions. should state that the signature of the magistrate was appended in the presence of the accused (1). Any sub- stantial mistake in stating before whom the declarations were taken, will be fatal to their admissibility (2). When there is more than one declaration emitted be- fore the same magistrate, they may be condescended' on generally by stating that the accused did, in presence of, &c., and upon certain dates " emit two several de- " clarations." Where there were four declarations, the words, " did in his presence on the 13th, 15th, 26th, and "29th days of March 1858, emit and subscribe four " several declarations," were held to make it competent to prove that one declaration was emitted on each of these days, and the objection that the words formed too ambiguous a description was repelled (3). After stating the taking of the declaration, the indict- ment proceeds to enumerate the articles to be produced at the trial, thus : — " Which declaration, as also a medi- " cal report or certificate, bearing to be dated 18th April " 1864, and to be subscribed Douglas Maclagan, M.D., " Henry D. Littlejohn, M.D., F.E.C.S., or to be similarly " dated and subscribed ; as also a hammer, as also a pair " of tongs, as also an extract or certified copy of a convic- " tion of the crime of assault, obtained against you, the " said John Brown, under the name of John Barron, before " the Police Court of Edinburgh, on the 17th day of June " 1851 ; as also, extracts or certified copies of two seve- " ral convictions of the crime of assault obtained against "you the said John Brown, under the name of John "Brown, alias John Barron, before the Sheriff Court " of Edinburghshire, each with a jury, at Edin- " burgh, on the 20th day of October 1854 and 18th 1 Margaret Plenderleith or Dewar, H.O., June 2lBt 1841; 2 Swin. 558 and Bell's Notes 278. 2 Angus M'lver, Inverness, Sept. 1835 ; Bell's Notes 276. 3 John Macleod, Inverness, April 28th 1858 ; 3 Irv. 79 and 30 So. . Jur. 521. The phraseology was un- doubtedly ambiguous. The follow- ing would have been better : " did in. "his presence emit and subscribe " four several declarations, on the " 13th, 15th, 26th, and 29th days of " March 1858 respectively." INDICTMENT. 435 " day of November 1857 respectively, being to be used Libelling " against you, the said John Brown, at your trial, will, for - " that purpose, be in due time lodged in the hands of the " Clerk of the High Court (or ' Circuit Court,' as the case may be) " of Justiciary, before which you are to be tried, " that you may have an opportunity of seeing the same." No elaborate description of the articles or documents to Elaborate be produced is required. All that is necessary is that un^^eoessary. sufficient information should be given to enable the ac- cused to know what to look for in the Clerk's hands. In one case the words " part of a dress " were held too vague, as it should have been stated whether it was a male, female, or child's dress that was meant (1). Where a book, which was to be produced, was described as a " day-book kept by " A. B., whUe the book actually pro- duced was blank and contained no writing whatever, the production was withdrawn upon the objection that such a book could not be truly said to be " kept " by any one (2). But where it was objected that a production was libelled on as a " penny piece," and that the article produced was so worn as to be practically only a piece of copper, and further that it was at any rate of a coinage which had been called in, and not a current coin, the ob- jection was repelled (3). The dates and names by which medical reports, &c., are described, must be correct. A medical report was withdrawn which was described as signed " Octavius D. Trezivant," while in reality it was signed " Octavius TJ. Trezivant " (4). In cases where the Where articles articles to be produced have already been described in scribed before, the libel, it is sufficient to refer back to the former de- aoTmay°be''r^ scription : — " The money above libelled, or part thereof" furred to. 1 Mary Wood, H.C., Nov. 7th 3 Jas. Bell and others, H.O., Jan. 1856 ; 2 Irv. 497 and 29 Se. Jur. 6. 19th 1846 ; Ark. 1. 2 Joseph M. Wilson, H.O., June 4 Jas. Matheson, H.O., Nov. 8th 1867; 2 Irv. 626 and 29 Sc. Jur. 20th 1837 ; 1 Swin. 593 and Bell's 561. Notes 276. 486 INDICTMENT. Libelling pboductions. Convictions must be so de- scribed as to prevent mis- take, but notMng further is requisite. Not necessary to state the name under which the accused was convicted. Form of libelling con- viction on con- fession in sheriff court. Coining convictions. But such a reference must be so expressed as not to create ambiguity (1). If convictions be so described as to prevent possibi- lity of mistake, punctilious adherence to the form above given is not required. Where " two complaints and con- "victions, dated respectively 18th Dec. 1832 and 16th " Dec. J 837," were libelled on, the objection that the date of the first though correct as regarded the conviction, was not the date of the complaint, was repelled (2). Again, in a case where there were two accused, one conviction being libelled on as obtained against " you, the said John "Mackie," and the libel charging another as obtained " against you," without adding the name, and concluding with the usual statement that they were to be used in evi- dence " against you, the said John Mackie," the descrip- tion of the second conviction as applicable to John Mackie was held sufficient (3). Where previous convic- tions have been obtained against the prisoner under different names, these names should be stated in the libel, but their absence wUl not prevent the prosecutor from proceeding to prove these convictions (4). A conviction on the prisoner's own confession in a Sheriff Court jury case is properly described as " before the Sheriff, with a " jury," although the prisoner pleads guilty and is sen- tenced without a jury being empanelled (5). And this rule holds good even where the plea is offered, and sen- tence pronounced, at the first diet when no jury is pre- sent (6). Where the previous conviction was one under the Coining Acts, and was described being " of the crimes 1 John Wilson and Donald Mac- gregor, Perth, Sept 1834 ; Bell's Notes 277. 2 Catherine Eae or Allan, July 8th 1840 ; Bell's Notes 276. 3 Alex. Ba.e and John Mackie, Aberdeen, April 1830; Bell's Notes 277. 4 Margaret Brown or O'Hara, H.O., May 23d, 1842; 1 Broun 362 and Bell's Notes 276. 5 Catherine Connolly or M'Kay, H.C., July 11th or 14th 1859 ; 3 Irv. 432. 6 George M'Eae, H.C., Nov. 7th 1856 ; 2 Irv. 487. LIBEL. In High Court. INDICTMENT. 487 " and offences set forth in the before recited section of Libelling " the statute above libelled, or of one or other of them," ''"°""'^'°^°' the objection was repelled that this did not state of what crime the panel had been convicted (1). Previous con- victions in coining cases should still be recited in the ordinary mode used in Scotland, the section of the coin- ing statute relating to this matter having been held not to apply to Scotland (2). A long series of articles may be appended to the libel Articles may and referred to, thus — " as also the books, writings, and j'^^g^^™''^'^ ^^ " other articles specified in an inventory hereto annexed " and referred to, or part thereof" * The libel concludes — "All which, or part thereof, being Conclusioii of " found proven by the verdict of an assize, or " admitted by the judicial confession of you, the " said John Brown, before the Lord Justice General, " Lord Justice Clerk, and Lords Commissioners of " Justiciary, you, the said John Brown, ought to be " punished with the pains of law, to deter others from " committing the like crimes in all time coming." In cases for Circuit, after the words Commissioners of in circuit Justiciary follow the words " in a Circuit Court of Jus- *^°"'^'- " ticiary to be holden by them, or by any one or more of " their number, within the burgh of , in the month " of , in this present year 18 — ." In criminal letters in criminal the wording of the conclusion is the same except that in ^ ™' Supreme Court cases the words " Our Lord Justice Gene- "ral," &c., are used instead of "the Lord Justice General," &c., and in Sheriff Court cases the words " before me or any of my substitutes," are used instead of the words "before our Lord Justice General," &c. Where the words " being found proven by the verdict of omission of "an assize" were omitted, the accused objected after the ^^j,'|™tj*j^i '° jury were sworn to their returning any verdict, and the ob- 1 Andrew Dott and Thos. Dott, Francis, H.C., Feb. 2d 1863 ; i Irv. Perth, Oct 2d 1855 ; 2 Irv. 228. 292 and 35 Sc. Jur. 270. 2 Chas. S. Davidson and Stephen * Vide next page. 488 ' INDICTMENT. Conclusion jection was Sustained and tlie panel assoilzied (1). The OF LIBEL. -vfords " to deter all others," &c., to the end, though of "deter" &o. invariable style, are not material, the conclusion of the not eseentiai, indictment being complete with the words " pains of „.„ . " law " (2). This forms the conclusion of an indictment. criminal letters. In criminal letters the will or direction to officers of law to summon the accused to appear and underlye the law on a certain date, and to summon witnesses and assize, forms the conclusion of the libeL In cases to be tried by jury in the Sheriff Court, the will names two diets of compearance, the second being nine clear days after the first (3). Signature op The Ubel is signed on each page. Criminal letters are in all cases signed by the Clerk of the Court. Indictments are signed by the Lord Advocate, or one of his deputes. Inventories Where inventories of articles, or circumstances ; or ap- AND APPEN- ' J r DICES. pendices, setting forth the tenor of documents are at- tached to the libel, they are placed immediately after the conclusion in indictments, and after the will in criminal letters. They are headed " Inventory " or " Appen- "dix referred to in foregoing indictment" (or "criminal "libel"), as the case may be. Or, where there is more than one — " inventory " (or " appendix "), ISTo. — referred to," &c., is the form. Inventories and appendices being part of the Must ^« signed libel, must be signed as the Ubel is, by the prosecutor in ^ ^ \^ ^^- an indictment, and by the Clerk of Court in criminal letters (4). Where the libel was in the form of criminal letters, the objection was sustained that the inventory ought to be signed by the Clerk of Court, and that it was not sufficient that it was signed by the Advocate Depute (5). Appended to the libel is a list of the prosecutor's wit- 1 Hugh M'Nefflage, Inverary, 3 Act 16 and 17 Vict. c. 80 § 35. Sept. IStli 1850 ; J. Shaw 469. 4 Alison ii. 318, 319.— ii. 693. 2 Dawson v. Maolennan, H.C., 6 J. Eeid and M. Shirreffs, H.C. April 2d 1863 ; i Irv. 367 and 35 May 29th 1826 ; Shaw 167. ' Sc. Jur. 515. INDICTMENT. 439 nesses. It is not necessary to enter at great length into the Lht of discussion of the accuracy requisite in naming and de- WITNISSSES. signing the witnesses to be called. As regards the name, ne^Tmusrhe it is of course essential that it should be substantially ^3^^^'^°''*^^ correct. If there be any substantial error in the name, such as putting John for James, or Low for Law, or the like, the result of course is that the witness, who is afterwards produced, must be held not to be the person of whom notice was given (1). And the operation of Substantial error fatal this rule is not held to be affected by the statutory though objeo- regulation, that if the accused can make it appear that ^XrTtu^y ™ he has been misled by the name and designation given, swom. the objection shall be stated before the jury is sworn, for where the name is not only misleading but absolutely wrong, the objection maybe stated although the jury have been sworn, the question being the identity of the witness with the person produced (2). But a mere difference of spelling wiU not found a good objection, unless the spel- ling truly alter the name to a different one (3). In fact, it may be stated generally, that the rules in reference to Euies as to the naming of the accused apply to the naming of wit- cusea°|en'CTaiiy nesses.* Where a witness was named " Octavius Deci- applicable, "mus Trezivant," the objection that "Decimus" should have been "Undecimus" was repelled, as the witness would have been sufficiently named by one Christian name and one surname (4). In designing the witnesses, all that is necessary is to 1 Hume ii. 370, cases of Steven- and others, Glasgow, Sept. 23d 1843; son and others : Mackenzie : and 1 Broun 618. Kennedy in note 2. — ii. 371, oases of 3 Hume ii. 158, case of Cook in Gray ; SmithaudBrodie: and Smith note 8. The designation here was there. — ^Alison ii. 411, 412, and cases that of the injured party in the body of Campbell and Mackay : and Car of the libel, but the principle is pre- there. — David Muir, Inverary, Sept. cisely the same. Alison ii. 411, I2th 1821 ; Shaw 55. to 413. 2 Act 9 Geo. IV. c. 29 §11.— John 4 Jas. Matheson, H.C., Nov. M'Cabe and others, Glasgow, Jan. 20th 1837 ; 1 Swin. 693 and Bell's 12th 1838 ; 2 Swin. 20.— Peter Kelly Notes 262. • Vide 318. 490 INDICTMENT. List of witnesses. Designation of witness is sufficient if it give informa- tion by which he can be found. Where designa- tion once given, former descrip- tion may be referred to.. Inaccuracy of designation of no consequence unless accused can shoiT that he was misled. supply the accused with sufficient information to enable his advisers to find them by proper enquiry. Accordingly, the designation is usually given in the simplest form — "now or lately a constable in the Edinburgh Police," — " spirit dealer, now or lately residing in Lyon's Lane, in or " near Port Glasgow " (1). And where the witness has no fixed residence, a reference to a place where he has resided, and where he may be " heard of," may be suffi- cient (2). The rule that what has once been detailed in the libel, does not need to be elaborately repeated, applies also to the list of witnesses, so that where a person whose designation has once been given is named again in the list, it is sufficient to refer to the previous designation, thus : — " Ann Brown, millworker, now or lately residing " with Jean Brown, or Alton, above designed." All mere inaccuracies in the designation of a witness will be of no consequence, unless the accused can show that he has been misled (3). His objection on this ground must be stated before the jury are sworn (4), and it will not be 1 The words " no w or lately " are invariably used, and are sufficient to cover a period of some months. — Hume ii. 372, case of Enox and others in note 2. — Alison ii. 427, 428, cases of Macdougall : Jones and others; and Oockburn there. — Ohas. Maclaren and others, H.O., Jan. 11th 1823; Shaw 92. 2 John Skeldoch, Perth, April 15th 1830 ; 6 Deas and Anderson 149. 3 Hume ii. 372, cases of Gardiner : Macdonald and Black : - Gray : Cowan : Stewart : and Burnett and Koss in note 2. — AJisonii. 416 to 419. 4 Act 9 Geo. IV. c. 29 § 11. This enactment had the effect of almost entirely putting an end to the criti- cal objections formerly taken to the designations of witnesses. The fol- lowing are a few of the cases reported prior to the Act : — (1.) Gases in which objections were sustained — J. Stew- art, Perth, Sept. 17th 1824; Shaw 122.— Ann M'GiU or Mizzlebrook and Andrew Macdonald, H.O., Nov. 27th 1826 ; Syme 18.— Mysie or Ma- rion Brown or Graham, H.O., March 13th 1827 ; Syme 152.— (2.) Cases in which objections were repel- led — G. Johnston and J. Fergu- son, Perth, Sept. 16th 1822 ; Shaw 78. — Archibald Ormand, H.C., Dec. 9th 1822; Shaw 92.— Chas. Mao- laren and others, H.O., Jan. 11th 1823; Shaw 92. — WiU. Wilson, Aberdeen, Sept. 19th 1823; Shaw 102. — Joseph Bogle and others, H.C., Nov. 22d 1824 ; Shaw 129.— Jas. Mitchell and John Sharp, H.C., July 11th 1825; Shaw 134.— Will. Thompson and others, H.C., Jan. 22dl827; Syme 56. A great many cases both ways wUl also be found in Hume ii. 370 to 374.— Alison ii. 414 to 425 and Bell's Notes 262, 263, 264. INDICTMENT. 491 listened to even then unless it be averred that enquiries List of were made in order to find the witness (1). And where WITNESSES. the accused has truly found the witness whom the pro- musTbe stated secutor is to call, notwithstanding errors in his desig- g^^om.^™^ nation, he has no ground of complaint whatever (2). The Where witness question whether there may not, in peculiar circum- iio^objeotio™o' stances, he a good objection to a witness on the ground '^^^'s^?^*^™ of incorrect designation, even after the jury are sworn, Question is one which has not yet absolutely arisen for decision, ^rttin oases But it is thought that, according to the analogy of the objection may , 1 ,. 1 1 °-' , , , not be compst- cases already mentioned, where a wrong name was held ent after jury a sufficient objection after the jury were sworn, cases ™°™- might occur in which a wrong designation of a witness would be the ground of a fatal objection, even if made after the jury were sworn. For it is evident that a wrong designation may as completely destroy the identity of the witness as a substantial error in his name. Suppose, for example, that the prosecutor gives in his list of wit- nesses " David Black, stonemason," residing at a place named. The accused's legal adviser accordingly enquires at the place after David Black, stonemason, and finds him. But at the trial a different man is put into ,the box, and it turns out that this person is Daniel Black, a weaver. Here there is direct prejudice to the accused. For he found the person described in the list of witnesses, and therefore he had no objection to state before the jury were sworn. But the prosecutor having misled the ac- cused as to the identity of his witness, could hardly fall back on the provision of the Act of Parliament, and maintain that the accused was bound to have stated his objection earlier, for in that ease it would be always in the power of the prosecutor when there was another person of the same name as the witness, liyiiig ^^ ^^^ 1 Alison ii. 426.— ii. 409, case of Notes 263. Bodgers there.— Geo. M'Kay, alias 2 Jas. Wortley and Jas. Green, Bain and others, Inyemess, April Dumfries, Sept. 24th 1828; Syme 13th 1839 ; 2 Swin. 344 and Bell's appendix p. 60. 492 INDICTMENT. List op ■withesses. Signature of list of wit- nesses. same place, to give notice of the wrong one, and then by appealing to the Act of Parliament to shut out all objection founded on his having misled the accused. Nor does the clause of the Act imply anything so plainly unjust, for it provides only that no objection founded on the accused's inability to find the witness, or his having been misled or deceived in his enquiries, shall be received after the jury is sworn. But in a case similar to that above supposed, the objection is not that the accused has been misled in enquiring, but that he has been misled by having a person pointed out to him by the indictment as the witness intended to be called, when, in fact, the prosecutor intends to call a different person altogether — a person about whom the accused never heard until he entered the witness box. The list of the witnesses is signed by the prosecutor in both modes of libelling (1). CITATION. Warraot. Warrant in will of letters. Clerk issues letters of diligence on indictment. Officek. Maoer, messen- ger, sbeiifE ofi&cer. Must be duly vested. The warrant for citation of the accused, and witnesses, and assize, is in criminal letters contained in the wOl In the case of indictments, the Clerk of Court, on exhi- bition of the indictment or a copy of it signed by the Crown agent, issues letters of diligence (2). The libel may be executed by a macer of Court or messenger-at-arms, or by a Sheriff or Steward's officer of the county where the execution takes place (3). But the officer must be duly vested in his office. The officer need not have the warrant with him at the time of cita- tion (4). 1 Hume ii. 249.— Alison ii. 318, 319. 2 Act 11 and 12 Vict c. 79 § 2. 3 Hume ii. 242.— AUson ii. 328.— Campbell 338.— Walter Crawford, Jedburgh, Sept. 31st 1822; Shaw 89.--Aot 11 and 12 Vict. c. 79, § 6. 4 Act 9 Geo. IV. u. 29, § 7.— Alison ii 327. CITATION. 493 The citation is performed by serving a full copy on Exbcction. the accused, witli a short notice of citation marked upon Service ou it, and signed by the officer and one witness (1). A "fuU f°™'?'^- „ , „ . ^ ' I^ull copy." copy is not held to include the will in Criminal , Letters which is always left out. The copy must, in all Lists of wit- cases, have the list of the witnesses, and a list of the aasiz?.*'' persons who are to be summoned to serve as jurors appended to it (2). "Where there are several panels, a Oopymustbe copy must be served on each separately. This has now eaXaocueed become law by inveterate practice, though not required by statute (3). The copy must be in all respects an copy must accurate copy of the record. In practice this is now be accurate. secured by their being both printed from the same types. A slight inaccuracy which cannot mislead such as call- ing the prosecutor " Her Majesty's Advocate, for Her Majesty's Advocate, for Her Majesty's interest," or omitting a letter, which does not alter the sense, and creates no real ambiguity — (e.g., brokn for broken) will not vitiate the service (4). And where the copy varied from the record by using the words " seriously punish- " able " instead of " severely punishable," an objection that the variation was fatal was repelled (5). Such variations, however, as omitting the prosecutor's surname, or giving a wrong name, or substituting Geo. III. for Greo. IV., or the like, are fatal (6). The copy must bear oopy must to be signed as the principal libel is signed, both as ^ig^^_ ^^ 1 Act 9 Geo. IV. c. 29 § 6.— Hume 1842 ; 1 Broun 201 and Bell's Notes u. 243.— Alison ii. 312. 224. 2 Act 1672 c. 16. — Hume ii. 247, 6 Hume ii. 246, case of Anderson 248.— Alison ii. 316. — Campbell in note 2. — Alison ii. 314, 315, and 340, 341. case of Ferguson there. — Campbell 3 Hume ii. 245.— Alison ii. 312. 341, 342.— Will. Shepperd, Perth, 4 Hume ii. 245.— Alison ii. 313 to Sept. 6th 1820 ; Shaw 39.— Mar- 316. — See also John Macoallum, In- garet Muir or Leith, Glasgow, Deo. verary, April 22d 1836 ; 1 Swin. 22d 1829 ; Shaw 214 and 5 Deas 207 and Bell's Notes 224. and Anderson 145.— See also Alex. 6 John Mabon and Edward Glasgow, Glasgow, April 13th 1829 ; Bhillinglaw, Jedburgh, April 4th Shaw 213. 494 CITATION. ExECCTioir. Exception in sheriff court libels. Jury list need not bear to be signed. Error in lists cannot be rectified except by service of whole libel of new. Citation must be per- sonal, if possible. regards the libel and inventories (1) and the list of wit- nesses (2), but it is sufficient if one representation of the signature be placed at the end of the copy of the libel, and one at the end of each inventory, appendix or list, without there being the representation of a signature on each page of the copy (3). As regards libels in the Sheriff Court, it is not indispensable that the list of wit- nesses should bear to be signed (4), though in practice it invariably does so. It is not necessary that the list of assize attached to the copy should bear to be signed (5). An error in the list of witnesses or assize cannot be rectified after service by serving the /list of new upon the accused. The service of the list must always take place at the same time as the service of the libel, and where there is any -fatal error in the lists, the only remedy is to serve a new libel (6). The citation must be personal, if possible. "Where this cannot be done, the copy is delivered to one of the family within the accused's house (7). Delivery to a 1 John Connor, Glasgow, Sept. 22d 1821 ; Shaw 57.— John Thomp- son and others, Stirling, April 21st 1823; Shaw 104. 2 Ann Somerville, H.C., June 4th 1821; Shaw 31.— Alex. Gunn alias Meniart, Inverness, April 16th 1819 ; Shaw 35.— David Gall, Perth, May 9th 1820; Shaw 39 John Cameron, H.O., Jan. 31st 1850 ; J. Shaw 295. 3 Campbell 342. — See also 1 Swin. 505, note. 4 Act of Adjournal, March 17th 1827. 5 Act 6 Geo. IV. o. 22, § 15.— Act of Adjournal, March 17th 1827. — Jas. Quin and John M'Caral, H.C., May 26th 1823 ; Shaw 99. 6 Hume ii. 370. — It is to be ob- served as regards errors in the copy, that the same remark applies as in the case of the principal libel. Every error is only fatal to that part of the indictment which it directly affects, and every mistake as regards a witness or juror only prevents that witness or juror from being caUed. And on the same principle, where an error affects the case of one accused only, others who are accused along with him cannot object to go to trial. , See Hume ii. 246, 247.— Alison ii. 315. 7 Act 1655 c. 33 Hume ii. 252, 253.— Alison ii. 328, 329. — Sir Archibald Alison states that if a party look up his house for the day when going to work, and leave the key with a neighbour, that it is good service at his dwelling-house if the copy be given to the neigh- bour (ii. 332.) The soundness of this may be doubted Campbell 839, 340. CITATION. 495 memter of the family or a servant not within the house ExEcn-noN. will not do (1). And where delivery was made to a Mode where corporal for his superior officer, hut not in the particular executou quarters of the officer, the execution was held to he ^possible, bad (2). If access cannot be gained, the copy is fastened ^ode where to the most patent door of the house (3). If the copy be ^""^^^ cannot left at a house which is not truly the dwelling of the accused, the citation is invalid (4). A citation at the citatio accused's dwelling-house will be bad, if he have left it dwelling bad permanently forty days previously (5). Where the cita- left forty Jays tion is by leaving a copy at the house, this must be fol- ^^^,f' .. lowed by public citation, by fixing a copy of the libel and tion. lists to the market cross of the burgh of the accused's residence (6). It will not do to cite at the cross and citation at afterwards at the dwelling (7). If the execution be at p^eedte d?a"'' the cross of any burgh but the true one, it will be in- tion at cross. valid (8). But a citation which would not be sufficient crots'rf wrong in itself, may be made so by the act of the accused, e.g., ^^^s^ f^**!- • n J ^ ^ ^ 'i-i-ii nj_i'ii Case of accused it he has named a place m his bail bond at which he stating place at may be cited (9). Citation at the cross for capital crimes ^J^^;^^^ ™*y must be executed between 8 and 12 of the day (10). Timeof cita- The Court has power on being applied to, to grant I,™ ap™ warrant to cite, altogether edictally, at the head burgh crimes. 1 Hume 11. 254. — Alison ii. 332. — Campbell 340. — Geo. Brown and Campbell 339. others, Glasgow, Oct. 11th 1820; 2 Hume ii. 253, case of Hay Shaw 63. there. 8 Hume ii. 255, case of M'Inlester ■ 3 Act 1555 c. 33. — Hume 11. 254. and others there. — Alison ii. 333. — — Alison ii. 332 ; Campbell 339. Campbell 340. — Alex. Boss, Inver- i Thos. King and A. Hood, ness, Spring Circuit 1837 ; 1 Swin. H.C., May 30th 1826 ; Shaw 134 493 note. 5 Hume ii. 259, and cases of 9 Alison ii. 330.— Will. Ward, Froodand others; and Johnston and Jedburgh, April 24th 1821; Shaw Wilson there. — Houston v. Ponton, 60. — Chas. Crocket, Perth, Sept. H.O., Feb. 25th 1828 ; Syme 332.— 28th 1864 ; 4 Irv. 656 and 37 Sc. John Laird, H.C. Feb. 19th 1838 ; Jur. 23.— Chas. Macdonald and 2 Swin. 26 and Bell's Notes 226. Bob. Young, H.C, Feb. 14th, May 6 Act 1556 c. 33.— Hume ii. 256. 30th, and July 12th 1831 ; Shaw —Alison 11. 333.— Campbell 339. 243 and Bell's Notes 226. 7 Hume ii. 255, and case of 10 Act 1587, o. 86.— Hume ii. 256. • M'Innes there.— Alison ii. 333. — —Alison ii. 334.— Campbell 340. 496 CITATION. Execution. Court may authorise edio- tal citation of vagrants or lawless per- sons, or persons abroad. Party may be cited both at last dwelling and edictally. Notice of DIET OF TRIAL. of the shires where they most resort, those who have no fixed dwelling, or those whose lawlessness makes it impossible for an officer to cite personally (1). Parties abroad may be cited on authority of the Court, by leaving copies at the market cross of Edinburgh, and pier and shore of Leith. It is competent to cite a party, of whom it is not known whether he be in the country, both at his last known dwelling, and also at Edinburgh cross and the pier and shore of Leith (2). The diet to which the accused is cited is stated in a short notice which is attached to the copy served upon the accused :^" Take notice, that you will have to com- " pear before the High Court of Justiciary, within the " Criminal Court-House of Edinburgh, to answer to the " criminal libel against you, to which this notice is at- " tached, on the 5th day of October one thousand eight " hundred, &c., at half-past nine o'clock forenoon. This " notice served on the day of one thousand " &c., by me." Here follows the signature of the of&cer with the word "macer" or "Sheriff-officer" appended, as the case may be, and the signature of "A. B.," "witness," without any designation (3). In Sheriff- Court cases, after naming the first diet, the notice adds — " and also if required, upon . day of " for the second diet, at o'clock forenoon." * This form is the only competent notice to appear for trial (4). And the form must be strictly followed (5). Where the of&cer's signature was written " John Mor- " rison Morrison," instead of " John Morrison, Macer," the citation was held bad (6). The officer is not required 1 Hume ii. 258. — Alison il. 335. —Campbell 340. 2 Humeii. 259, and case of Cress- well there. — Alison ii. 336.— Camp- VieU 340. 3 Act 9 Geo. IV., o. 29, § 6.— Oampell 341. 4 Jas. Chalmers or Chambers, Ayr, Sept. 14th 1836 ; 1 SWin. 288 and Bell's Notes 222. 5 Eob. Lacy, Perth, April 13th 1837 ; 1 Swin. 493. 6 Geo. Eodgers, H.C., Jan. 8th 1830 ; Bell's Notes 223 and 2 Sc. Jur. 144. Vide 615. CITATION. 497 to sign the libel or lists (1). Provided the notice is Notice of duly attached to the libel, the exact position of it is not triIl?*^ of much consequence. In two cases the objection that Poaition of the notice was placed at the end of the list of assize was ^°^''^ "°' °^ ^ consequence. repelled (2), and in another case it was held not to be a good objection that the notice was prefixed to the copy (3). The diet to which the accused is cited must, in all Induci^. cases to be tried by jury, be fifteen clear days after the ^if^en days, service of the libel (4). In Orkney and Shetland, citations for trial in the Supreme Court must be on forty days ^o^y days in inducicB (5). But this only applies where the service But party must takes place there. If a person is apprehended in Ork- Orkney.^''' ™ ney or Shetland, and brought to Edinburgh, aud there served with a libel, he is only entitled to the ordinary notice of fifteen days (6). Where persons abroad are Sixty days in- oHLGhfP "Wrlflffl edictally cited, sixty days inducim are allowed (7). party abroad. The officer who has cited the accused returns an exe- Execdtion op cution of citation (8). The execution must name the offence, but an elaborate description is not necessary. Elaborate state- In one case the objection that the execution in a charge "(ft";^°oess^CT^°* of uttering a forgery, omitted the words " as genuine," was repelled (9). Nor need the execution refer to any Aggravation aggravations of the offence which are libelled (] 0). specified. The execution is signed by the ofEicer with the word 1^^^^°^ 1 Act 9 Geo. IV. u. 29, § 6.— there. Will. "Watson, Aberdeen, April 21at 5 Act 1685 u. 43. — Campbell ii. 1829; Shiw218. 338. 2 David Gibb and others, H.C., 6 Jas. Arcus, H.C., July 26th Nov. 10th 1828; Shaw 201 and 1844; 2 Broun. 264. Bell's Notes 223. — Jas. Wilson, 7 Hume ii. 259.— Alison ii. 336. Perth, April 22d 1859 ; 3 Irv. 405 —Campbell 338. and 31 Sc. Jur. 454.— See also Mai- 8 Act 9 Geo. IV. c. 29 § 7. oolm Fraser, Perth, Sept. 1835; 9 John Campbell, Inverness, Bell's Notes 223. April 23d 1836; 1 Swin. 194 and 3 John M'Callum, Inverary, Bell's Notes 227. * April 22d 1836 ; 1 Swin. 207 and 10 Campbell 342. — Jas. Innes Bell's Notes 223. and others, H.O., March 15th 1826 ; i Hume ii. 257 and 258, and Shaw 151.— Peter Smith, Glasgow, cases of Eobertson dliat Neilson: Jan. 9th 1836; lSwin.27andBell's Harlay: and Kennedy alias Weir Notes 227. 2i 498 CITATION. Execution of citation. Prosecutor cannot be called on to produce execution. If he do pro- duce It, any- real defect fata.1. Faulty execu- tion cannot be withdrawn after date of first diet. Citation of witnesses and assize. Warrant to cite witnesses for accused. Witnesses may be cited on warrant in any part of Scot- land. Witnesses not in Scotland how compelled to attend. Officer need not have war- rant, and no witness neces- sary. " macer " or " Sheriff-of&cer " appended, as the case may- be, and it is also signed " A. B., witness," by the person who is present at the citation. Although there must be an execution, the prosecutor cannot be called on to produce it, unless sentence of fugitation, or forfeiture of bail bond is demanded, and he may prove the service by the oaths of the of&cer and witness (1). But if he do produce it, he cannot object to its being founded on, and any serious defect, such as omission to state the mode of service, will be fatal (2). A faulty execution cannot be withdrawn and another lodged after the diet to which the accused is cited, even though the diet have not been formally called (3). Want of space prevents any full statement in reference to the citation of witnesses and jurors. The warrant for citing the prosecutor's witnesses has been already noticed. For the citation of witnesses for the accused, a bill must be presented to the Court, which is passed as a matter of course, the signature of the Clerk of Court being suffi- cient in the Justiciary Court, and letters of exculpation are raised thereon (4). Both witnesses and jurors must be cited a reasonable period before the trial. Witnesses may be cited in any part of Scotland on the warrant of any Scottish Court (5), and witnesses in other parts of the United Kingdom may be effectually cited to at- tend (6), and if they fail to do so they may be appre- hended on letters of second diligence, endorsed by a superior judge of the division of the kingdom in which the apprehension takes place (7). In the citation of witnesses and jurors the officer does not require to be in possession of the warrant of cita- 3 E. Young and J. Morrison, H.C., June 3d 1822; Bhaw 67. 4 Act 11 and 12 Vic. c. 79, § 3. 5 Act 11 Geo. IV. andl WiU. IV. .;. 37, § 8. 6 Act 45 Geo. III. u. 92, § 3. 7 Act 54 Geo. III. 1. 186 § 3. 1 Act 9 Geo. IV. c. 29, § 7. 2 Campbell 342.— Thos. Soutar and others, Perth, Sept. 8th 1828 Shaw 209. — Frederick Paterson and Eob. Brown, March 12th 1829 Bell's Notes 226.— Peter Smith, Glasgow, Jan. 9th 1836; 1 Swin, 27 and Bell's Notes 226. LODGING PRODUCTIONS, DEFENCES, &c. 499 tion (1), and the citation does not require to be in pre- Citatwk of sence of a witness (2). A written execution is retained II™™''""' both as regards witnesses and jurors, which may be Exsoution of founded on in the event of witness or juror failing to <'i*^*'°''- appear, to entitle the Court to impose fines, and in the Court may case of witnesses, if cause be shown, to grant warrant m^it wtoess°to for apprehension and committal to prison (3). Where P™°'' '^ ^'' .'-. ... , ^ ^ ' lau to appear. a witness is committed m such circumstances he must remain in prison till the time of trial, unless the Court, on his application, see fit to liberate him on caution (4). Where the party can show by application, supported by Committal of an oath, that a witness is likely to abscond, the Court prevent Ws may grant warrant for apprehension and committal to absconding. prison, unless the witness shall find certain bail pre- scribed in the warrant (5). If a witness is in fear of Protection to arrest for civil debt, or the like, the Court wUl, on appli- JvU^diiigenoe. cation of the party, supported by an oath, grant him a protection to appear as a witness (6). LODGING PEODUCTIONS, DEFENCES, &c. The prosecutor must fulfil the obligation which lies Lodging peo- upon him by the indictment to have the articles, of the pR^EcuiioHf production of which he has there given notice, lodged " in due time " with the clerk of Court. The day Day before before the trial is fixed as the latest period for lodging ^^^^^ Shenff in the Sheriff Court (7). As regards the Supreme no precise rule Court, no precise limit can be fixed as represented by in Supreme 1 Act 9 Geo. IV. c. 29 § 7. 5 Hume ii. 375.— Alison ii. 398, 2 Act 11 Geo. IV. and 1 Will. IV. 399, 400. c. 37. § 7. 6 Hume ii. 376, 377.— Alison ii 3 Hume ii. 373.— Alison ii. 396, 400. 397. 7 Act of Adjournal, March 17tli 4 Alison ii. 397. 1827. 500 LODGING PEODUCTIONS, DEFENCES, &c. Lodging pro- ductions FOB PROSECUTION. True question is whether accused is pre- judiced. Article need not be in actual possession of clerk. If accused has opportunity for inspection, he cannot complain. Question whether article which has never been produced in clerk's hands may be used. the word " due " (1). The decisions on this question appear all to indicate that the question whether the accused has been prejudiced by the failure of the prose- cutor to lodge a production " in due time," is the true question in all such cases (2). It does not appear to have been held that the clerk of Court must have had the article in his actual possession before the trial, it being sufficient if it had been within his control ; as for example, by being in the Sheriffs ofi&ce (3). And if the parties are informed where the article is to be found, and are allowed inspection of it, they will not be heard to object on the technical ground that it was not in the clerk's hands (4). As regards the question whether an article of which notice has been given in the libel can be put in evidence by the prosecutor, although it has never been in the hands of the clerk at all, either actually or construc- tively, the decisions do not afford the means of giving a satisfactory answer. In one case an objection was repelled to the production of an article which had remained in the possession of one of the witnesses, and who produced it from his pocket at the trial (5). In another case the production was withdrawn (6). Both Baron Hume and Sir Archibald Alison give their opinion against the justice of the decision in the former 1 Hume ii. 388.— Alison ii. 593, 591. 2 Ann Kerr and others, H.C., March 2d 1857 ; 2 Irv. 608 and 29 So. Jnr. 274. — Thompson Aimers, Ayr, Sept. 24th 1867 ; 2 Irv. 725.— Alex. Watt, H.O., March 2l8t 1859 ; 3 Irv. 889. 3 Geo. Clarkson and Peter Mao- donald. May 8th 1829 ; Bell's Notes 276.— Henry Kerr, Dec. 26th 1833 ; Bell's Notes 276. 4 Jas. Dow and Jas. Dick, 1829 ; Bell's Notes 276. — See the case of Jane Macpherson or Dempster and others, H.C., Jan. 13th 1862 ; 4 Irv. 143 and 34 So. Jur. 140, where an English official was sent to Scot- land in charge of a " Sessions' book," which was libelled on as a produc- tion, but which he refused to give up. 5 Hume ii. 388, case of Muir in note 3.— Compare also the opinions of Lords Deas and Ardmillan in Alex. Watt, H.C., Mar. 21st 1859; 3 Irv. 389. 6 Jas. Pringle and Helen Scott, Jedburgh, Sept. 11th 1838 ; 2 Swin. 192 and Bell's Notes 275. LODGING PRODUCTIONS, DEFENCES, &c. 50] case (1). The argument that the accused can suffer no Lodgino pro- .j. -J- IT ii 1. • -J} J DUCTIONS FOR prejudice, if he does not choose to inquire tor and prosecution. demand inspection of the article hefore the trial, is plausible, but it is thought is not sound in principle, as applied to the case of an article which is never lodged at all. It may be true that he can suffer no prejudice from not having seen the article before the trial, but is it equally clear that justice may not suffer prejudice by the article being left in the power of the prosecutor during the progress of the trial, and until he sees fit to producfe it? Every principle of justice, seems to point to the necessity of having the articles which are to be used against the accused in Court and out of the control of the prosecutor before the trial com- mences. Although the accused may not care to see the productions before being called on to plead to the libel, the Court is bound to protect him from the risk of the articles which are to be produced against him being tampered with during the progress of the trial, and to secure that he shall have before him from the very com- mencement of the trial every article that is to be used against him. In some cases the mere lodging of the production is case of sealed of no advantage to the accused ; as for example, where fo^^ged! ^^™^ the production consists of a packet sealed up by the magistrate who had charge of the case. In such a case, the accused's remedy consists in an application to the Court to have the packet opened, and if no such appli- cation is made, he will not be permitted to raise any objection during the course of the trial (2). It also sometimes happens that the prosecutor, though produc- Articieof- ing an article, such as a Crown office letter book, refuses '"^i':\ ™'y o • ' partial inspeo- to allow inspection of any parts of it but those which tion permitted. have a bearing on the case. Where the Court are satis- 1 Hume ii. 388, note 3. — Alison 2 Hume ii. 388, case of Lyall in ii. 595. note 3. — Alison ii. 594. 502 Lodging pro- ductions FOR PROSECUTION. Witnesses, &C., FOR ACCUSED. List of excul- patory wit- nesses must be lodged and served on prosecutor. Special defences must be lodged. Notice of intended attack on character of injured party. LODGING PRODUCTIONS, DEFENCES, &C. fied with the grounds stated for siich a refusal, they will not order the custodier of the hook to give access to the whole of it, but, of course, will prevent the prosecutor from using any part of it to which access has not been permitted (1). If the accused propose 'to adduce witnesses who are not in the prosecutor's list, he must lodge a list of them, signed by himself or his procurator, with the clerk of Court, and have a double of the list served on the prosecutor (2). Further, if he proposes to make any special defence, he must, by the day before the trial, give in to the clerk of Court a statement of the defence in writing, signed by himself or his procurator (3). The following are defences which fall under the denomina- tion of special defences — Alibi, or a statement that the accused was not at the place of the offence when it was committed, but was at a different place (4), which must be specified (5) : Insanity at the time of the offence : Allegation that the offence was committed by another person named and designed (6) : Allegation of self-defence (7). The accused is also required, where he proposes to impeach the chastity of a woman said to have been injured (8), or to prove a quarrelsome dispo- sition against the individual alleged to have been 1 Joseph M. Wilson, H.O., June 8th 1837 i 2 Irv. 626 and 29 So. Jur. 561. — It certainly would be more fair in such a case to give some notice in the libel of the pai-ts of the book which are to be used in evidence. 2 Hume ii. 398, 399, referring to 1672, c. 16, and case of Lord Bargeny. — Alex. M'Broom and others, Dec. 29th 1831; Bell's Notes 284. — John Harper and others, H.C., Nov. 21st 1842; 1 Broun 441.— Thos. Mure, H.C., Nov. 22d 1858 ; 3 Irv. 280.— This rule is ap- plied to Sheriff Court practice by Act of Adjournal, dated March 17th 1827. 3 Act 20 Geo. IL c. 43 § 41.— Hume ii. 399.— Alison ii. 369.— Aoi of Adjournal, March 17th 1827. 4 Geo. Maclellan, H.C., Jan. 14th 1843; 1 Broun 510. 6 Francis Gairdner and others, July 18th 1838; 2 Swin. 180 and Bell's Notes 236. 6 Alex. Robertson, H.O^ Feb. 8th 1859 ; 3 Iry. 328. 7 Will. Younger, Deo. 8th 1828; Bell's Notes 236.— Will. Wright, Nov. 23d 1835; Bell's Notes 236. 8 Alison ii. 531, and case of M'Cartney and M'Oummings there. TRIAL. 503 injured (1), to give notice of his intention, thougli not Witkesses, in the form of a defence (2). accused. When the accused purposes to produce articles in Notice of evidence he gives notice of his intention to do so, and productions. he will not be permitted to use an article to the preju- dice of another who is accused along with him, if no notice has been given (3). But there seems to be no No specific very clearly defined rule in reference to the lodging of ™aging'° productions for the defence before the trial in the productions in ■'■ Dupreme Supreme Court (4). In the Sheriff Court, the accused Court, is required to lodge all articles upon which he proposes in sheriff to found the day before the trial, and any article not so fj'dg^ed""''' *'* lodged cannot be produced, except by permission of the Sheriff, granted on cause shown before the commence- ment of the trial (5). TRIAL. The trial of criminal offences takes place with open The Ooukt. doors, and it is illegal to exclude the public except in ^^^^ ™™' ^^ the case of indecent and unnatural offences, or in cases doors, except where the Court has been cleared in consequence of dis- oases, and orderly conduct or intimidation (6). Where the Court J^fred^°"fon- is cleared in order to try cases of an indecent descrip- sequence of tion, the doors of the Court should be opened before the jury return their verdict. It does not constitute an objection to the legality of a 1 Alison ii. 533.— Will. Brown, 3 Hugh H. M'Clure, H.C., March Jedburgh, Sept. 21st 1836 ; 1 Swin. 15th 1848 ; Ark. 448. 293 and Bell's Notes 294.— Jas. 4 Hume ii. 400. Irvine, Dumfries, April 23d 1838 ; 6 Act of Adjournal, March 17th 2 Swin. 109. 1827. 2 Geo. Forbes and others, Perth, 6 Act 1693 c. 27.— Finnie v. Gil- Oct. 11th 1858 ; 8 Irv. 186 and 31 mour, H.C., June 11th 1860 ; J So. Jur. 37.— Jas. Eeid and others, Shaw 368.— Orr v. M'Oallum, H.C. H.C., Deo. 9th 1861; 4 Irv. 124 June 26th 1855 ; 2 Irv. 183 and 27 and 34 So. Jur. 108. Sc. Jur. 600. 504 The Ooukt. Contempt op COUKT. All Courts can punish contempt. Party appear- ing Intoxicated or behaving rudely. Enclosed wit- ness 1 out. Attempt to concuss Court or impede or pervert justice. TRIAL. trial that it has extended beyond the end of the week into Sunday morning (1). Before noticing the mode of procedure in criminal trials, certain general rules as to the powers of Courts for maintaining order and purity of proceeding must be noticed. In the first place, aU Courts have the power to enforce order, and to punish acts of contempt committed against their authority and dignity (2). Thus, for ex- ample, if the accused (3), or a witness (4), or jury- man (5), appear in Court in a state of intoxication, or if any person behave in an insulting and contemptuous manner in Court (6), instant summary punishment may be inflicted. In the same way, if witnesses, after being inclosed under charge of the officers of Court, break out of the room where they are confined, they may be pun- ished by the Court (7). Certain other contempts of Court will be noticed in treating of evidence. Further, the Court may call any person to account who attempts to affect the course of justice by publishing one-sided statements of the case (8), or by destroying or deKvering up to the friends of the accused articles which have been called for by the public prosecutor (9), or by animadvert- 1 Alison ii. 643. — Harris Eosen- bcrg and Alithia Baniett or Kosen- berg, H.O., June 13th 1842; 1 Broun 367, note, and Bell's Notes 140. — Mr Bell states the matter as having been decided in the above case, but this is not consistent with Mr Broun's report. 2 Hume ii. 138. 3 Alex. Maclean and Malcolm M'Gillivray, Inverness, Sept. 25th 1838; 2 Swin. 185 and BeU's Notes 165. 4 John Allan, Glasgow, April 29th 1826; Shaw 172.— Jas. Wemyss, March 16th 1840; Bell's Notes 165. In this case the wii>- ness was so intoxicated as to be unable to come into Court, and was sentenced on evidence of this fact being led. 5 Elizabeth Tates, H.C., March 20th 1847 ; Ark. 238. 6 Eob. Clark or Williamson, Glasgow, Dec. 23d 1829; Shaw 215. 7 Thos. Innes and John M'Ewan, H.O., Feb. 28th 1831; Shaw 238 and Ball's Notes 165 and 3 Se. Jur. 336. 8 Hume ii. 139, 140, cases of Nairne and Ogilvy: Gilkie: and M'Ewan there. See also Hume i. 406.— Will. Watson and Alex. Mur- ray, H.C., Feb. 18th 1820; Shaw 9. 9 Hume ii. 140, case of Dun there. — Alex. Galloway, H.O., Dec. 4th 1839 ; 2 Swin. 465 and Bell's Notes 101 and 166. TRIAL. 505 ingupon the Court itself (1), or by granting false certifi- The Oourt. cates (2), or by whispering to a witness while under examination (3), or in any similar manner. In those cases of publication of statements, which do not appear to call for punishment, the Court may still interfere to prohibit such publication (4). A criminal diet is peremptory and cannot be called Calling diet. even of consent before the date fixed by the citation (5). cannot be ^ If it be not called or continued on the proper day the caiiedbefore instance falls (6). This rule applies whether the parti- and faiu'if not cular diet on which no calling or continuation takes tiluek/"'^' place be the original or an adiourned diet (7). The diet Diet continued ■■ , ■ -. ■, , • ,1 n T by entry in can only be contmued by an entry in the record under record. the hand of the Clerk of Court (8). But any one of the Diet may be ^ ^ ^ ^ ^ continued i Justiciary judges may continue diets in the Supreme without sitting Court without a formal sitting of Court (91 t -^ , , ,', .^ ° ^ ' Libel falls if If at the calling neither the prosecutor nor the accused neither party appear, the libel falls, and no sentence of fugitation can prosecutor pass (10). The prosecutor must be personally in Court, must be per- or the case cannot proceed, but he may account for his court. absence by deputy, and the Court, if they shall see fit, fJrIbsen°cT* may adjourn the diet (11). If no sufficient excuse be by deputy. given, the Court will desert the diet (12). Only the Lord Jla'/appir"^*^ Advocate is allowed to appear by his deputes (13). The by deputes. 1 Hume ii. 139, oases of Camp- 6 Hume ii. 263, 264. — Alison ii. bell : Naime and Ogilvy : and 343, 344. Johnston and Drummond there. — 7 Malonie v. Jeffrey, H.O., Jan. Alison i. 575.— Gilbert Macleod and 22d 1840 ; 2 Swin. 485 and Bell's "Will. Carse, H.C., Jan. 3d 1820 ; Notes 123 and 227. Shaw 3. 8 Hume ii. 263.— Alison 343, 344. 2 Jas. Nimmo and Jas. Forsyth, 9 Hume ii. 264. — Alison ii. 344. H.C., March 13th 1839 ; 2 Swin. 10 Hume ii. 265.— Alison ii. 344. 338 and Bell's Notes 165. 11 Hume ii. 266, 267, and cases of 3 Hume ii. 140, case of Smith Monteith and Wright : Gordon and there. others : Gillies: and Smith and 4 Bob. Emend, H.C., Dec. 7th others there Alison ii. 345, 346. 1829 ; Shaw 229.— Will. Haire, Feb. 12 Hume ii. 267, and case of Oou- 1829 { Bell's Notes 165. houn and Buntine there. 6 Hume ii. 263, and case of Wil- 13 Humeii. 267. — Alison ii, eon in note a. — Alison ii. 343. 346. 506 TRIAL. Calling diet. One person may be com- missioned to appear by a corporate body. One prosecutor may proceed though others fail to appear. If accused absent without explanation, fugitation pronounced. Forfeiture of bail-bond. Inferior Court can only forfeit bail bond. This may be declared after desertion of diet. Protection to accused from civil diligence. No objection pleadable in absence except to citation. sovereign, by special mandate, may appoint persons to proceed with prosecutions already raised, where the necessity arises (1). In the case of a prosecution by a corporate body, one person may, by warrant and com- mission of the whole prosecutors, appear for them aU (2). If there are several prosecutors, any one of of them having a distinct interest may go on with the prosecution, though the others fail to appear (3). In the Supreme Court, where the prosecutor appears at any diet, but the accused fails to appear after his name has been publicly called in Court and at the door of the Court, and no one appears for him and accounts satisfactorily for his absence, the trial cannot proceed (4), but sentence of fugitation is pronounced, by which he is deprived of all personal privilege or benefit by law (5). And the Court will require very strong evidence of inability to attend before they will refrain from pro- nouncing sentence of fugitation (6). If he is out on bail his bail-bond is also forfeited. A foreigner who has not been arrested, cannot be fugitated (7). An inferior Court cannot pronounce sentence of outlawry (8), but may declare forfeiture of the bail-bond. The forfeiture of the bail-bond may competently be declared after the deser- tion of the diet (9.) Where the accused cannot come to Court in consequence of civil diligence, the Court will grant him a protection to enable him to appear (10). No objections can be pleaded by the accused's procu- rator in his absence, except those applicable to the cita- 1 Hume ii. 268.— Alison ii 346, 347. 2 Hume ii. 268, case of Mathie there. — Alison ii. 347. 3 Hume ii. 268, 269.— Alison ii. 348. 4 Hume ii. 269. 6 Hume ii. 270, 271. — Alison ii. 349, 350. 6 Alison ii. 349, 350, and case of Davidson there. — Mary Eitohie or Alcook, Perth, April 23d 1857; 2 Irv. 615 and 29 Sc. Jur. 344. 7 Hume ii. 50. — ^ii. 57. 8 Hume ii. 69. 9 Morrison v. Monro, H.C., Dec. 16th 1854; 1 Irv. 599 and 27 So. Jur. 78. 10 Eob. Young, H.O., May 30th 1831 ; Shaw 243. TRIAL. 507 tion (1). But even this -will not be allowed if it be Oallino diet. shewn that the accused has left the kingdom, unless Mandate to a mandate from him be produced (2), or the Court be necessary"^ satisfied that he has not left permanently (3). The ^broad!"'™'^'^ accused's caiitioner cannot plead objections to the cita- Accused's tion in bar of sentence of fugitation (4). But he can do only objecUo so in bar of forfeiture of bail-bond (5) w**"^ °* At the calling of the diet, if there be cause for delay, adjouen- the diet may be continued to any fixed time, the Clerk '"'^''^• of Court recording the adjournment. But the adjourn- Must be to ment may not be sine die, but must be to a specified ^P^"^ ® day (6). This rule applies to all adjournments of Court, and it may be as well to mention here that it is in all cases in the discretion of the Court to grant or refuse delay. In some cases the absence of a material wit- Delay where ness (7) or the recent discovery of important evidence (8) ne^^'/absent ot have been held sufficient to justify a delay. The fact ^?w^ evidence that a witness has refused to be precognosced is not a Befusai of wit- sufficient ground for delay (9), and the Court wiU not nesstobepre- o J \ /' ^ _ cognosced grant delay on the ground of a witness being absent, if not sufficient the party himself has not used means to have him in fgiay. attendance (10). Delay is sometimes allowed to enable peiay to allow ■,. -lii-iii i inspection of the accused to inspect an article to which he has not productions. had previous access (11). 1 Hume ii. 271, 272. — Alison ii. 7 Gardner Niven, Dumfries, Sept. 352.— Bob. Lacy, Perth, AprU 13th 14th 1858 ; 3 Irv. 204. 1837 ; 1 Swin. 493. 8 Alex. Fletcher, H.O., March 2 John Forrest, Stirling, April 12th 1847 ; Ark. 232.— Will. Wal- 19th 1823; Shaw 103.— John Laird, laoe, Perth, Oct 12th 1855; 3 Irv. H.C., Feb. 19th 1838 ; 2 Swin. 26. 202 and 31 Sc. Jur. 31. 3 Jas. Anderson, July 18th 1834 ; 9 Alex. Fletcher, H.C., March Bell's Notes 229. 12th 1847 ; Ark. 232. 4 Will. Smith, Glasgow, Sept. 10 Donald Stewart and others, 15th 1836 ; 1 Swin. 301. Inverness, Sept 14th 1837 ; 1 Swin. 5 Will. Cook, H.O., July 16th 540. 1832 ; 6 Deas and Anderson 513 11 See Hume ii. 388, case of Muir and 4 So. Jur. 593.— H. M. Advocate, in note 3. — See also Jane Macpher- Petitioner v. Jas. Laird, H.C., July son or Dempster, H.O., Jan. 13th 18th 1838 ; 2 Swin. 178. 1862 ; 4 Irv. 143 and 34 Sc. Jur. 6 Hume ii. 275. — Sarah Ander- 140, where a motion for delay was son or Fraser and James Praser, in very special circumstances re- H.O., June Ist 1852 ; 1 Irv. 1 and fused. 24 Sc. Jur. 491 and 1 Stuart 806. 508 TRIAL. Dbsebtion op DIET. Dfisertiou is in descretion of Court Prosecutor moving deser- tion simplidter cannot again prosecute. Desertion of "libel" does not preclude new prosecu- tion. Desertion of diet competent till assize fiwom. AssiGi^iiia COCNSEL. Intekpkbter. Fleas in bab. Pupilarity and insanity. The prosecutor, if not prepared to go to trial, m ay- move the desertion of the diet pro loco et tempore, and this is usually done by the Court as a matter of course, hut it is not a privilege of the prosecutor, and is entirely in the discretion of the Court (1). Desertion of the diet simplidter does not necessatily prevent the accused from being tried on a new libel. If the prosecutor, instead of moving a desertion pro loco et tempore, move that the diet be deserted simplidter, he cannot prosecute again for that offence (2). An interlocutor which deserts " the " libel" on the prosecutor's motion, does not preclude the prosecutor from raising a new libel (3). The right to move the Court to desert the diet pro loco et tempore, does not cease until an assize has been sworn (4). On the diet being called, the Court if the accused is not represented by any legal adviser, appoint him coun- sel, or in the Sheriff Court, an agent, unless he expressly decline professional services (5). If he be deaf and dumb (6), or do not understand English (7), the Court appoint an interpreter. The first matter to be disposed of in a criminal trial is any plea in bar of trial which may be raised in behalf of the accused. Pupilarity and present insanity are pleadable in bar of trial. The Court in such a case allow 1 Hume ii. 276, and case of Archibald there, and cases of Macphie: and Edgar in note 1. — Alison ii. 98.— ii. 355, 356 ^John Boss and others, Glasgow, May 5th 1848 ; Ark. 481 (Lord Mackenzie's opinion). 2 Hume ii. 277, and case of Leslie there. — Alison ii. 357. 3 Stewart v. Mackenzie, Inver- ness, April 29th 1857; 2 Irv. 616 and 29 Sc. Jur. 345. 4 John Boss and others, Glas- gow, May 5th 1848; Ark. 481— John Martin, H.C., July 22d 1858; 3 Irv. 177. 6 Act 1587 c. 91.— Hume ii. 283, 284.— Alison ii. 370, 371 John Hannah and Hugh Higgins, Bum- fries, Sept. 17th 1836 ; 1 Swin. 289. In this case as no counsel appeared at the Circuit, the Court appointed the Sheriffs to defend. 6 Hume i. 45, case of Campbell in note 2. — David Smith, Perth, April 28th 1841 ; Bell's Kotes 231.— Don- ald Turner, Glasgow, Sept. 26th 1861 ; 4 Irv. 93. 7 Allan Maclean, Dec. 1st 1828; Shaw 202 and Bell's Notes 231.— Murdo Maokay and others, Jan. 31st and Feb. 21st 1831 ; BeU'sNotes 281. TRIAL. 509 a proof without impanelling a jury (1). In the event of Pleas m bar. pupilarity being proved, the Court will at once assoilzie Court allow a the accused. Where insanity is proved, the Court find a juiy"^' that the accused cannot be tried in respect thereof, and J^igmeiit ,,. , r- t -ft 1 -rx t 1 t where insanity order mm to be confined till the Eoyal pleasure regard- proved. ing him be known (2). Although no question as to the P°y/g'i™a^ ^ sanity of the accused be raised, the Court, if they see *» insanity, •11 • J • .• . 1 ,1 .7 though party cause, will, ex propria mom, investigate whether the decline to plead accused be a fit subject for trial or not (3). ^'" Besides the pleas of pupilarity and insanity, there are -^^^^ „f jurig. others which are not directly dependent upon the state diction. of the accused. There is, first, the plea that the Court has not jurisdiction to try the case. Another impor- Eea judicata. tant plea in bar of trial is that of res judicata. In the first place, as regards the libel : if the accused have Trial incom- been placed at the bar, on a particular libel, and that E^*™* °" '*^^' ■^ , . the same as libel has been found irrelevant by the Sheriff-Substitute, one previously it is incompetent to place him on his trial on a Ubel in levant.'"*" precisely the same words before the Sheriff Depute (4). Thoied an But the plea which oftenest occurs in practice is, that of ' " thoied an assize ;" that is, that the case now brought against the accused has already been brought to proof. 1 Hume ii. 143, 144, and cases of 1850 ; J. Shaw 462. — Thos. or Alex. Simpson : and Caldwell there, and Smith or Fizzard or Tizzard, H.C., cases of Hunter: Lyall: Essen: July 19th 1858; 3 Irv. 167.— Jo- Warrand : Smith : and Campbell hannis Manolatos alias Jean Mar- or Bruce in note 2 and *. — Alison rato aliai Mayatos, H.C., April 6th i. 659. 1864; 4 Irv. 485.— Thos. Aruot, 2 Act 20 and 21 Vict. 71, § 87.— ' H.C., June 6th 1864; 4 Irv. 629. The following instances (besides 3 Alison i. 659, 660.— John War- those referred to in Hume ii. 143, rand, H.C., Jan. 17th 1825 ; Shaw 144, and in Alison i. 660 and Bell's 130.— Will. Douglas, H.C., May Notes 4), may be referred to of a 28th 1827; Shaw 192.— John Bar- plea of insanity in bar of trial being clay, H.C., Feb. 4th 1833; Bell's raised. — Adam Sliming or Sliman, Notes 4. H.C., March 15th 1844; 2 Broun 4 Longmuir v. Baxter, B.C., 138.— Euphemia Lees, Jedburgh, Nov. 29th 1858; 3 Irv. 287 and Sept. 18th 1845 ; 2 Broun 484.— 31 Sc. Jur. 33. Peter Peanver, H.C., Nov. 16th 510 TRIAL. Pleas in bar. Previous trial must have been regular and truly for the same act. New offence emerging after previous trial bars plea of tholed on Case of trial stopped by unforeseen accident and cannot be tried again. If this be truly and sub- stantially the state of the fact, the accused is entitled to claim exemption from further trial (1). But the previous trial must have been substantially regular (2), and must plainly appear to have been for the same crime, depending upon the' same evidence, and not for what is truly another crime, although having some semblance of connection with the offence originally charged (3). On the other hand, the prosecutor cannot evade the objection of res judicata by merely calling the same facts by a different name (4). Further, if after the previous trial an event has oc- curred, which completely changes the character of the offence, (as for example where a trial for assault has taken place, and the party who was assaulted dies), the plea of res judicata will not be listened to in bar of a trial for murder or culpable homicide (5). Lastly, if the previous trial was stopped by some un- foreseen accident, such as the illness of the juryman (6), 1 Hume ii. 465, 466, and case of Hannali in note 1. — Alison ii. 615, 616.— Jas. Watt, H.G., Feb. 16th 1824 ; Shaw 113.— Bob. Hosie and others, H.O., May loth 1837; 1 Swin. 507 and Bell's Notes 302.— Sarah Anderson or Eraser and Jas. Fraser, H.C., July 12th 1852 ; 1 Irv. 66 and 24 Sc. Jur. 614. 2 Hume ii. 468, 469, and cases of Wallace : and Macrachan and other there. — Alison ii. 618. 3 Alison ii. 617, and case of Paterson there. — Galloway v. So- merville, Glasgow, Oct. 5th 1863 ; 4 Irv. 444 and 36 So. Jur. 185. 4 Himie ii. 466. — Alison ii. 615, 616. 5 John M'Neill, Perth, April 21at 1826; Shaw 162.— Isabella Cobb or Fairweather, Perth, April 14th, June 6th, and Nov. 21st 1836; 1 Swin. 176, 227 and 364, and Bell's Notes 299. — John Stevens, Glas- gow, Jan. 11th 1850 ; J. Shaw 287. — These cases over-rule John Eo- bertson, Glasgow, May 5th 1832 ; 5 Deas and Anderson 261 and Ali- son ii. 616. 6 Mary Elder or Smith, H.C., Feb. 5th and 12th 1827 ; Syme 71 and 76 and Shaw 176.— Margaret. Pringle, H.C., Nov. 11th 1830; Shaw 235 and Bell's Notes 300.— Jean Grant and others, H.O., July 12th 1838 ; 2 Swin. 165 and Bell's Notes 295. — John Leckie, Jan. 4ih 1841; Bell's Notes 295.— Donald Eoss, Inverness, Sept 29th 1842; 1 Broun 434 and Bell's Notes 295.— Hugh M'Namara, H.C., July 24th 1848; Ark. 521 — Elizabeth Leman or Wilson, H.O., Jan. 31st 1852 ; 1 Irv. 144. (In these last three cases » TRIAL. 511 or of the accused (1), or proved to he a nullity in con- pleas m bab. sequence of some defect for which the prosecutor was not responsible, such as a person having personated a jury- man or the like, the plea of res judicata will not he sus- tained (2). It remains only to notice one other plea in bar of trial, Plea of bargain , n • 1 ., T 1 ■. With prosecutor VIZ., the plea ot indemnity guaranteed by the prosecutor, for indemnity. If the public prosecutor caU a party as a witness, and re- ^g^o^^"^^ quire the judge to caution him, and to inform him that what pone, he cannot he says cannot be used against him, then undoubtedly if giving evi- he give evidence he cannot be prosecuted for the offence ^^^''^■ in reference to which he depones. And the libel in sup- The libel is the port of which he is called is the measure of his indem- indemnity. .nity, even though part of it have not been proceeded with at the trial at which he is a witness (3). The question Question whether the same result follows where there is no warn- whether every witness called ing and no special agreement between the prosecutor and by prosecutor the witness, is one about which there is a difference of '* ®^®™p ■ opinion (4). But, however this may be decided, it is ^"flj.gft^f**'^ essential that the subject matter of the first trial be sub- must be truly stantially the same as that in which the objection is promise of in- raised (5). And no unauthorised promise by a private demnUyby person or by an inferior Crown official will be held to tie persons does up the hands of the public prosecutor from trying the ^°^ ^""^ *"*' single juryman was balloted to fill now only illustrative, as such a fact the place of the juryman who was could not now vitiate a trial, it being taken ill). — Geo. Jackson, H.O., incompetent to make such an objec- Jan. 17th 1854 ; 1 Irv. 347. — ^WiU. tion after the jury are sworn. Act Smith, H.C., Dec. 22d 1853, and 6 Geo. IV. o. 22 § 16. See Timothy April 12th, 13th, 14th 1854 ; 1 Irv. Glennan and Chas. Bradly, H.O., 378. March 15th 1839 ; 2 Sc. Jur. 382. 1 Agnes Chambers or Macqueen 3 Alison ii. 453, 454. — Hare v. and Helen Henderson, H.C., July Wilson, H.C., Jan. 26th and Feb. 2d 25th 1849; J. Shaw 252.— See also 1829; Shaw 205, Syme 373, Bell's Marjory Maolntyre and Marjory Notes 260, and 1 Sc. Jur. 48 and 62. Lennox or Maolntyre, Glasgow, 1 Hume 11. 367, and case of Smith Sept. 25th 1829 ; Bell's Notes 300. and Brodie there.— See 4 Irv. Appx. 2Humeil.469, andcaseofMenzles Debate in Houseof Commons, there.— Alison ii. 618.— John Sharp, 5 Peter Jefferson and George H.C., Aug. 23d 1820; Shaw 19. The Forbes, Perth, April 22d 1848 ; Ark. case of a minor being on the jury is 464. 512 TRIAL. Plbas m BAR. person to whom the promise is made (1). Nor does the indemnity take effect until the party is actually used as a witness (2). Case of ao- It is not a good objection to proceedings that the ac- outTaw^^'"^ *" cused is an outlaw, the sentence of outlawry being de jure re-called by the accused being arraigned at the bar (3), and it being the interest of the accused to apply to be reponed before the trial, if he thinks himself preju- diced by the fact (4), as the Court will always repone in such circumstances (5). If no plea in bar of trial be sustained, the accused is asked whether he objects to the relevancy of the libel, and, if not, and if the Court are satisfied with the libel, an interlocutor of relevancy is pronounced (6). But if the Court consider the libel objectionable, they impugn jection stated. ^^^ although the prisoner's counsel decline to do so (7). In must be stated the Sheriff Court all objections to relevancy must be I'heriff " Stated at the first diet (8). Productions It is not Competent to look at the productions libelled looked at. ill Considering the relevancy (9). Where an objection to Striking out relevancy is sustained, it is sometimes obviated by allow- ing the prosecutor to strike out the objectionable passage or words. But this wiU not be permitted where the Eelevancy. Court may im- pugn libel, though no ob- 1 Arch. Miller and Susan Brown or Miller, H.O., Jan. 3d 1850; J. Shaw288— Alison ii. 454, 465, coutra. 2 Andrew Peebles and David Whitehead, Glasgow, Dec. 1833; Bell's Notes 261.— John Macdonald and others, Deo. 7th 1837; Bell's Notes 261. 3 Arch. Miller and Susan Brown or Miller, H.O., Jan. 3d 1850 ; J. Shaw 288. 4 Jas. Wilson, H.C, May Blst 1830 ; Shaw 231 and Bell's Notes 228. 6 Michael Hinohy, H.C, July 18th and 20th 1864; 4Irv.559. 6 Act 11 and 12 Vict. c. 79 § 9. 7 Eiohard Smith, July 16th 1829; BeM Notes 234.— Jas. M'Kechnie, Stirling, June 18th 1832, and H.O., July 14th 1832 ; Bell's Notes 234— Geo. Browai, H.C, July 3d 1839 ; 2 Swin. 394 and Bell's Notes 234, (Lord Justice Clerk Boyle's opi- nion.)— Thos. Brown Harper, Jan. 8th 1840 ; Bell's Notes 234.— Sam. Michael, H.O., Deo. 26th 1842; 1 Broun 472.— John Eae, H.C, May 16th 1854 ; 1 Irv. 472 (Lord Justice General Macneil's opinion). 8 Smith V. Lothian, H.C, March 21st 1862 ; 4 Irv. 170 and 34 Sc. Jur. 467. 9 Jas. Paton, Ayr, Sept. 22dl858; 3 Irv. 208 (Lord Ardmillan's opi- niou.) TRIAL. 513 effect of the alteration is to constitute a truly different Belevancy. charge from that originally libelled (1). The law appears No alteration not to be very clearly fixed as to the competency oi such alters the alterations being made without the consent of the ac- ^gafbie^^'" cused (2). In some cases the Court allowed an altera- Question tion although the accused objected (3). In a later case, ^rikingout though the Court refused to permit the alteration pro- TEIAL. GrENERAL BDLES AS TO PROOF. Proof must be in presence of Court, accused and assize. Jury inspecting document. Laying foun- dation. Not competent to discredit witness ■with- out having cross examined him. throws upon him the burden of showing that he did not do so theftuously (1). The same holds where the offence consists in doing what it is illegal to do without a special qualification. The act being proved, it lies with the accused to show that he possessed the qualifica^ tion (2). All proof must be led in presence of the Court, ac- cused and assize (3). It is not a competent proceeding to read over to the jury the sworn depositions of witnesses taken upon a former occasion (4). The witnesses, if alive, must in every case themselves appear and depone (5). Further, it is incompetent for judge or jury to rely upon private knowledge of a fact (6). It has even been held in more than one case that a jury ought not to be allowed to inspect documents to satisfy themselves as to handwriting (7). It is a general rule where it is proposed to prove facts tending to discredit the witness under examination, or facts which the witness is best qualified to speak to, that a foundation must be laid by interrogating the witness on the matter (8). The rule does not apply to proof by witnesses only. It is incompetent to found upon a do- cument as discrediting a witness, unless he be examined 1 Dickson i. § 14 2 Dickson i. § 10. — Many statutes expressly throw the burden on the accused. 3 Hume ii. 404, 405. — Alison ii. S48. 4 Hume ii. 406. 6 Hume ii. 406. As to the pro- cedure where a jurymkn is taken ill and another ballotted, see Donald Boss, Inverness, Sept. 29th 1842 ; 1 Broun 434 and Bell's Notes 287. 6 Morrison v. Monro, H.C., Deo. 16th 1854 i 1 Irv. 599 and 27 So. Jur. 78. 7 John G. Robertson, H.C , Feb. 19th 1849; J. Shaw 186.— Will. M'Gall, H.C, March 13th 1849 ; J. Shaw 194. — These cases seem not to have been before the Court in the Circuit case of Rob. M. Beveridge, Ayr, Oct 6th 1860; 3 Irv. 625, Where it was intimated that the jury might look at the documents and judge for themselves. 8 Hume ii. 399, case of Stewart in note 4. — Hugh M'Hardie, Glasgow, April 30th 1834; Bell's Notes 288. — JohnG.Eobertson and others, H.O. Mar. 24th 1842 ; 1 Broun 162 and Bell's Notes 286. TRIAL. 535 regarding it (1). The prosecutor is in a position of some General difficulty as regards contradicting evidence for the de- proof. fence, as it has nevei; been held that he can, in any case, prosecutor lead a proof in replication. Accordingly, in one case g^o'uf'ator^ the prosecutor was allowed to ask a Crown witness witness. whether a witness for the defence had made a certain statement (2). The rule requiring a foundation to be laid is only ap- Euie as to lay- plied to matters which the parties ought to have known onty applied to and spontaneously propose to prove. For example, if matters imown • tilt 1J1 • 10.6 pflfrty* it come out " suddenly and unawares that a previous witness on a certain occasion expressed malice against the accused, it is competent to ask whether the witness in the box ever heard the previous witness say anything else indicating malice (3). In a criminal ease the accused cannot be put on oath, pakolb nor can the question be referred to his oath (4). And ^g°°.g^gg ^^ although the prosecutor may be a competent witness (5) oath incom- it is not competent to refer the case to his oath (6). ^ As regards the order of leading parole proof, it may be Absence of observed that where the best evidence cannot be led, its must^bi*™"* absence must be accounted for before the secondary accounted for evidence will be allowed (7). In exai^lning witnesses, ary allowed. the first requisite is, that the ques^^ons put be relevant. ^lusfbT" But the Court will not interfere, and particularly will relevant. not interfere with interrogation in cross, merely because the relevancy of the questions is not at first sight ap- 1 Jas. StevenB, Mar. 15tli 1839; 1 Irv. 603.— Blair v. Mitchell, H.O., 2 Swin. 342 and Bell's Notes 273. July 9tli 1864 ; 4 Irv. 545 and 36 So. 2 Will. Common, H.C, Deo. 10th Jur. 714. 1860 ; 3 Irv. 632 and 33 Sc. Jur. 68. 6 See Paul and others v. Barclay 3 Robertson v. Mackenzie, Inver- and Ourle, H.O., Nov. 24th 1856 ; 2 ness, April 26th 1856 ; 2 Irv. 411 Irv. 637 and 29 Sc. Jur. 27. and 28 Sc. Jur. 388. 6 Dickson ii. § 1563. — Hume ii. 4 Dickson ii. §§ 1396, 1548 403.— Alison ii. 623.— Cameron v. Hume ii. 336.— Alison ii. 586, 587.— Paul, H.C., Dec. 5th 1863 ; 1 Irv. 316 Duncan v. Bamsay, Aberdeen, April and 26 So. Jur. 148. 15th 1853; I Irv. 208.— Stevenson 7John S.Montgomery, Aberdeen, V. Scott, Jedburgh, Sept. 8th 1854; Sept. 25th 1856; 2 Irv. 222. 536 TRIAL. Fasole PROOF. Exceptions to rule that wit- nesses must speak to facts only. Scientific evidence. parent. Por it may be necessary to lead up to that which is relevant by preliminary questions, and in cross examination much latitude must be allowed in testing the witness' capacity and credibility (1). But oppressive examination will be checked by the Court. Although, as a rule, witnesses must speak to facts only, and not to inferences, certain exceptions are ad- mitted. Where a witness has deponed to hearing cries, he may be asked whether he thought they were the cries of a male, or a female, or a child. Such an inference is indeed matter of opinion, but it is equal to fact from the almost absolute certainty with which any ordinary person can distinguish between one cry and another. But the principal exception to the rule is where skilled witnesses are asked their opinion on the facts of a case. Such wit- nesses are in the position of assessors, to aid the jury in making inferences from facts, where the inference is one requiring special information. Thus the question whether injuries were the cause of death or caused danger to life, or were inflicted with sharp or blunt instruments, or the questioQ whether a certain symptom indicated the pres- ence of poison, are cases in which opinions are received. And a similar case is that of persons who are familiar with the writing of an individual being asked to say whether he wrote a certain document. Care is taken to confine such investigations within proper limits. Thus, in a case of rape, where it was proposed to ask a witness whether itwas possible for the accused to have committed rape in the circumstances detailed, the question was dis- allowed as not involving professional opinion (2). Again, where a doctor who had not examined the accused, was asked what opinion he had formed from the evidence as to the accused's state of mind, the question was objected to, and was withdrawn (3). 1 Dickson ii. § 2023. 2 Eob. Henderson, H.O., Nov. 10th 1836 ; 1 Snin. 316. 3 Malcolm M'Leod, Inverness, April 14th 1838; 2 Swin. 88 and BeU's l^otes 269. TRIAL. 537 The proof must be confined to those facts which are Parole ■within the scope of the libel and the defences. But this ^"°°^" does not mean that no fact is to be proved which has not Proof been specifically set forth. It means only that the proof f °°t^^fty„ is not to be extended generally to events which happened the libei and before the crime libelled, or are not part of the res gestce of it, or to circumstances which, according to the rules of libelling, the prosecutor should have set forth in the libel, and the accused in special defences. As regards proof of an- proof of facts anterior to the time of the crime charged, lateral "circuin- it is of course very much a question of circumstances stances. whether the proof is competent. For example, it has been held, in a case of an election riot, that it is not com- petent to prove in exculpation, what happened in an earlier part of the day, the indictment referring only to what took place in an after part of the day (1). Difficult questions sometimes occur as to the proving of facts not immediately connected with a case, but which may throw light upon the direct evidence. The question whether insanity of relations of the accused may be proved, has been decided in the negative (2). In one case where the charge was child murder, and the body found had six toes on each foot, the prosecutor was allowed to ask a medical man whether any of the accused's family had extra toes or fingers (3). In a case of threatening to accuse a clergyman of immorality, it was held competent to prove that the subject matter of -the accusation had been currently reported as true before the threats were made (4). 1 Donald Stewart and others, In- 3 Elizabeth Laird or Stewart, Ayr, vemess, Sept. 14th 1837; 1 Swin. April 26th 1848; Ark. 471. Such a 640 and Bell's Notes 91. question as the above must always 2 Malcolm M'Leod, Inverness, be determined according to the April 14th 1838; 2 Swin. 88 and special circumstances, and there Bell's Notes 5. — Jas. Gibson, H.O., may be room to doubt whether such Dec. 23d 1844; 2 Broun 332. — Jas. evidence should be admitted at all. Brown and Geo. Brown, jun., Perth, i Euphemia Eobertson and others, April 25th 1855; 2 Irv. 154.— Ann Perth, April 22d 1842 ; 1 Broun 295 M'Que, H.C., March 12th 1860 ; 3 and Bell's Notes 290. Irv. 578. 538 TRIAL. Parole PROOF. All circum- stances of res gestse are evidence. Difficult ques- tions as to proving facts not set forth in Ubel. Case of a fact not duly libel- led being still admissible as evidence. Proof of re- moval of goods in flre- raising, with- out notice. Prosecutormay prove circum- stances which indicate motive of offence. All circumstances which formed part of the res gestce may he proved. But there are cases in which difficult questions arise as to the competency of proving facts without notice in the libel. For example, in cases of seditious conspiracy, the prosecutor must set forth full details of the conspiracy, including statements of the import of speeches made ; and yet it might he im- possible to detail all the acts by which the guilt of the conspirators was betrayed, and it seems, therefore, that if the prosecutor set forth the proceedings with such par- ticularity as to entitle him to an interlocutor of relevancy, he cannot be prevented from proving incidents additional to those specified (1). The case also sometimes occurs, of an incident which, though not libelled correctly, being nevertheless admissible as a circumstance of evidence. Thus, where an article was libelled on as stolen from a chest, whereas it came out in evidence that it was taken from another place close by, proof was allowed that it was found in the accused's possession, as a circumstance in the proof of the theft of the other articles libelled (2). Again, in a charge of fire-raising, proof was allowed (without notice) of the removal of goods before the fire, as evidence of the fire-raising, and the intent to defraud (3). The prosecutor may prove circumstances which supply a motive for the offence. In cases of fraudulent fire- raising, it is competent to prove that the accused's affairs were embarrassed (4). And, in a case of murder of a wife, it has been held competent to prove criminal inti- macy between the accused and a servant, and promises of marriage made to her (5). 1 Dickson i. § 36. — Jas. Gum- ming and others, H.C., Nov. 7th 1848; J. Shawl?. 2 Jas. Crardiner, Glasgow, Sept. 30th 1837; 1 Swin. 548 and Bell's Notes 218. 3 Will. M'Oreadie, Ayr, Oct. 2d 1862 : 4 Irv. 214 and 35 So. Jur. 3. 4 Harris Rosenberg and Alithia Bamett or Eosenberg, Aberdeen, April 16th 1842; 1 Broun 266 and Bell's Notes 293. B EdwardW.Pritchard,fl;.0.,July 3d and 7th 1865 ; 5 Irv. 88. TRIAL. 539 Facts indicating malice may be proved for a period of Parole a fortnight prior to the offence without notice (1), And statements indicating malice, uttered within a short time ing maiioemay after the offence, maybe also proved (2). "Where the pro- ^^™etime of secutor proposes to prove malice at an earlier period, and commencement where he has set forth a certain time as the commence- stated, proof ment of the malice, he may not extend his proof further farther back. back (3). But where malice is alleged generally, he may Where malice go back a considerable time (4), even though no malice be rally consider- proved between the remote period and the offence (5). aUoJed.*"'^* And the prosecutor may prove malice, without notice. Malice may be ^ •' ^ ' / proved without where the accused makes a denial of malice part of his notice, where ^/n\ accused raises case {O). tlie question. The prosecutor may prove acts committed by the ac- Pnor acts cused prior to the crime under investigation, in proof of '"ndjcating ^ o ' jr guilty know- guilty knowledge. Thus, in cases of uttering coin, or flash ledge. notes, previous attempts are elements of proof (7). And it has been found that the prosecutor is entitled to prove previous attempts, without notice, for the above pur- pose (8). The character of the accused may also form the subject fh^^aocuse°d. 1 Dickson i. § 36 and note o. — 2 John Stewart, H.C., June 4th Alison i. 11 and case of Divine there. 1865 ; 2 Irv. 166 and 27 So. Jur. 408- — ii. 630 — John G-. Robertson and (This point is not mentioned in the others,H:.C.,March24thl842; IBroun rubrics). 152, observation by Lord Justice 3 Alison i. 11, case of M'Lellan Clerk Hope on page 173. — See also there. Bob. Emond, Feb. 8th 1830 ; Bell's 4 Hume ii. 238, observations on Notes 289 and 293. — Arthur Woods case of Eae in note 1. — Alison ii. and Henrietta Young or Woods, 630. H.C., Feb. 25th 1839 ; 2 Swiil. 323 5 David Eosa, Inverness, Sept. and Bell's Notes 289 and 291. In one 21st and 22d 1859; 3 Irv. 434.— case, Alex. Millar, H.C., March 18th Edwin T. Salt, H.O., Feb. 15th and 1837 ; 1 Swin. 483 and Bell's Notes 16th 1860 ; 3 Irv. 549. 79, threats uttered six weeks before 6 Will. Wright, H.C., Nov. 23d the offence were allowed to be 1835; 1 Swin. 6 and Bell's Notes proved, on a statement that the other 293. evidence would connect the threats 7 Dickson i. § 36. with the offence. This, itis thought, 8 Jas. Bitchie and And. Morren was going too far. Notice should H.C., Nov. 29th 1841 ; 2 Swin. S81 have been given in the libel. and Bell's Notes 60. 540 TRIAL. Parole PROOF. Proof in de- fence. Prosecutor may not prove bad character, un- less accused raise the ques- tion of char- acter. Character and disposition of witness. General ques- tion allowed in case of injured party. Case of injuries to women. of inquiry. Good character may always be proved in de- fence (1), but the prosecutor may not attack the accused's character, except where the latter has attempted to set it up (2). A conviction of theft has been held bad where proof was led that the accused was "habit " and repute a resetter" »(3). As regards attacking the character of witnesses, a distinction is made in cases of personal injury between the injured party and aU the other witnesses. The accused may, if notice be given (4), prove that the injured party was quarrel- some (5), but he may not prove acts of violence com- mitted by him (6). The prosecutor may put a general question as to the peaceable disposition of the injured person (7), or as to the respectability of females alleged to have been abused (8). In cases of injuries to women, the accused, if he have given notice, may cross-examine the woman as to conduct, and may bring witnesses to prove bad repute against her (9). But such evidence must relate to the period immediately preceding the offence. Previous bad character cannot be proved un- less it be connected with an evil repute at the time (10). 1 Dickson i. § 30.— Hume ii. 413. — Alison ii. 629, 630. — Several cases are also mentioned in Bell's Notes 294. 2 Dickson i. § 80.— The charge of being habit and repute a thief forms truly no exception to this rule, for it is a substantive aggra- vation, and notice must be given in the libel. 3 Alison ii. 629. — Bums v. Hart and Young, H.C., Dec. 10th 1856; 2 Irv. 571 and 29 So. Jur. 93. In this case Baron Hume's Doctrine on this point (i. 114), was declared to have been reprobated for forty years. 4 Alison ii. 533.— Will. Brown, Jedburgh, Sept 21st 1836; 1 Swin. 293 and Bell's Notes 294. 6 Geo. Blair, Dumfries, April 25th 1836 ; Bell's Notes 294.— Jaa. Irving, Dumfries, April 23d 1838 ; 2 Swin. 109 and Bell's Notes 294. 6 Case of Irving, supra. — -Mar- garet Shiells or Fletaher, H.C., Nov. 7th 1846 ; Ark. 171. 7 Bob. Porteous, Nov. 10th 1841; Bell's Notes 293. 8 Malcolm Maclean, May 11th 1829; Bells Notes 294.— Duncan M'Millan, Jan. 9th 1833; BeU's Notes 293. — ^Robertson Edney, Nov. 8th 1833; Bell's Notes 293.^ohn M'Millan, H.C., Deo. 28th 1846; Ark. 209. 9 Dickson i. § 29.— Hume ii. 413. —Alison ii. 530, '531.— ii. 630. 10 Jas. Eeid.and others, H.C, Dec. 9th 1861; 4 Irv. 124 and 34 So. Jut. 108. TEIAL. 541 It has never been expressly decided that particular acts parole of unchastity can he proved (1). But the accused may — j-ij.j-1 TiTi.'i 111 Bad character prove that the woman had voluntarily surrendered her- m^st be oon- seK to him shortly before (2). It is a question of cir- y^e^^f^genoe. cumstances v?hether evidence of subsequent conduct is Question competent. Proof was allowed of an averment that on tiouiar^acte'can the day of the alleged offence, the woman had been guilty ^iMonduit of unchastity. But general proof of subsequent character with accused T Ti 1 /ns T-i ■ T /. .I • . • • shortly before was disallowed (3). Evidence of this sort is permis- may be proved, sible only in the case of the injured party. The general ^"o'^f^g'^^utse- character of other witnesses cannot be inquired into, quent conduct, except where it is alleged to be so degraded as to affect character of credibility (4). Thus the prosecutor cannot ask whether i*o^p"tenr' a witness is an inoffensive person, there being no indi- cation of an intention to show the contrary. (6). And the prosecutor cannot ask a witness as to the general character of an exculpatory witness (6). On the other hand, the accused may not prove the bad char- acter of a companion of the injured party in a rape case (7). It has been held incompetent to ask a wit- ness whether from her knowledge of two youthful wit- nesses she could " place any reliance on their recoUec- "tion," or whether they were "veracious boys" (8). 1 David AUan, Glasgow, Deo. pear that the prosecutor had tried 27th 1842 ; 1 Broun 500. — But see to prove good character. Donald M'Farlane, Perth, April 4 Dickson ii. § 1799. 26th 1834 ; 6 Sc. Jur. 321.— Walter 5 Kob. Porteous. Nov. 10th Blair, Glasgow, May 4th 1844; 2 1841: Bell's Notes 293. Broun 167.— See also Hume i. 304, 6 Thos. Wight, H.O., Feb. 22d note 1, observations on the case of 1836 : 1 Swin. 47 and Bell's Notes Wilson there, and the case of Eeid 254. — See also Geo. Blair, Dum- in the previous note. Lord Justice fries, April 1836 ; Bell's Notes 254. Clerk Inglis' opinion. 7 J as. Webster and others, Perth, 2 Walter Blair, Glasgow, May April 20th 1847 ; Axk. 269. 4th 1844 ; 2 Broun 167. 8 Thos. Galloway and Peter 3 Hugh Leitch, Inverary, April Galloway, H.C., June 27th 1836 ; 1 23d 1838 ; 2 Swin. 112 and Bell's Swin. 232 and Bell's Notes 254. Notes 84. The same course seems to Such an examination was allowed have teen followed in Jas. Wilson, in the case of a young child said to July 13th and 16th 1813 ; Hume i. have been ravished, her mother 304, note 1, but there it would ap- having been asked whether she was 542 TRIAL. Parole PROOF. But cross- examination to affect credi- bility compe- tent Extract con- viction tbe only proof per- missible tbat witness guilty of a crime. Witness may be asked whether he is deponing Tinder fear. Where witness cross-ex- amined as to former life, not competent to contradict him. Witness may be asked whether he ever made a different statement and proof be led that he did so, except as re- gards precog- nition. But it is competent to cross-examine witnesses as to matters affecting credibility. Such questions as whether a witness stands indicted for, or has been convicted of, a crime, are competent. It would appear also to be a competent inquiry, whether a witness is a prostitute (1). But, when the question of credibility only is involved, the Court will stop all examination as to offences not inferring depravity (2). It is incompetent to adduce any proof that a witness has been guilty of a crime, except an extract conviction (3). A witness may be asked whether he is giving his testimony under pressure ; as, for example, whether he is under fear caused by threats of the friends of the accused (4). As a general rule, where a witness is asked as to matters beyond the res gesice, and connected with his former life, it is not com- petent to adduce evidence to contradict him (5). But a witness may be asked whether he has on any specified occasion made a statement different from the evidence given by him, and if he deny it, the fact may be proved (6). But this does not apply to statements made on precognition (7). A witness cannot be asked whether what he has deponed is what he stated when precognosced in order to confirm his testimony (8). veracious. — John Buchan Nov. 25th 1833 ; Bell's Notes 293.— See also Malcolm Maclean, May 11th 1829 ; Bell's Notes 294. 1 Jas. Webster and others, Perth, April 30tb 1847 ; Ark. 269.' 2 Dickson ii. § 1794. 3 Dickson ii. § 1795. 4 Will. Clark and Bob. Greig, Aberdeen, April 14th 1842 ; 1 Broun 250 and Bell's Notes 268.— Will. Brown and Jas. Henderson, July 9th 1832 ; Bell's Notes 267. 5 Jas.Beid send others, H.O., Dec. 9th 1861 ; 4 Irv. 124 and 34 8o. Jiir. 108. 6 Act 15 Viot c. 27 § 3. 7 Hugh O'Donnell and Bernard Maguire, Glasgow, Sept. 27th 1855 ; 2 Irv. 236. See also observations by Lord Justice Clerk Inglis and, Lord Neaves in Emslie v. Alex- ander, Deo. 20th 1862; 1 Macph. 209 and 35 Sc. Jur. 155: Ques- tions put in cross in reference to the precognition sometimes pass without objection, but it cannot be said that there is any practice coun- tenancing such a proceeding. 8 John G. Eobertsou and others, H.C., Mar. 24th and 26th 1842; 1 Broun 152 (this point at p. 190) and Bell's Notes 272. TRIAL. 543 It is competent to cross-examine a witness in refer- Parole ence to statements made in a judicial declaration (1). It is a general rule that hearsay evidence is inadmis- may°be^orosBed sihle (2). It is of course competent to prove such a fact ^g^Jj^ a' as that a person asked for an article in a shop, but it is declaration, not competent to go on and prove statements made by inadmissible, the person (3). But there are many special exceptions to the rule. Statements made by the accused may be proved, hearsay of although not-reduced to writing. Evidence of what the statements by accused said before the offence is competent, if it throw light upon it, as, for example, where he has threatened to commit it. And it has even been held competent, in a case of perjury, to prove a previous deposition by the accused, as an element in the proof of the falsehood of theoathwhichforms the subject of trial (4). Statements statements by made by the accused as a witness, in exculpation of accused as a another person charged with the same offence, may be proved (5). The accused's statements at the time of the offence, or „, . , . ' statements at to officials or to prisoners confined along with him, may the time, or to be proved (6). And the fact "that the accused on being charged remained sQent, may be proved as being a statement in a negative sense (7). Although state- Accused re- ofBcials, &a. 1 Agnes Wilson and others, Glas- 6 Dickson ii. §§ 1455, 1460, and gow, Sept 12th 1860 ; 3 Irv. 623. note 3, § 1461— Hume ii. 333, 334, 2 Dickson i. § 84. — Hume i. 406, 335 passim, — Alison ii. 536 to 538 407.— Alison ii. 610. pass™.— ii. 579, 580, 681, 684, 585. 3 Mary Elder or Smith, H.O., The following may serve as illus- Feb. 19th 1827 ; Syme 92. (This tratious : Christian Kennedy or point occurs at p. 121). Connor, Nov. 9th 1829 ; Bell's Notes 4 Thos. Bauohop, H.O., July 6th 243.— Eob. Emond, Feb. 8th 1830 ; 1840 J 2 Swin. 613 and Bell's Notes BeU'a Notes 243.-Will. Wright, 100. But where statements made H.C., Nov. 23d 1836 ; 1 Swin. 6 and some time before the offence are to Bell's Notes 244. — Eob. Brown, Ayr, be proved, notice must be giveh in Sept. 1833 ; Bell's Notes 244.— Jas. the libel. John G. Eobertson and Miller, Glasgow, Jan. 1837 ; Bell's others, H.C., Mar. 24th 1842; 1 Broun Notes 244. 152. — See also case of Bauchop 7 Dickson ii. § 1482. — David sujira, indictment. Alexander, Ayr, April 27th 1838 ; 2 6 Elizabeth Edmiston, H.C., Jan. Swin. 110 and Bell's Notes 289. 16th 1866; 1 So. Law Eep. 107. maining silent when charged 544 Pakole PROOF. Extorted statements not admissible. Statement heard by "ii'opping. Case of state- ments by an alleged maniac. TRIAL. ments made at the time are admissible, even though made in answer to questions put, or remarks'made by the officer apprehending him (1), statements obtained by- continued interrogation by official persons are not admissible (2). And the same holds if the witness has tried to entrap the prisoner (3), or has made a false statement to him (4). It is not a good objection that the witness overheard statements by eavesdropping (5). But if an official were to procure a fellow-prisoner to in- veigle the accused into conversation, what he overheard would not be admissible. The conversations of the accused with officials may be proved where he is alleged to be insane (6). Statements made to magistrates or procu- rators-fiscal are inadmissible, as they ought to have them 1 Agnes Christie or Paterson, Glasgow, Sept. 17th 1842 ; 1 Broun 388.— Lewis V. Blair, H.O., Feb. 25th 1858; 3 Irv. 16 and 30 So. Jur. 608.— Will. Wylie, Glasgow, Sept. 30th 1858 i 3 Irv. 218.— Geo. Bryoe, H.C., May 30th and 31st 1864 ; 4 Irv. 506. 2 Dickson ii. §§ 1456, 1459.— Hume ii. 335, 336, Cases there coniro. — Alison ii. 580. — Ann Watt or Eetohen, Feb. 24tli 1834; Bell's Notes 244 (enticements by officer). — John Martin and Catherine Eobb, H.C., July 25th 1842 ; 1 Broun 382 and Bell's Notes 245 (questioning by officer). — John Bruce alias Wood, Glasgow, Sept. 16th 1842 ; 1 Broun 388 note and Bell's Notes 245 (ditto). — Janet Hope or Walker, H.C., July 29th 1845 ; 2 Broun 465 (semi-religious conversations with prison-keeper). — Theodore Dowd and Darby Furie, H.C., June 8th' 1852; J. Shaw 575 and 24 So. Jur. 490 (questioning by officer). — Geo. L. Smith and Eob. Campbell, H.C., Jan. 15th 1855 ; 2 Irv. 1 (ditto).— Catherine Beaton or Bethune, In- verness Sept. 19th and 20th 1856; 2 Irv. 457 (conversation with prison keeper). — Ditrich Mahler and Mar- cus Berrenhard, H.C., June lath 1857 ; 2 Irv. 634 and 29 Sc. Jur. 562 (statements made to an official on assurances of safety). — Helen Hay, Perth, Oct. 8th 1858 ; 3 Irv. 181 and 31 Sc. Jur. 30 (questions by officer). — The cases of Irfiwrie and Cairns : and Symon in Bell's Notes 244, 245, are overruled by the above decisions. 3 John Millar, Perth, April 22d 1859; 3 Irv. 406 and 31 So. Jur. 456. 4 FraserorKerrv.M'Kay, Inver- ness, April 21st 1853 ; 1 Irv. 213 and 26 Sc. Jur. 402.— Geo. Bryoe, H.C., May 30th and 31st 1864; 4 Irv. 506. (This point is not in the rubric, but will be found on p. 510.) 6 John Johnston, March 12th 1845 ; 2 Broun 401, overruling Tait and Stevenson, Jedburgh, April 1824, Alison ii. 536, 537. 6 Will. Wylie, Glasgow, Sept. 30th 1858; 3 Irv. 218 (Lord Deas' opinion).— Alex. Milne, H.C., Feb. 9th, 10th, and 11th 1863; 4 Irv. 301 and 35 So. Jur. 470. (Lord Justice Clerk Inglis' charge.) TRIAL. 54 5 put in the form of a declaration (1). Where statements Parolk are made to of&cials not connected with criminal mat- . J.1 ■ 1 • •! -Ti 1 1 • i A Statements to ters, their admissiDility depends on circumstances. A officials not statement of a person in the navy to his officer was held °™seoution'^'*' inadmissible, as not heing voluntary (2): A confession of the parentage of an incestuous child extorted by an in- spector of poor, was held inadmissible (3). But proof was allowed of a verbal confession to a kirk-session (4). The question whether statements to a clergyman are Satementsto privileged from disclosure has not been absolutely de- ° ^^^ cided (5). Where the communing is strictly of a religi- ous character, it would probably be held privileged (6). But circumstances which result from it, such as confes- sions to others, or attempts to make restitution, may be proved (7). Statements made to private individuals statements are admissible, even though made in answer to questions, ^^"i^'jj^ig provided no oppressive conduct was used to extract them (8). But where the person was truly acting in a quasi-of&cial capacity, the statement will not be re- ceived (9). Expressions uttered during sleep have some- Expressions times been admitted (10), but the propriety of doing so '^ "^ "'^ ^*^' may well be doubted. 1 Diclfson ii. § 1461. — Eob. 5 Dickson ii. § 1883.— Janet Hope Emond, Feb. 8th 1830 ; Bell's Notes or Walker, H.C , July 29tli 1845 ; 2 243 ; 2d notice on that page. — Alex. Broun 465. (Lord Justice Clerk Hendry and Jas. F. Craighead, Hope's opinion). — M'Laughlin v. Aberdeen, May 5th 1857; 2 Irv. Douglas and Kidston, H.C, Jan. 618 and 29 So. Jur. 346. In one 17th 1863; 4 Irv. 273 and 35 So. early case a Justice of Peace was Jur. 322. — See also David Boss, In- allowed to prove a conversation vemess, Sept. 21st and 22d 1859 ; 3 with the accused in jail ; Jas. Bat- Irv. 434. oliffe, June 25th 1739 ; Hume ii. 6 Dickson ii. § 1881. — Hume ii. 336. 335.— ii. 350.— Alison ii. 471, 586. 2 Philip Turner and Peter Ben- 7 M'Laughlin v. Douglas and me,Inverary, Sept 22d 1853; 1 Irv. Kidston, H.C, Jan. 17th 1863; 4 284. Irv. 273 and 36 Sc. Jur. 322. 3 Alex. Bobertson and Elizabeth 8 Dickson ii. § 1457. or Enphemia Bobertson or Bennet, 9 May Grant, Perth, April 18th Perth, April 27th 1853 ; 1 Irv. 219. 1862 ; 4 Irv. 183 and 34 Sc. Jur. 4 69 4 Will. Cuthbert and Isobel 10 Dickson Ii. § 1463.— Eob. Em- Cuthbert, Perth, April 26th 1842; 1 ond, Feb. 8th 1830; Bell'a Notes Brouu 311 and Bell's Notes 283. 243. 2m 646 TEIAL. Parole PKOOF. Statements only evidence against party making; them, except in cases of conspiracy. Statements of accused not evidence for him, but ad- missible where part of res qestse. One accused cannot prove statements by another. Statements by the accused are evidence only against himself (1). But statements made by an accused person who is not at the bar, are sometimes admitted in the trial of the other accused, not as direct evidence, but to prove an incidental fact (2). The answer made by one person charged with a crime in the presence of another accused, may be proved against the latter when he is tried alone, he not having contradicted it at the time (3). Cases of conspiracy form an exception to the rule ; the state- ments of each of the accused, if part of the res gestae, being competent evidence against all the conspirators. But this, of course, does not include confessions made after arrest (4), or statements made by a conspirator who is not at the bar, or produced as a witness, and whose ab- sence is not accounted for (5). Statements by the accused are not evidence in his favour (6). But where what is said is part of the res gestae, it may be proved (7), and he may found on it to show that his story has been uniform (8). In one case proof was allowed of what he said when asked to speak out against the other accused (9). But such statements are not thereby set up as proof in his favour. It is only upon the fact that they were made that he can found. One accused cannot prove statements made after the offence by a co-accused, even though the prosecutor might prove them against the latter (10). Where what is said by any one is part of the res gestae. 1 Milroy and others, H.C., Feb. 11th 1839 ; Bell's Notes 291. 2 Eobina Burnet and others, H.C., Nov. 17th 1851 ; J. Shaw 497, and 1 Stuart 50, and 24 Sc. Jur. 12. 3 Lewis V. Blair, H.C., Feb. 25th 1858 ; 3 Irv. 16 and 30 So. Jur. 608. 4 Dickson ii. § 1475. — Alison ii, 619. 6 Thos. Hunter and others, H.O., Jan. Sd 1838 f 2 Swin. 1 and Bell's Notes 290. 6 Hume ii. 401 note a. 7 Hume ii. 401 note a. — Thos. Hunter and others, H.C., Jan. 3d 1838; 2 Swin. 1 and Bell's Notes 289 8 John Forrest, Glasgow, Jan. 4th 1837 i 1 Swin. 404 and Bell's Notes 286. — Jane Pye, Perth, Oct. 3d 1838; 2 Swin. 187 and Bell's Notes 285. 9 Neil Moran and others, June 13th 1836 ; Bell's Notes 286. 10 "Will. Lyall and Alex Ramsay H.O., March 25th 1853 ; 1 Irv. 189. TRIAL. 547 proof in reference to it is competent (1), provided the per- Parole son himself be called or his absence accounted for (2). And T . . T , I'll -i • Statements by exclamations made by young children on witnessing an otherpersons offence, may be proved (3). Even things said by a per- ^^^Isf"' °* son who cannot be a witness, may be proved (4), if truly Although the part of the res gestae (5). Exclamations by bystanders competent are sometimes part of the res gestae. If a police constable caserf^' is led by what he hears called out, to apprehend the exoUmation by accused, then, although the person who exclaimed cannot be found, the exclamation may be proved. But wit- nesses are not allowed to repeat statements made to them which led to their action, unless the person who spoke is examined (6). In cases of personal injury, the statements of the statements by injured party after the occurrence maybe proved (7), where & provided in the ordinary case they were made not later ''*'™**- than a few hours after the offence (8). The greatest special latitude latitude isallowed in cases of injury to women (9), where in. cape of '' •' ^ ' injuries to accounts given one or two days after the occurrence are women, usually received (10). The latitude to be allowed is a question of circumstances (11). In one case a statement extorted a month after the occurrence, following on a partial disclosure made a week after the offence, was ad- mitted (12). Although proof of statements made de recenti is Proof of statement made by child 1 Dickson i. § 92.— Hume ii. 406 23d 1829 ; Bell's Notes 288. ^ recenti. note a. — Alison ii. 517, 518. 8 Dickson i. § 95. — Will. Hardie, 2 Will. Harvey, H.C, Feb. 23d Jan. 24th 1831; Shaw 237.— Neil 1835; Bell's Notes 292. Moran and others, H.C, June 13th 3 Alison ii. 518, case of Pollock 1836 ; 1 Bwin. 231 and Bell's Notes there. 288. 4 Hume ii. 400 case of Goldie in 9 Dickson i. § 98. — Alison ii. 514. note 2.— Alison ii. 520. 10 Will. Grieve, March 14th 1833 ; 5 Goo. Loughton, March 14th Bell's Notes 288. — See also Thos. 1831 ; Bell's Notes 261. Henderson, H.C, Nov. 10th 1836; 6 Dickson i. § 94 —Hume ii. 406 1 Swin. 316. note a. 11 Dickson i. § 98. 7 Dickson i. § 95. — Alison ii. 513, 12 Duncan M'Millan, Jan. 9th 814, case of M'Kay and others there. 1833 ; Bell's Notes 288. — ii. 624. — Peter Kelly, Glasgow, 548 TRIAL. PAHOLB PKOOF. Proof by hearsay o{ incidental facta, Hearsay Tvliere it is the best evidence available. Statements of person. Statements of deceased sodus. Proof by parole admissible, though de- ceased emitted a deposition. Proof by per- son who has read deceased's precognition. generally confined to the case of the injured party, a young child maybe corroborated by proof of state- ments made by him a short time after witnessing the offence (1). Hearsay is sometimes admitted to prove incidental points ; e.g., that a particular person is dead. In such matters prima facie proof suffices unless the opposite party dispute the fact (2). But proof that another party than the accused threatened to commit the offence libelled, is not admissible, he not being produced as a witness (3). And the same holds as to proof of state- ments of the good character of the accused by another person (4). Hearsay is admitted where it is the best evidence that can be procured. Thus statements made by any person who has died may be proved, if the deceased would have been a competent witness, and the statements would have been admissible (5), Proof has even been allowed of statements of a deceased person, who was averred by the libel to have been a participant in the accused's gidlt (6). Such proof is not excluded by the fact that the de- ceased emitted a deposition in relation to the case (7). And it is competent to prove the tenor of a deposition made in a former trial by a witness since deceased (8). A person who has read the deceased's precognition with a view to the trial cannot be examined as to the state- ment made by deceased. But a witness who had written 1 John Stewart, H.O., June 4th 1855 ; 2 Irv. 166 and 27 So. Jur. 408. 2 Dickson i. § 105. 3 Bob. Bouatt, Glasgow, Sept. 30th 1852 ; 1 Irv. 79. 4 Paul Cavalari, Glasgow, Sept. 28th 1854 ; 1 Irv. 664. 6 Dickson i. §§ 102, 103.— Hume ii. 407 to ilO passim. — Alison ii. fill to5\5 passim. — J as. Beid, Inverness, Sept. 1831; Bell's Notes 291.— Donald M'Cormack and Helen M'Cormack, Nov. 11th 1831 ; Bell's Notes 291. — Thos. Hunter and others, H.C., Jan. 3d 1838 ; 2 Swin. 1 and Bell's Notes 291. 6 WiU. Eeid, H.0,, Nov, 10th and 11th 1858 j 3 Irv. 236 and 31 Sc, Jur, 176, 7 Alex. Mackenzie, H.C., March 14th 1827; Syme ISS.^John Stew- art, H.O., June 4th 1856 ; 2 Irv. 166 and 27 Se. Jur. 408. 8 Dickson i. § 117. TRIAL. 549 the deceased's precognition, but had not seen it since, Parole was examined as to the deceased's statements (1). State- . . Stntemenfs by ments of a deceased person before the commission of deceased before the crime, may be proved, if pertinent to the libel (2). admissible, if The accused has been allowed to ask a witness whether |.roo?™iowed a certain statement was made in the hearing of a deceased that deceased injured party, and was not contradicted by her (3). Where mentin silence. the deceased referred to a day-book when making a state- ceTstd^con- ment, it was held that the statement might be proved, suiting a book although the book was not produced. (4). The question statement. whether proof is admissible of statements of a person ^^ments by who has become insane, has not been decided. The latest person who has . ., „ ^1. ■ J ■ ■ /'\ become insane. treatise on evidence favours their admission (o). It is to be observed as regards all hearsay that it is N^"* necessary not necessary that the witness should be able to repeat who proves a exactly what was said, provided he can state what im- Bifouid^g?Te pression was conveyed to his mind (6). ^^^^ words. In speaking of "productions," it may be observed in the ^^°°^ ^^ r O r 'J PRODUCTIONS. outset that some things need not be produced in any case. Copies of public statutes by the Queen's printer may be statutes, referred to without production (7). An almanac though neTd nof be" ' not produced may be used to test whether a witness' Produced, description of a day corresponds with the date libelled, provided the description fixes the date, although he may have forgotten what was the day of the month (8). Again; 1 Alex. Stephens, Aberdeen, 1827 ; Syme 224. April 20th 1839; 2 S win. 348 and 6 Dickson i. § 104.— See also Bell's Notes 292. Hugh M'Namara, H.C., July 24th 2 Chas. M'Mahon and Margaret 1848 ; Ark. 521. — Adam Coupland M'Mahon, H-C, Dec. 10th 1827 ; and WUl. Beattie, Dumfries, April Syme281.— Bob. Emend, Feb. 8th 14th 1863; 4 Irv. 870 and 35 So. 1830 ; Bell's Notes 293. —Alex. Jur. 454. Millar, H.O., March 18th 1837; 1 6 Hume ii. 406, note a.— Rob. Swin. 483. — Arthur Woods and Emond, Feb. 8th 1830 ; Bell's Notes Henrietta Young or Woods, H.O., 293.— Will. Harvey, Feb. 23d 1835 ; Feb. 25th 1839 ; 2 Swin. 323 and Bell's Notes 293. Bell's Notes 289 and 291. 7 Dickson ii. § 1052,— Act 41 Geo. 3 Alex. Stephens, .Aberdeen, III. c. 90, § 9. April 20th 1839; 2 Swin. 348 and 8 Will. Goodwin. H.O., Feb. 27th Bell's Notes 289. 1837 ; I Swin. 431 and Bell's Notes 4 Peter Oliver, H.C., July 9th 283. 550 TKIAL. Proof by productions. Witness URing article in his own possession to illustrate evidence. Article pro- duced by wit- ness must be taken away by him. Production of person for identification. although the Court has sometimes expressed disapproba- tion of passages being read from authors for the purpose of showing their opinions (1), it is common to use scientific works, though not produced, in cross-examining profes- sional witnesses (2). A witness may use an article in his own possession to illustrate his evidence (3). In some early cases witnesses were allowed to exhibit articles truly relating to the res gestcB of the crime. But the expediency of permitting this may be doubted. The case of an article exhibited merely as an illustration is entirely different. There seems nothing unreasonable in allowing a witness to pro- duce an article, to illustrate how a particular thing may be done, or the like. On the other hand, where it was proposed by a witness to identify a key produced, by fitting it to a lock which the witness had brought with him, but which was not a production, the objection was sustained that the lock should have been produced (4). Whatever may be the true limit to casual productions of this sort, an article produced spontaneously by a witness must be afterwards taken away by him (5). It is competent to produce a person who cannot be used as a witness for exhibition to other witnesses (6), and sufficient notice is given by including the person's name in the list of witnesses (7). It may even be a ques- 1 Catherine M'Gavin, H.C., May 11th 1846; Ark. 67.— John Thomp- son alias Peter Walker, Glasgow, Deo. 22d, 23d, and 24th 1857 ; 2 Irv. 747. 2 Dickson ii. § 1178. 3 Dickson ii. § 2046.— Hume ii. 394. — Alison ii. 613, 614, and case of Campbell there. 4 Will. Goodwin, H.C.,Peb. 27th 1837 ; 1 Swin. 481 and Bell's Notes 279. 5 Hume ii. 394.— Alison ii. 613, 614. 6 Dickson ii. § 1727.— Hume ii. 349 case of Larg and Mitchell in note 2. —Hill. B. Hay, Glasgow, April 22d 1822 J Shaw 85.— Jas. Bryce, H.C., March 11th and 12th 1844; 2 Broun 119 and Bells Notes 253.— Edward Tates and Henry Parkes, Glasgow, Deo. 24th 1851; J. Shaw 628 and 24 So. Jur. 141. Sir Archibald Ali- son opposes this practice except in bigamy cases, but his views have not been followed. — Alison ii. 463. 7 Geo. Clarkson and Peter Mac- donald. May 8th 1829 ; Bell's Notes 274.— John M'Lean, Perth, Oct. 3d 1836; 1 Swin. 278 and Bell's Notes 262. TRIAL. 551 tion whether in such a case any notice is absolutely Proof by , 11 PRODUCTIONS. necessary at all. It is a general rule that the prosecutor cannot put an Prosecutor article in evidence without notice (1). It has been held articles without incompetent to identify an article of dress upon the per- "'''"=«• son of the accused as being stolen property (2). But if Procedure notice be given of one article of a particular kind, articles of such as a watch, and several are produced, any one of pr^^uced, but the watches may be selected and put in evidence (3). ,°.?,'3f,°?® If the article vary substantially from the description Article wroag given, it will be rejected (4). It must not, however, be proTeoutor supposed that evidence may not be led as to articles not ™*y ^'^^^ ®"- ^ -t ^ . dence as to produced (5). The fact of the non-production may be articles not matter for observation (6), but in many cases articles may ^™ ""^ be incapable of production conveniently, or at all. Thus it is quite unusual to produce animals (7). Again, stolen articles may have been consumed, or stolen money spent, or the accused may have secreted or destroyed articles. And where, in a case of concealment of pregnancy, it was objected that an after-birth, which the accused's mother had shown to a medical witness, was not pro- duced, the objection was repelled (8). As regards Articles found articles found in the possession of the accused, the true mus°bf ^ rule seems to be, that the prosecutor cannot prove any- produced, thing in reference to them without producing them. It is true that in one case proof was allowed that a skeleton key found on the accused opened the cabinet from which the stolen property was taken, although the 1 Dickson ii. § 2046. — Hume ii. Macdonald there. 388. 6 Alez. Smith and Jas. Bankin, 2 Will. Sutherland and others, Glasgow, April 27th 1837 ; 1 Swin. B:.C., July 17th 1837 ; 1 Swin. 526 505 and Bell's Notes 278. and Bells Notes 279. 7 It seems at one time to have 3 Nicol Laidlaw, July 13th 1838 ; been the practice to place horses and Bell's Notes 277. — Alex. Humphreys other animals in premises near the or Alexander, H.C., April 29th 1839; Court.— Alison ii. 696. But this is 2 Swin. 356 and Bell's Notes 277. rarely if ever done now. 4 John Eoy, June 29th 1829 ; 8 Alison Punton, H.C., Nov. 5th Bell's Notes 275. 1841; 2 Swin. 572 and Bell's Notes e Hume ii. 393, 394, and case of 279. 552 TRIAL. Pboof by froductiom3. Forgery and coining cases. Decisions con- flicting as to production of Prosecutor may obtain conviction, though from misdescription he cannot use a production; key was not produced (1). But it is thought that this decision is contrary to principle, the best evidence being clearly absent. It is in cases of forgery and coining, where the forgery or the coin is the very essence of the case, that most strictness is used in requiring production of the article. So strongly is the necessity felt of account- ing for the absence of the forged document, that where it has been destroyed by the accused, the fact is usually stated in the libel (2). In such a case the prosecutor may prove the tenor of the document by parole (3). In the case of coining offences the decisions are not very satis- factory (4). It is, of course, competent to prove acts of uttering, although the coin is not produced. But in the case of the coin being detained and libelled on, but, through carelessness, being lost or mixed up with other coins, it becomes a question, whether the admitted fact that the prosecutor had it in his possession, is not to preclude him from founding on inferior proof, In two such cases, the jury were directed to acquit (5). But, in another case, the judge directed the jury that if they were satisfied, they were entitled to convict (6). It is difficult not to concur with the judgment in the two former cases. On the other hand, it is not an absolute rule that the prosecutor cannot obtain a conviction where he cannot put a production in evidence, owing to a blunder in the description. Here there is no hardship to the accused. 1 Alex. Smith and Jas. Kankin, Glasgow, April 27th 1837 ; 1 Swin. 505 and Bell's Notes 278. 3 Dionysius Wielobycki, H.C., Jan. 8th 1857 ; 2 Irv. 579 (indict- ment). There are many similar cases in the Beports. 3 Dickson i. § 143.— Hume i. 164, and case of Hay in note a. 4 Dickson ii. § 2051. 6 Grace M'Ginnes and Isabella Johnstone, H.O., July 16th 1839 j 2 Swin. 435 and Bell's Notes 279.— Joseph Simpson, Jedburgh, Sept. 1840 i Bell's Notes 136. 6 Janet Conuoway or Laird, Glasgow, May 5th 1840 ; 2 Swin. 503 and Bell's Notes 279. Mr Bell and Mr Dickson (ii. § 2051 note «) are incorrect in supposing that the previous case of M'Ginnes and Johnstone was not before the judge who tried this case. Lord Oockburn, who decided this case, was present at the trial in the case of M'Ginnes and Johnstone. TRIAL. 553 for the production is excluded at his instance, and if it Proof by is for his interest that it should be produced, he can - withdraw his objection (1). It is not necessary to produce written evidence of written evi- •' ^ . deuce of oolla- every collateral circumstance, although such written terai facts, evidence exists. For example, the fact that a person position," occupies an official position, is sufficiently proved by p™tage, &a. r X- ' J r J not necessary. shewing that de facto he was in the exercise of the office, and, where he is a witness, his own oath is suffi- cient. Where prima facie proof is led, it lies then with the party who disputes the fact to prove his allega^ tion (2). Further, it is not necessary to produce extracts from registers, in order to prove that a person is the wife of the accused, or that a child is his child, or is of a certain age (3). Even in bigamy cases, formal written evidence is unnecessary (4). And in all questions of property, the oath of a witness that an article belongs to him is sufficient (5). This principle has even been extended to questions of property in buildings, as in the case of fire-raising (6). All articles founded on must be identified and have Productions their connection with the case proved by witnesses (7). SbywitMsse" The only real exception to this rule in criminal pro- Exception in J r ^ r (.ase of extracts cedure is the case of warrants or other deliverances of of judicial judicatories, or formal extracts of such from the records of Scotch Courts of record, or extracts from the official register of births, &c. (8), which are proof of their own 1 John Wilson and Donald 1 Maoph. 94. M'Gregor, Perth, Sept 1834 ; Bell's 3 Alison li. 507. Notes 278. 4 John Maclean, Perth, Oct. 3d 2 Dickson i. § 131.— Alison ii. 1836 ; 1 Swin. 278 and Bell's Notes 506, 507. — John Hacleod, Inverness, 282. — Alison ii. 308 contra. April 28th 1858 ; 3 Irv. 79 and 30 5 Alison ii. 507. Be. Jur. 521.— Alex. Smith and 6 Daniel Black, H.C., Jan. 9th John Miluo, H.C., Dec. 19th 1859 j 1857; 2 Iry. 683 and 29 Sc. Jur. 3 Irv. 506 and 32 So. Jur. 155.— 127. See also observations by Lord Jus- 7 Dickson ii. § 2053. tice Clerk Inglis in Borthwick v. 8 Act 17 and 18 Vict. c. 80, The Lord Advocate, Dec. 5th 1862 ; § 58. 554 Proof et productions. Certificates of character. Certificates not admissible where case goes to trial. Certificate con- taining com- ments on facts inadmissible. Minute proof as to nature of article un- necessary. TRIAL. contents (1). Extracts of records of other countries are not received without proof of their authenticity and formality (2). An extract is the only competent proof of judgment of a Court of Eecord (3). There is another exception to the rule requiring docu- ments and other productions to be sworn to, viz., the case of certificates of character being produced where the ac- cused has pled guilty (4). The use of certificates in this way is not by any means the same thing as holding them to be proof of their contents, and would probably not be permitted in any case if the prosecutor were to object (5). And such certificates are not allowed to be used where the case goes to trial (6), even with consent of the prosecutor (7). A certificate which comments on the facts of the case cannot be read (8). The prosecutor need not prove that such productions as money or bank notes are genuine, or that a dress or similar article, libelled on as a woollen dress or the like, is truly such. If an article is apparently what the libel describes it to be, that is sufficient in questions as to the mere nature of the article (9). It is as to the special posi- tion of the articles, as connected with the offence or the 1 Dickson ii. § 1061. — Hume ii. 355.— Alison ii. 596 to 599. 2 Dickson ii. § 1284. — Hume ii. 355, case of Deane there. — Alison ii. 599. — Kenneth Macrae, Perth, April 1839; Bell's Notes 281.— Alex. Humphreys or Alexander, H.C., April 29th to May 3d 1839 ; 2 Swin. 356 and Bell's Notes 281.— Jane Macpherson or Dempster and others, H.G., Jan. 13th 1862; 4 Irr. 143 and 34 So. Jur. 140. 3 Hugh Fraser, Inverness, Sept. 19th 1839 ; 2 Swin. 436 and Bell's Notes 282. Of course an extract conviction only proves the fact that a certain person was convicted of a crime; its applicability must be proved, by witnesses. See Alison ii. 600, 601. 4 Dickson ii. § 1933. 5 Harris Rosenberg and Alithia Baruett or Rosenberg, H.O., June 13th 1842; 1 Broun 367 (Lord Mackenzie's opinion). 6 Dickson ii. § 1933.— Case of Rosenberg supra. — Duncan Stalker and Thos. W. Cuthbert, H.C., Jan. 29th 1844; 2 Broun 79. 7 Samuel Waugh and John Ram- say, Dec. 28th 1831 ; Bell's Notes 287. 8 Daniel Sutherland, jun. and others, H.C., March 23d 1847 ; Ark. 242. 9 Hume ii. 395, case of Clerk and Brown in note 1. — Alison ii, 603. TRIAL. 555 offender, that evidence must be led (1). As regards iden- Proof by tification, the accused is himself a production, and must be identilied by the witnesses. Sometimes the witnesses of™cused,"or are in a difficulty as to this matter at the trial from dis- °*o"ygg^^ tance of time, but if they prove that they identified a person in the custody of the police at an earlier period after the offence, and if it be proved aliunde that the accused was the person so identified, that will suffice (2). And the same rule applies to productions, which are generally identified by the labels attached (3). Where a witness became blind before the trial, it was proved that an article had been identified by him previously, and he was then examined regarding it (4). The case Proof aat of documents is that in which most questions of this w^ritten by- nature arise. Where documents are alleged to have been aooused. written by the accused, the best evidence of this fact is his own admission that he was the writer (5), or proof by witnesses who saw him write them. Failing these, or to strengthen their evidence where that is necessary, it is competent to prove the handwriting by the evidence of „ those well acquainted with it (6). Again, where a docu- not written by meat is said to be the writing of a person other than the ^°°"^® • prisoner, or to be a fabrication, the best evidence of this 1 A cnrions instance of the neces- was there prior to the offence libel- sity of having all matters of real led. — John Thomson, H.C., Deo. evidence spoken to by the witness- 4th 1848; J. Shaw 129. es, occurred where an attempt was 2 Dickson ii. § 2006. made to shew that the accused was 3 Dickson ii. § 2006. subject to fits of derangement, and 4 John P. Taylor, April 1838 ; especially so since he received a Bell's Notes 246. wound on the head. Witnesses 5 This will not, however, be were examined as to both these sufficient if the writing and sending facts, but none of them were asked of the documents be that which to speak to any mark of the wound. constitutes the corpus delicti, for in Thereafter it was proposed that the that case the above actions on the jury should inspect the scar which accused's part amount to a oonfes- had been left by the woman, but sion of the charge, which, without the Court refused to allow this, as additional evidence, is not suffl- the wound had not been connected cient to entitle a jury to convict- by the witnesses with the scar, and Vide p. 565. as there was no proof that the scar 6 Hume ii. 395. — Alison ii. 602. 556 TEIAL. Pkoof by productions. Proof that signature of bank official forged. Professional evidence as to handwriting. Flans, models, &c., should be proved by neutral per- sons. Sufficiency of proof as to an article is a q.uestion for the Court. is the oath of the party whose writing it purports to be, and if the prosecutor do not call him, and do not prove that his absence was not caused by negligence or fault on his part, secondary evidence will not be allowed (1). But secondary evidence will be allowed where reasonable cause is shown for the absence of the best evidence (2). Formerly it appears to have been thought permissible to prove the forgery of signatures of bank' officials by other officials than those forged on (3). But it is probable that such proof would not now be allowed unless the absence of the better evidence were accounted for (4). The evidence of professional wit- nesses as to writings, is admitted by all the text books to be of little value (5). Such evidence by itself is not sufficient proof (6). Where plans, or models, or similar articles are to be used, the proper witnesses to prove their correctness are those who prepared them (7). The question whether the proof relating to productions is sufficient, is one for the Court. But the Court wUl sometimes admit a document, though the proof in refer- 1 Alex. Humphreys or Alex- ander, H.C., April 29th to May 3d 1839 i 2 Swin. 356 and Bell's Notes 284 and 287. 2 Christian Kennedy or Connor, Nov. 9th 1829 ; Bell's Notes 61 Sir Archibald Alison (ii. 508), quotes this case as a warrant for a much greater relaxation of strict rule than Mr Bell's Eeport indicates. — Joseph M. Wilson, H.C., June 8th 1857 ; 2 Irv. 626 and 29 So. Jur. 561. 3 Alison ii. 508, and case of Smith or SelkridgB there. — ^ii. 603. 4 That it was usual even formerly to account for the absence of the party whose writing was forged is indicated by the case of Kennedy supra, and by Andrew Robb, Feb. 20th 1832 ; Bell's Notes 61. 6 Dickson i. § 925. — Hume ii. 395. — Alison ii. 603. 6 Thos. Hunter and others, H.C., Jan. 3d to 5th, and 8th to 11th 1838 ; 2 Swin. 1 and Bell's Notes 61. — Bob. M. Beveridge, Ayr, Oct. 6th 1860 ; 3 Irv. 625.7— In one or two earlier cases such evidence was allowed. — Will. Harvey, Feb. 23d 1835 ; Bell's Notes 61. — Alex. Fraser and Mar- garet Wright, March 16th 1835 ; BeU's Notes 61. 7 Joseph Alison and Maxwell Alison, H.C., July 16th 1838; 2 Swin. 167 and BeU's Notes 280. TRIAL. 557 ence to it be somewhat incomplete, leaving the effect of Proof by ... ^, . ... '^ ° Pkoductioks. it to the jury (1). The following is a short epitome of the leading Compsteney points relating to the competency and effect of putting articles m articles in evidence. It follows from the rule that evidence, records or official extracts are evidence of their contents, judidai^pro- that thev cannot he affected by parole evidence (2). ceedings oan- •' „ . •' '^ , not be affected And as they are proof against a party where they by parole, describe proceedings so as to indicate that they were formal and regular, so they are conclusive against the proceedings, if they indicate them to have been irregu- lar (3). Thus, convictions which did not bear that the witnesses had been sworn, were rejected (4). But where the word "evidence" was used, it was held to imply evidence on oath (5). And the same was held where the word " examined " was alone used (6). It may be mentioned here that an extract conviction for theft ought to state the articles stolen (7). An extract of a judg- ment of a kirk-session was rejected, being only signed on the last page (8). But one signature was held suffi- ^^^^^^l cient where the extract was on one sheet (9). page, unless on one sheet. 1 Eagan or Atken v. Procurator- Thomas or Dykes and Helen Good- fiscal of Nairnshire, H.C., Nov. all, H.C., Nov. 9th 1827; Syme 16th 1867 ; 2 Irv. 739 and 30 So. 262.— See also Thos. Purves, H.C., Jur. 33.— For cases of documents May 16th 1825; Shaw 133.— Gold rejected, see John Wilson and V. Hunter and others, H.C., June others, July 4th 1831 ; Bell's Notes 24th 1847 ; Ark. 318. 279. — Jas. Stevens, March 15th 6 Alison ii. 698, case of M'ftueen 1839 ; Bell's Notes280.— Alex. Hum- and Eobson there.- Isabella Cobb phreys or Alexander, H.C., April or Fairweather, H.C., Nov. 2l8t 29th to May 3d 1839 ; Bell's Notes 1836 ; 1 Swin. 364 and Bell's Notes 280 and Swinton's Special Eeport. 282. 2 Dickson ii. §§ 1061, 1062. — Jane 6 Alison ii. 51, case of Connar Macpherson or Dempster and others, there. — ii. 597, case of Gunn and H.C., Jan. 13th 1862 ; 4 Irv. 143.— Maogregor there. (This point is not mentioned in the 7 Will. Mackenzie, Glasgow, rubric.)— Isabella Cobb or Fair- Sept. 12th 1836 ; 1 Swin. 299. weather, H.O., Nov. 21st 1836; 1 8 Hugh Fraser, Inverness, Sept. Swin. 364 and Bell s Notes 282. 19th 1839 ; 2 Swin. 436 and Bell's 3 Alison ii. 597, 598. Notes 279 and 281. 4 Allan Grant and others, H.C., 9 Alison Punton, H.O., Nov. 5t)' Mar. 5th 1827 ; Syme 138 — Ann 1841 ; 2 Swin. 572 and Bell's Note-- 28 L. 558 TRIAL. Proof by productions. Proof of medical report. Medical report made up after an interval. Report should not detail facts from hearsay. Plans, &c., should not con- tain anythinjj; extraneous, and should be pre- pared by neu- tral person. Ancient books, &c., as evidence of ancient matters. Proof by declaration. "Where a medical report is lodged, those who drew it up swear to it as a true report (1). It is not a sufficient objection to a medical report that it was made up at an interval after the occurrence of the circumstances to which it relates (2). A medical report which details facts derived from hearsay.is objectionable (3). Plans or models which are to be used in evidence should not contain anything but that which is presented to view by the place or premises which they represent in their ordinary state (4). And they should be prepared by a neutral person (5). In cases where the proof relates to ancient matters, old chronicles, or histories, or maps, or old family Bibles, with entries of births, &c., may be put in evidence to show when or where a particular per- son died, or the like (6). And it is competent to exa- mine a witness who is learned as to ancient works to prove the book or map produced to be truly what it pur- ports to be (7). To prove against the accused his statements made on declaration, the declaration must be produced (8). It 1 Dickson ii. § 2009.— Alison ii. 541.— ii. 601, 602. 2 Alison ii. 601. 3 Margaret Shiells or Fletcher, H.C., Nov. 7th 1846 ; Ark. 171.— Sir Archibald Alison (ii. 602) states that if the writer of a medical report has died before the trial, his report may be used in evidence. The soundness of this view may be doubted. 4 Arthur Woods and Henrietta Young or Woods, H.C., Feb. 25th 1839; Bell's Notes 280.— Donald Kennedy, H.C., Dec. 3d 1838; 2 Swin. 213 and Bell's Notes 280. 5 Jas. Freeland, Jedburgh, April 7th 1835 ; Bell's Notes 248. 6 Dickson ii. §§ 1174, 1175, 1176. Alex. Humphreys or Alexander, E.G., April 30th and May 1st, 2d, and 3d 1839 ; Bell's Notes 283 and Swinton's Special Eeport. 7 Case of Humphreys, «i supra, Bell's Notes 280, 283, and 289, and Swinton's Special Eeport. In this case it was proposed to prove an ancient fact by proving the genuine- ness of the signature to an ancient attestation of the fact ; the Court held that the signature might be proved and the document read, but not to the effect of proving the fact aifirraed by it. The question was also raised, but not positively de- cided in this case, whether it is competent to prove by the keeper of an ancient book of register, that he had made a search for and had not found a certain thing in the book, although the book itself was not produced at the trial. 8 Dickson i. § 111.— ii. § 1426.— Hume ii. 325.— ii. 332. TRIAL. 559 may be doubted whether the doctrine laid down by one Proof by learned author (1), and adopted by another (2), is sound ''"°°""''°'"- in principle — ^viz., that if a declaration have perished, or ivhethe"non- been lost, without fault on the prosecutor's part, he shall *™'^ "{}°^^ , ^ JT ' declaration can be entitled to prove its tenor by parole. The declaration be proved. must be proved ; but this is generally dispensed with by must^be proved the accused admitting the declaration (3). It is custo- admHfed"^™"^ mary, however, in cases of murder to prove the declara-' tion formally. In practice, two of those who signed the Two witnesses declaration prove it, including all the circumstances, such deoiaratira."''' as the accused's state of mind, the cautions given, &c. (4). The Courts have expressed disapprobation of declarations Procurators- being proved by Procurators Fiscal and police officers, ^^^ ^°->MctfUcal Report, 658 -Smith. Shillinglaw, Mabok and; — Declaration, 290.-* Citation, service copy, 493 , Shirrepps, Reid and; — ^inventory, 488 Sillers, Dan. ; — Robbery and Stouthrief, aggra- vation, 67 Simpson, Ann; — Pleas in bar, 509 „ Da v.; — Deforcement, 243, 244 „ GAV.;~Modu8, 366 „ Jas.;- Theft, 60,— Br. of Trust, 77 „ Jos. ; — Productions, 662 „ TH08. ;~Neglect of Duty, 220 „ and DoDS ;— Sodomy, attempt, 227. — Modus, ditto, 464 „ Philips and;— Theft, 33 „ and others; — Justifiable Horn., 162 „ V. Crawfori> and Dill; — Summary, 680 1, Christie v, ; — Remitting to Assize, 615 „ Duff v. ;— Verdict, 670.— Summary, 584 „ M'Ihkernet v.^ — Summaiy. 584 „ BoNNAR V. — and others; — SVitness refusing oath, 629 Sinclair ; — Deforcement, 240 „ Alex. ; Witness, child, 619 „ Geo. ;— Incest, 227 „ Maby ; — CoH. of Pregnancy, 174 . „ Jno. — or Jas. Cravtpord; — Locus, 339 „ G. & J. ;— Deforcement, 24a— Arrest, 288 „ and M'Ltmont; — ^Housebreaking, attempt, 86 „ and Nicolson ; — Locus, 343 „ Scott and; — Libel, aggravation, 483 „ Jno: — and others ; — Verdict, 572 „ Will. — and others; Locos, 344 „ Scott v. ;— Summary, 584 Skeldoch, Jno. ;— Witness Lists, 490 Skelton; — Locus, 345 Skeocb, Marion Rosmond or; — Theft, aggrava- tion, 66 Skinner, Jans ; — Con. of Pregnancy, 170 „ Jos. ; — Assault, provocation, 177 „ V. Adamson; — Review, 691 „ T. Robertson; — ^Appe^ 589 Sleish and Russell v. Moxet ; — Br. of Peace, 214 Sliman, Ad. Slishng or ; — Pleas in bar, 509 Sliming, Ad.— or Sliman ;— Pleas in bar, 609 Sloan, Jas. ; — Forgery, uttering, 99 Smart, Jas. ;— Theft, 34.— Lockfast, 44 „ Jas. Thompson or; — Convict sick, 586 Smellie, Steele and ; — Modus, 3S8 Smith, Alex. (1);— Hab. and Rep., 58 „ Alex. (2) ;— Robbei-y and Stouthrief, 63 „ Alex. (3) ;— Robbery and Stouthrief; 63 „ Alex. (4);- Gulp. Horn., 156i— Moving for sentence, 674 „ Dav. ;— Declaration, 293.— Interpreter, 508 „ Don. ;— Breach of Duty, 219.— Modus, ditto, 458 „ Geo. (1) ;— Breach of Trust 79 „ Geo. (2) ;— Threats, 201 „ Jas. (1) ;— Public prosecutor, 314 „ Jas. (2) ;— Fraud, 106 „ Jwo. (1) ;— Pleas in bar, 609 „ Jno. (2) ;— Theft, 48 „ Jno. (3) — ^Witness, heard others precog- nosced, 626 „ Jno. (4);— Theft, 25, 49, 49.— Libel, time, 338.— Locus, 348.— Modus, theft, 39fi „ Jho. (5) ;— Falsehood by Writ, 81, 89 „ Jbo. (6);— St^liouate,186 „ Jno. (7) ;— Homicide, isa— Culpable ditto, 154 „ Jno. (8);— Theft, Robbery, &c, aggravabon, 66 INDEX OF CASES. 623 Smith, Madbleine ; — Modus, attempt to murder, 444. — Medical witness, 537. — Correspond- ence with accused, 6G8. — Copy letters, 663. — Diaries, 569 ,', Pet.; — Modus, Housebreaking, 412. — ^Exe- cution of Citation, 497, 498 „ Rich. ; — Court impugning libel, 612 « Rob.; — Prison-breaking, attempt, 247. — Mo- dus, ditto, 478 „ Sam. ; — Public prosecutor, 314 „ Thos. ;— Gulp. Hom., 157 „ Wal. ;— Forgery, 94 „ Will. (1) ;— Prompting witness, 505 „ Will. (2) ;— Witness Lists, 489 „ Will. (3); — Pleas competent to accused's cautioner, 507 „ Will. (4) ; — Re-exam, on declaration, 294. — Tholed assize, 511. — Proof, declaration, 559 „ Jno., — or Stevenson; — Housebreaking, 38 „ Makg., — or Spalding; — Modus, theft, 395 „ Makt, — or Selkeidge ; — Best evidence, 556 „ Will., — or Jno. Gmra; — Lihel, de^gnation, 321 „ Jno., — or Llotd or Shepherd ;— Theft, 48 „ Ed., — or Jno. Anderson or Henderson; — Witness, cornipted, 525 „ Thos. or Alex., — or F^zabd or Tizzakd ; — Pleas in bar, 509 „ Mary Elder or ;— Declaration, 291.— Tholed assize, 510. — Hearsay, 543 „ Mary Wilson or ; — Locus, 840 „ and Brodie ; — Housebreaking, 37.— Witness lists, 489.-r-Pleas in bar, 511 „ and Campbell; — Insanity, 14. — Statements of accused, 544. — Witness not in lists, 667 „ and Christie; — Prosecutor disclaiming, 314 „ and Forrester;— Theft, 33 „ and M'Neil ;— Neglect of duty, 219. — Reck- less use of firearms, 221 „ and Milne ; — Assault, aggravated, 184 — Written evidence, collateral facts, 553 „ and Rankin; — Productions, 551, 562 - „ and Stevenson ; — Witness, spouse, 619 „ and Tatloe ; — Ai-t and part, 13 ' „ and WisHART;— Art and part, 4.— Theft, 51 —1701, c. 6; 306.— Libel, Major, 324.— Time, 336.— Modus, 879.~Modus, theft, 398, 400 „ HoNEVMAN and ; — ^Declaration, 291 „ Lamont and; — Assault, aggravated, 181 „ Peter and ; — ^Plea, 514 „ M'Leod and Dick or;^Theft, 25 „ Morrison and Curran or; — ^Libel, aggi-ava- tion, 481 „ — , and others ; — ^Presence of prosecutor, 605 „ Dav. — and others ; — Gulp. Hom., 157 „ Geo.— and othera (1) ;— Bail, 300 „ Geo. — and others (2) ;— Robbery and Stonth- rief, 62. — Modus, 390. — Modus, mobbing, 452, 454. „ MARG.~~and others ; — Murder, 142, 143 „ V. EiNNOCH ; — Review, 587 „ V. Lothian; — Modus, 374. — Modus, Br. of Trust. 407.— Relevancy Sheriff Court 612 ,f V. PROC. Fiscal of Paisley ; — Appeal, 589 „ V. Young; — ^Night poaching, 218 „ V. Forbes and Low; — Summary, 580. — Re- view, 591 „ French and others V. ;— Declaration, 293, Re- view, 691 Smyth, Geo. ; — ^Indecent exposure, 230 Snaddon v. Spencb; — ^Review, 695 Snailb, Alsx. ; — Theft, 33. — Housebreaking, 37 Smith— Stewart. Somerville, Ann;— Citation service copy, 494 „ Thos.;— Peijury, 237 „ Chapman or Turnbull and ;— Locus, 346 „ v. H emmans ;— Review, 588 „ Gallowav v. ;— Tholed assize, 510 SoMMERViLLB, Griz. ;— Theft, 27.— Threats, 201.— Public prosecutor, 314 " Soutar and others; — Execution of citation, 498 SOTJTER and Hog ; — Attempt to suborn, 2^9 Spalding, Maug. Smith or; — Modus, theft, 395 Sparrow, Ann;— Insanity, 16 Specks, Col. ;— Witness, malice, 525 Speid v. White ;— Mischief, 135 SPEiHsandothers;— l-'erjury, 236. — Libel, time, 338. Locus, 360.— Amending libel, 513 Spence and Blewbatter; — Libel, time, 336 „ Snaddon v. ;— Review, 595 „ Swinton v. ;— Commitment, direct, 298 Spittal, Rob. ;— 1701, e. 6 ; 302 SpROTand others; — Reckless use of firearms, 221. — Conspiracy, 269 Stables, Kee and;— Theft, 25 Stair, Park and others v. ; — Review, 588 Stalfdrd and others; — Piracy, 68 Stalker and Cuthbert;— Falsehood and fraud, 88, 108.— Modus, forgery, 416.— Certificates, 554 Stanspield, Geo. ;— Declarations, 560 „ Phil. ; — Cursing parents, 188 Stahk, Isa.,— or Mould;— Reset, 71 „ and others; — Theft, 25 Steedman, Geo. ;— Review, 588 „ Mich. ;— Forgery, 96.— Uttering, 100.— Mo- dus, 387 Steel, Alex. ;— Theft, 28 „ Jas. ; — Assault, aggravated, 180 „ Thos. ;— Locus, 347 „ and others;— Deforcement, 243 „ Craig v. ;— Summary, 581 „ Law t. ;— Complaint, 578 „ Lock and Doolen v. ;— Nummary, 584 Sleele and Smellie; — Modus, 358 STENHOUSEand M'Kay;- Culp. Hom , 157.— Modus, 383.— Modus, Culp. Hom. 443 Stephens, Alrx. ;— Witness' privileges, 531.— Hear- say of deceased, 649 Steven, Jas. ;— Libel, major, 322 „ and others v. Morrison;— Libel designation, 319.— Review, 592 Stevens, Jas. ;— Laying foundation, 635. — Produc- tions, 567 „ Jno. ;— Tholed assize, 510 Stevenson, Jas. ;— Jurisdiction, theft, 274.— Modus, theft, 399 „ Rob. ;— Modus, 386.— Modus, Br. of trust. 407 „ Thos,, — or Hodge ;— Violating graves. 87 „ Jno. Smith or;- Housebreaking, 38 „ SMrre and ;— Witness, spouse, 519 „ Tait and ; — Statem ents of accused, 544 „ and others ; — Witness lists, 489 „ V. Scott; — Accused put on oath, 535 „ V. Watson; — Summary, 580 „ Addison v. ; — Review, 688 „ Clark v. ; — Summary, 680 Steward, Murray;— Declarations, 560 Stewart, — ; — Con. of pregnancy, 170 „ Allan ;— Laying foundation, 534 „ Arch. ; — Breach of duty, 219 „ Dan. or Don ;— Jury, 517 „ Dav. ;— Theft, 6ff „ Don, ; — Deforcement, 244 „ Dun, ;— Modus, 367, 363 „ J. ;— Obj«ctloii to witness, 490 624 INDEX OF CASES. Stewart- Stewabt, Jas. (1) ;— Modus, 367 „ Jas. (2) ;— Respite, 58S „ Ja9, (3) ; — Housebreaking, 35 „ Jas. (4) ; — Modus, murder, 441 „ Jno. (1) ; — Deforcement, 243 „ Jno. (2) ; — Hamesueken, 191 „ Jno. (3) ;— Proof of malice, 539.— Hearsay of child, 548.— Hearsay of deceased, 548.— Deposition of ditto, 562 „ Jno. (4) ; Declaration, 290 „ Eliz. Laied or; — Limitations of proof, 537 „ Eliz. Robertson or;— Hab. and Rep., 68 „ R. and C. ;— Witness lists, 490 „ and Irvine ;— Verdict, 569 „ and Wallace ; — Incest, 226 „ and Walsh ;— Modus, 388 „ Dalt and ; — Locus, 346 „ KiTtKPATRicK and; — Gulp. Horn., 158, 160 „ M'Pherson and;— Gulp. Horn., 157.— Modus, ditto, 442 „ Ross and; — Modus, housebreaking, 413 „ Don., — and others; — Assault, provocation, 178,— Libel, designation, 320.— Ground for adjournment, 507. ^Limitation of proof, 537 „ Rob.,— and others (1) ; — Modus, 392 „ Rob., — and others (2) ; — Modus, hamesueken, 447 „ or GOOK and others;— Assault, aggravated, 184.— Deforcement. 241 „ V. Born; — Sentence, 677. — Summary, 583 „ V. M'Kenzie; — Desertion of "the libel," 508 „ V. Phoc. Fiscal of Forfar; — Assault, 176 „ DuKRTN and,— V. M'Kat;— Riot, 213 „ M'Latjghi.in v.;— Theft, 47 Stirling and others; — ^Treason, 255. — Locus. 349 „ Wal., — and others ;— Concourse of Crown, 313.— Separation of Trials, 513 „ Neil v. Frog. Fiscal of; — Warrant to an-est, 285.^^heviff, summary, 585 Stobie and BerrTj; — Libel, designation, 318 Stock, Edm.; — Pardon, conditional, 596 Stoddart, Ad. ; — Gulp. Hom., 156 Storie, Rob. ; — Assault, 177 Storsionth, Whitton or, — v. Dhummond; — Locus, 339.— Modus, 361.— Complaint, 679 Strachan ; — Falsehood by i\Tit, 98 „ and Roster ; — Forgery, 95 Strang, Wtllie and; — Marriage, 222 ,3tratheabn, Campbell v. ; — Review, 588 ^TRUTHERS, WiLL. ; — Culp. Hom., 157 „ Lindsay and; — Falsehood by writ, 99. — Mo- dus, 388 „ M'Kenzie or, — and Struthers ; — Libel, minor, 331 Stuart, Jno; — Libel, minor, 332 „ Dan. or Don. ;— Theft, 31 „ and Low; — Lockfast, 44. — ^Modus, 387 „ and Wright or Stuart; — Theft; drugging, 45, 199.— Libel, major, 324, 325, 328.— Locus, 350 —Modus, 370, 383.— Modus, drugging, 450.— Libel, aggravation, 481 „ M'Leish and; — Responsibility, 14 „ Mills and; — Housebreaking, 36 „ and others; — Fii-eraising, 128 „ Will., — and others; — Libel, time, 336 SuEEAGE and others ;^Separation of Ti'ials, 513, 514 feuTHERLAND, ANN; — ^Theft, aggravation, 61 „ Jno. (1) ; — Housebreaking, 84 „ Jno. (2) ;— Lockfast, 43 „ Jno. (3) ;— Gulp. Hom., 157 „ Pbt. ;— Libel, Minor, 332 „ Rob. ;— Theft, 52.— Br. of Trust, 79 „ Will. ;— Fireraising, 130.-1701, C. 6 ; 306 •Thompson. Suthebland, Williamina; — Gulp. Horn., 159. — Verdict, 571 „ and M-Neil;— Modus, 369 „ and Tdenee ; — Lockfast, 44 „ and Gibsdn, — or Murray ; — Coin, 119 „ Galloway and ; — Locktast, 44. — ^Declaration, 296 „ Dan, — and others; — Certificates, 554 „ Will. — and others (I) ; — Deforcement, 242, 243, 244 „ Will. — and others (2) ; — ^Productions, 5')l Swan, Ann,— or Forbes ; — Declaration, 294, 295 „ and Little ; — Sodomy. 227 SwANSON, Keith and; — Conspiracy, 269 SwANSTON and others; — Art and part, 12 SwEENiE, Chas. ; — Rape, 192, 193.— Clandestine injury to woman, 195. — Jurisdiction, 278. —Modus, 448, 449 SwiNTON V. Spence ; — Commitment, direct, 298 Syme, Alex. ; — Assault, aggravated, 179 „ Ant. ;— Theft, 49 „ Dav. ;— Libel, Minor, 334 Symon, CATH.;^Statements of accused, 544 Symmons, Jno. ;— Bail, 300 Tait and Strvenson; — Statements of accused, 544 „ and Taylor ; — Deforcement, "240 „ MuiTay and;— Theft, 50, 51.— Modus, theft, 398 „ Blyth and, — or Blyth v. M'Bain;— Sum- mary, 581 Tarbat and others; — Culp. Hom,, 152. — Hamesue- ken, 189 Taebet and Ferne; — Art and part, 5 Tarras, Wim,.;— "Verdict, 572 Taws, Chas.; — Jurisdiction, theft, 274, 275 — Ar- rest of judgment, 575 Taylor, Dan. ;— Forgery, 94. — Uttering, 103, 111 „ J.; — Abduction, election, 196 „ Jno. (1) ; — Libel, designation, 321 „ Jno. (2) ; —Production, identifying, 555 „ Jos. ; — Jurisdiction, theft, 274 „ Will. (1) ; — Jurisdiction, 274, — Indorsation 287 „ Will. (2) ;— Perjury, 237 „ Mary M'Farlane or; — Arrest of judgment, 575 „ Rose and; — Modus, housebreaking, 414 ,, Smith and; — Art and part, 13. — Modus, 389 „ Tait and; — Deforcement, 240 „ and others; — Jui'isdiction, 278 ,, Arbijckle v. ; — Commitment for farther ex- amination, 297 — Bail, 3(i0 „ Blyth t. — and Robson ; — ^Warrant, 285.— Summary, 680 Tatne, Ann ; — Re-exam, on declaration, 295 Telfeb, Col. ; — Murder, 140 „ Thos. Wilson or Lotv or; — Libel, desig- nation, 321 „ V. Moxey; — Libel, aggravation, 482 Temple, Barclay and Colquhodn or; — House- breaking, 40, 42 Tenant, Dav. ; — Convict at large, 687 „ Will. ;— Respite, 686 Thomas or Dykes and Goodall;— Extract, proba- tive, 657 „ Brooks and;— Modus, 367, 369, 385, 392 Thompson, And.;— Fireraising, 128 „ Elizabeth; — Locus, 340 „ Jno. ; — Productions, identifying, 655 „ Rob. ;— Insanity, 15 „ Thos. (1) ; — Housebreaking, 35 „ Thos. (2) ;— Modus, 360 INDEX OP CASES. 625 Thompson- Thompson, Geo., — or Walker ; — Assault, aggra- Tated, 180. — Indecent Exposure, 230 „ Jas. — or Smabt ; — Convict sick, 586 „ Jho.,— or Pet. Walker; — Witness, child, 619. — Scientific ^vorks, 660 „ Jno. Young or, — or Dav. Marshall ;— Libel, designation, 319 „ and Inglis; — Hamesucken, 191 „ and M'Kenzie ;— Tlieft, 24.— Attempt to steal oysters, 87. — Modus, oyster theft, 399 „ and PoRTERFiKLD ; — Pardon, conditional, 696 „ and Watt; — Declaration, 292 „ and Williamson; — Summary, 584 „ or MuEKAY and Bryce or Wilson; — Rob- bery and Stouthiief, aggravation. 67. — Modus, 381 „ Hat and;— Accession 7, 8. — Verdict, 570 „ Clakk and Gray or;— Modus, 373, 374, 392 „ A. — and others; — ^Theft, 29. — Housebreak- ing, 37 V „ Jas. — and others; — Assault, aggravated, 180. —Modus, 368.— Modub, mobbing, 453 „ Jno. — and others ; — Citation, seiTice copy, 494 „ Will. — and others (1) ; — Objection to wit- ness, 490 „ Will. — and others (2) ; — Housebreaking, 84. ^Modus, ditto, 415 „ M'RiTCHiK v.; — Appeal, 589 „ Williamson v. ; — Summary, 584. — Review, 693 Thorbtjrn, Sept.; — Bigamy, 224 „ V. Morrison; — JReview, 592 Thow, Ferguson v. ; — Sentence, 576 Tizzard, Thos. or Alex. £mith or Fizzard or; — Pleas in bar, 509 Tod, And. ; — Prevarication, 530 „ KiNNOiTLL V ; — Review, 587 „ Yeaman v. ;— Locus, 339. — Review, 591, 593 Todd, Dav. ; — Declaration, 295. — Witness, wife of outlawed co-accused, 529 ToDRiCK, Graham v. ;— Verdict, 569 Tonner, Eliz. Bsggs orj^Theft, 24. — Modus, theft, 4ul Torrkncb, Waldie and ; — Plagium. 29 Tough v. Jopp; — ^Private prosecution, 312. — Con- course of crown, 313. — Locus, 343. — Sum- mary, 583 Trainer v. Johnston; — Summary, 580 Treasury, Eliz,, — or Campbell; — Coin, 124 Trotter, Hen. ; — Mi.schief, 133 „ Will. ;— Gulp. Horn., 156 „ and RiGG ;— Tlieft, 25.— Mischief, 134 „ Webster v. ; — Search waiTant, 316 Troublecocks, Jno. ; — Jurisdiction, 273 Tdmbleson, Sam. , — Attempt to murder, 165, 166, — Modus, 444 TuRNBULL, Jas. ; — Convict at large, 587 „ Janet; — Modus, perjury, 468 „ Wal. ;— Theft, aggravation, 60 „ and Hay ; — Responsibility, 14 „ Chapman or — and Somerville; — ^Locus, 345 Turner Co. ; — Hab. and Rep., 57 * „ Don. ; — Intei-preter, 508 „ and Moeison; — Separation of charges, 513 „ and Rennie; — Reckless use of fireanns, 22L — Statements of accused, 545 „ Sutherland and; — Lockfast, 44 „ , and others; — Modus, 373 „ Will. — and others; — Invading honees, 214 „ Marshall v. ; — Appeal, caution, 590 TwEBDALE, J NO. ; — SenteucB, 677 TwEEDiE, Christ,, — or Laidlavt; — Witness refusing oath, 629 — ^Watson, TwYN, Jno ;— Treason, 252 Tykik, Wal. ;— Theft, 48 Urb, Wal.; — Attempt to BteaX, 87. — ^Libel^ Major, 323 Urquhakt, Dav,; — Responsibility, 14. — Youth, 20 „ and others; — Breaking into prison, 248 VAiEand Meadowcroft; — Housebreaking, 39, 42. — Modus, 414 „ and others; — Theft, 27.— Housebreaking, 39 Vallancb, Jno. ;— Fireraising, 128. — Proof, declar- ation, 659 Vance, Rob. ; — Gulp. Horn , 153 Vance and others; — Theft, aggravation, 60 Van-ni-Fbank Don; — Libel, Designation, 321 Vaudenburgh, Gor.;— Jlischief, 133. Vaoghan, Thos. ; — Treason, 255. Veitch and others v. Reio; — Review, 694. Waddel and others ; — Oppression, 200. ,, V. Romanes; — Summary, 582. Wadb, Hen. ; — Plagium, 29. Waiters, Will. ;— Uttering, 102.— Verdict 568 Waldie and Torrknce; — Plagium, 29 Walicek, Agnes ; — Verdict, 570 „ Dav.;— Theft, 34.— Loclcfast, 44.— Br. of Trust, SO.— Locus, 350.— Modus 383, 367 „ Geo. ;— Fraud, 104 „ Jno. ; — Habit and repute, 57 „ Rob.; — Subordination, punishment, 240. — Libel, time, 338. — Locus, 347.— Witness, judge, 522 „ Geo. Thomson or; — Assault, aggravated, 180.— Indecent exposure, 230 „ Jas. Ratcliff or ; — Prison-breaking, 247 „ Janet Hopis or; — Witness, law adviser, 528 Statements of accused, 644 ; to clergyman, 545 „ Jno. Thompson or Pet. ; — Witness child, 519. — Scientific works, 550 „ and others ; — Robbery and stouthrief, aggi'a- vation, 67 Walkinshaw, Will. ; — Hab. and rep., 59 Wallace, Jno., (1) ; — Justifiable hoih., 162 „ Jno., (2) ;— Deforcement, 242.— Tholed assize, 510 „ Mich. ; — Deforcement, 242 „ Pet. ; — Hab. and rep.. 58 „ Wjll. ; — Ground tor adjournment, 507 „ Thos. Methven or; — Libel, major, 322 „ and DALZiEL;^Tirae and place, 351 „ Stewart and; — Incest, 226 Ward, Will. ; — Citation, 495 Warden. Geo. ;— P. O., 28 Wark, Drew v.; — Review, 590 Warrand, Jno. ; — Pleas in bar, 509. — Court inves- tigating sanity of accused, 509 Warren, Ed. ; — Fraud, 105 Wabkington, Elizabeth, — or Collie; — Libel, time, 336 Watson, Hel.; — Verdict, 569 „ Jane; — Libel, designation, 319 „ Jno,, (1) ;— Theft, 27 „ Jno., (2) ; — Housebreaking, 36 „ Jno,, (2) ; — Forgery, 95 „ Jos. ; — Jury, 516 „ Mary ;— Coin, 126 „ Will.;— Citation, 497 „ and Murray; — Contempt by publication, 504 „ Baillie and; — Modus, 367 ., and others, (1) ;— label, major, 323 626 INDEX OF CASES. Watson — Watson and others, (2) ; — ^Hamesncken, 188 „ (J AS.' — and others; — Invading houses, 214 „ Jno. — and others, (1); — Libel, designation, 320 „ Jnc— and others, (2);— Oath of calumny, 313 ,, Jos. — and others; — ^Assault, aggrayated, 184 „ Stevenson v, ; — Summary, 580 Watt;— Treason, 253 „ Alex. ;— Lodging productions, SOO. — Pre- liminary objections, 517 „ Dav. ;— Verdict, 572 „ Jas. ; — ^Tholed assize, 510 „ Ann, — or Ketchen ;— Theft, 30. — Statements of accused, 544 „ Thompson and ; — Declaration, 292 „ V. Home;— Theft, 51, 52 ,, Penman v.; — Summary, 583 Waugh and Ramsat; — Certificaties, 554 Webster, Jess. ; — Abortion, 176 „ Maby ; — Housebreaking, 42 „ Johnston and ; — Culp. Hom., 158 „ and others; — Witness' character, 541, 542 „ V. Teotter; — Search wan-ant, 316 Weir;— Bestiality, 2-28.— Libel, time, 336 „ Wal,; — Jurisdiction, 283 „ And. Kennedy oi'; — Inducise, 497 „ and Hull;— Coin, 127, 123 „ and others; — Breaking into piison, 248 Welsh, Jno. ;— Thjft, 33.— 1701, c. 6 ; 305 „ or HoLLAKi>3 and M'Innes;— Kobbery and stout brief, 65 „ V. M'Pherson; — Complaint, 578 WKMT.S3, Jas. ; — Contempt of court, 504 Whatman v. Ogilvie ; — Appeal, 590. — Remit to in- ferior Court 595 Wheatlt, Edm. ; — Culp. Hom., 158 Whelps, Eug. ; — Insanity, 16. — Libel, Major, 325.— Minor, 330. 331 White, Jas. ; — Witness, dumb, 522 „ Mart; — Coin, 124 „ Brash and; — Hab. and rep., 58. — Plea, 514 „ W. — and others ; — Reset, 72. — Modus, 404 „ Will. — and others; — Reset, 72 Whitkford, Jas. ; — Hamesucken, 191 Whitehead, Peebles and; — Pleas in bar, 512 Whitelaw and Bisset; — Deforcement, 240 „ Neil and; — Locus, 344 Whiteside, Reid or,^and others ; — ^Time and place, 352.— Modus, theft, 397 , Whitefield and others; — Libel, Minor, 332. — Locus, 349 Whitton or Stormonth v. Deummond; — Locus, 339.— Modus, 361.— Complaint, 579 Whtte, Thos. ; — Declarations, 560 „ and M'Lean; — Hab. and Rep., 68 „ DuFFUS V. ; — Fraud. 113 „ Speid v. ;— Mischief, 135 „ M'Kenzie and others v.; — Lewd practices, 228.— Indecent Exposure, 229. 230. — Mo- dus, 371. — Modus, Exposure, 4G5 Wicks, Hopton v.; — Complaint, 578 WiELOBTCKi, DiOKYSius ; — Modus, Supplemeutaiy facts, 477. — Productions, 552 Wight, Thos. ; — Witness' character, 541 „ Jas. — or Bryce ; — Libel, designation, 319 Wightman, Will.; — Housebreaking, 42. — Modus, 414 Wigtown (Earl of) ; — Commitment, 298 Wild and others ; — Mobbing, 207. — Modus, 453 Wilkinson andM'MiLLAN or M'Citilken or Wil- kinson ; — Locus, 347 Willhouse and others;— Justifiable Horn., 162 •Wilson. Williamson, And. ; — Crime taking effect on wrong pei'son, 3. — Attempt to murder, 165 „ Da v.; — Assault, aggravated, 182, 183, — Hamesucken, 192. — Libel, aggravation, 482. — Landed jury, 517 „ Tecs. ;— Stouthrief, aggi-avation, 67 „ Rob. Clark or ; — Contempt, 504 „ and Murphy; — Modus, Sftl ,, Thompson and; — Summary, 584 „ and others;— Theft, 23 „ V. Thompson ; — Summary, 584. — Review, 593 „ or Graham t. Linton ; — Summary, 581 Wilson, Alexs — Libel, Time, 337 „ Arch, ; — ^Violating graves, 87 „ Babbara; — Locus, 345 „ Geo. ;— Uttering, 101.— Modus, 362, 364,— Witness referring to document not pro- duced, 532 „ Hel.;— Murder, 142 „ Janet; — Housebreaking, 38 „ Jas., (1) ; — ^Assault, aggravated, 179. — In- jured party's character, 541 „ Jas., (2) ;— Declaration, 292 „ Jas,, f3) ;— Recall of OuUawry, 512 „ Jas., (4) ;— Homicide. 139 „ Jas., (5) ;— Locus, 339.— Modus, 389 „ Jas., (6) ;— Citation, 497 „ Jko,. (1) ;— Diet, 505 „ Jno., (2) ;— Culp. Horn., 1-58 „ Jos. ; — Declaration, 293; 294. — Libel, produc- tions, 485. — Access to productions, 502, — Beat evidence, 556. — Accounting for ab- sence of witnesses, 563, — Limited produc- tion of book, 565 „ Pet. ; — Marriage, 222 „ Thos. ;— Libel, Malice, 479 „ Will., (1) ; — Objection to witneK, 490 „ Will., (2) ;— Mischief, 134 „ G. and R.; — Witness, disqualified, 529. — Juryman ill, 568.— Verdict, 5G8, 572 „ Anne, — or Moore ; — Uttering, 99 „ Mary, — or Smith ; — Locus, 340 „ Thos., — or Low otTelfer; — Libel, desi^a- tion, 321 „ Elizabeth Leman or; — Tholed Assize, 510 „ Rob. Robertson or; — Libel, designation 318 „ and BANK:s;^-Juiisdictiou, 278 „ and Hopper; — Seducing sailors to desert, 263 „ and M'Donald; — Hab. and Rep., 57 „ and M'Gregoe; — Libel, productions, 486. — Productions, 553 „ and Maddon; — Hab. and Rep,, 59 „ and Ross ; — Jurisdiction, 278 „ Brown and; — Art and part, 13. — ^Witness, spouse of injured party, 520 „ Johnston and ; — Citation, 495 „ M'Donald and; — Art and part, 55 „ M'Intosh and ; — Culp. Hom., 157 „ Thomson or Murray and Bryce or ; — Rob- bery and Southrief-aggravation, 67. — Mo- dus, 331 „ and others;- Art and part, 10. — Theft, 24 „ Agnes.— ^and others; — Witness, co-accused, 523, 543 „ Dav., — and others; — Theft; drugging, 45, 199.— Libel, Minor, 333 „ Jas., — and others ;— Recalling Witness, 533 „ Jno., — and others, (1); — ^Treason, 253 „ Jno., — and others, (2);- Libel, designation, 321. — Productions, 557 „ Thos., — and others ;— Art and part, 13 „ T. Hahnat; — Review, 592 INDEX OF CASES. 627 Wilson- "WiLSON V. MoKBXSON ; — Summary, 585 „ Hare v. ; — Pleas in bar, 511 „ M'Kkan v. ;— Summary, 580, 582 „ MucKAKsiE V. ; — Witness, judge, 522 „ Crawford v., — and Jamesons; — Deforce- ment, 240.— Arrest, 286, 580. Wiltshire, Davis and; — Art and part, 11, 12. — M.uTder, 150 WiNGATE V. Brown; — ^Private prosecution, 311 WiNTRUP, Jno. ;— Dumti witness, 530 WiSHART, Jno. ; — Robliery and Southrief, 64 „ Smith and; — Art and part, 4. — Theft, 51. — 1701, C. 6; 806.— Libel, Major, 324.— Time, 336.— Modus, 379.— Modus, theft, S98, 400 Wood, Jas. ; — Attempt to murder, statutory, 168 „ Mary;- Locus, 349.— Modus, 390, 393.— Libel, productions, 485 „ Thos. ;— Gulp. Horn., 163 ,, Jas. — or Woods; — Uttering, 99 „ Jno. Bruce or; — Statements of accused, 544 „ and Dow ;— Theft, 28 „ and Ferguson; — Libel, designation, 320 „ and King;— Gulp. Hom. 154, 156 „ and Marshall; — ^Theft, 24. — Modus, theft. 401 Woods, Jas. Wood or; — Uttering, 99 „ and Young or Woods; — Modus, 375. — Mo- dus, murder, 439, 440 — Leading witness, 533. — Proof of malice, 539. — Hearsay of deceased, 549. — Plans, Models, 558 Woods and Forrests, Gammell v. Com. of; — Ju- risdiction, sea, 275 WooDWEST; — Justifiable Horn., 162 WoRTLET and Green ;~Ol!Jection to witness, 491 Wright, Edg. ;— Robbery and Stouthrief, 64 „ Rachel; — Plagium, 29 „ Will, (I) ; — Housebreaking, 42 „ Will. ("4 ; — Murder, provocation, 146. — Pre- liminary objections, 517. — Proof of malice, 539. — Statements of accused, 543 „ and Johnstone; — Housebreaking, 35 ,, and Moffat ; — Libel, major, 328 „ Fraser and;— Libel, Time, 336. — ^Witness, engraver, 556 ,, Marshall and; — Blasphemy, 232 „ MoNTEiTH and; — Presence of prosecutor, 505 „ Stuart and, — or Stuart; — Theft, drugging, 45, 199.— Libel, major, 324, 325, 328.— Mo- dus, 370, 383. — Modus, draggmg, 450.— Li- bel, aggravation, 481 „ and others ; — Art and part, 55 WrLiE, Geo. ;— Proof, declaration, 560 „ Jno.;— Assault, aggiavated!, 179 -Tule. Wtlie, Will, (1) ;— Jury, 516 „ Will. (2) ;— Statements of accused, 544 „ Johnston and;— Libel, time, 337 „ Okmond and; — Gulp. Horn., 157.— Deceased's precognition, 562 „ and others; — Robbery and Stouthrief, 65 Willie and Richardson; — Libel, time, 835, 337. — Time and place, 352 „ and Strang; — Man'iage, 222 Wynne and others ; — Proof, declaration, 659 Yates, Elizabeth ; — Contempt, 504 „ and Paekes ;--Rape, 194, — ^Pergon as pro- duction, 550 Yeaman v. Tod ;— Locus, 339.— Review, 591, 593 YORSTON and others ; — Modus, 355 Young, And. ;— Theft, 28 „ Dav. (1.) ;— Cursing parents, 187.— Public prosecutor, 314. „ Dav. (2>; — Fireraising, 128, — Separation of charges, 513 „ Rob. (1) ; — Protection from diligence, 506 „ Rob. (2) ;— (3ulp. Horn., 157. — Neglect of Duty, 220.— Modus, 384 „ Rog. ; — Pardon, conditional, 696 „ Thos. (1); — Private prosecution, proof of right, 312 „ Thos. (2) ; — Assault, aggravated, 179 „ Jno., — or Thompson or Dav. Marshall ; — Libel, designation, 319 „ and Morrison ; — Execution of Citation, 498 „ or Gilchrist and Hislop; — Lockfast, 43 „ Edgar and; — Locus, 344, 347 „ McDonald and; — Citation, 495 „ And., — and others ; — Assault, aggravated, 185 „ Rob., — and others; — Separation of charges, 513 „ Henderson v. ; — Theft, 28 „ Faieweather and, — or Faieweather ; — Cruelty, 197 „ Woods and, — or Woods (See Woods). „ V. Scott; — Restriction, 583 „ Hood V. ;— Fraud, 104, 112.— Sentence, 576 „ Kennedy v. ;^Assaxilt, 17C. — Review, 690 y Smith v. ; — ^Night poaching, 218 „ Kelly or Henry v. ; — Modus, theft, 400 „ Burns v. Hart and; — Reset, aggravation, 73.— Proof of character, 540 YouNGEE, Will. ; — Special Defence, 502 YuiLL and others ; — Libel, aggravation, 482 Yule, Marg, ; — Deforcement, 243 „ Mart; — Deforcement, 243 INDEX. Abetting- Abetting. — See Art and Part. Abduction. — Of women, 196 Of voters or witnesses, &o., 196 Jurisdiction in, 281, 282 Modus of libel for, 449 Assault with ittention to abduct, 180 Abominable. — See Indecent Practices- Abortion. — Pbocuring — murder if death ensue, 143 Procuring by any mode, 175 With felonious intent, 175 "Woman may be guilty, 175 Modus of libel for, 446 Attempt punishable, 175 Question whether the woman can be charged with attempt, 175, 176 Absconding. — Bankrupt absconding with property, 117 Of accused may be averred in libel, 478 Witness arrested where fear of his, 499 Absence, Trial in — ^Not competent except under Statute, .582 And where competent, error in date ,of citation fatal, 582 Absolvitor. — Not pronounced in accused's absence, 674 Except in special case, 574 Aesteacting boob to obtain secrets — is it theft? 29, 30 Act of Adjournal. — 17th May 1827, Cita- tion, 494 Lodging productions, 499, 503 Special defence, 502, Sheriff-Court Induoise, 578 1st Aug. 1849, Sentence, 576 Accessary. — See Art and Part. Accessary after fact not recognised, 13 Except in treason, 13 Accusation, False, 106, 203, 204.— tct/ Trustee has only power to prosecute under statute, 311 Creditor ranked may prosecute, 311 Modus in, 420, 421 Banns. — Marriage without, 222 Want of at first marriage, no defence in bigamy, 223, 224 Bakon-Bailie. — Power to grant warrant to arrest, 285 To take declaration, 290 Base Coin.— (118 to 128).— .See Coin. Bastard.— No incest in case of, 227 Cannot prosecute for injury to relative, ■ 312 , Baton. — Display of Blazon and, 242, 243 Beating Parents. — Capital offence, 187 Parents by affinity not included, 187 Nor grand parents, 187 Assault must have been violent, 187 Question whether gross outrage by parent elides statute, 187 Modus in libel for, 447 Best Evidence. — Absence of, to be accounted for, before secondary allowed, 535 Hearsay admissible where this done, 548 Bestiality, 228 Modus, ditto, 464 Bigamy. — Slatutory and common law of- fence, 223 Want of banns at first marriage no ex- cuse, 223, 224 Neither marriage need be regular, 224 Question — marriage by promise, eid>. cop., 224 Or habit and repute, 224 First marriage-must have been binding, 224 And be subsisting, 226 Dependance of divorce no defence, 225 Decree of divorce a defence, 225 Although decree afterwards set aside, 225 Reasonable belief of death of spouse, 225 Question where first spouse impotent, 225 Second marriage need not be of a la%vful kind otherwise, 225 Can witnesses be art and part, 6 Time of both marriages must be libelled, 338 Latitude of time as to first, 838, 339, and note 1 634 INDEX. Bigamy — continued. Place of both must be libelled, 348 Latitude permissible, 348 Latitude of modus where long interval from iirst marriage, 390, 462 Modus, form of charge, 460, 461 Form where both before married, 461, and note 2 Ceremony need not be described, 461 " Lawfully married " sufficient, 462 Knowledge that first marriage subsisting, must be distinctly averred, 462 First spouse not a competent witness, 520 Blasphemy. — Spoken, 231 Published, 232 Punishment of, 232 Blazon and Batos. — Display of, 242, 243 Bleachfields. — Theft from, capital offence, 61 Punishment always restidoted, 61 Beset, ditto, ditto, 73, 74 Blood, Coerdption of.— For treason, 256 Bones, Fractuke of. — Aggravation of assault, 182 Books. — Publishing obscene, 231 Modus, ditto, 466, 467 Publishing blasphemous, 232 Modus, ditto, 467 Books. — Kept by accused, evidence, 563 Borrower. — May be guilty of theft by appropriating, 48, 49. — See Theft, Letter g. Boy.— Kape by, 193 Lewd practices towards young, 228, 229 Though above puberty, 229 Debauching mind of, 228 Breach of Duty. — (218 etseq.) — See Neglect ofDvty. Breach of Peace — Violence not essential, 213 Challenging to fight, 213, 214 Question as to posting as coward, 214, note 1 Disorderly conduct in church, 214 Disturbing public meeting, 214 May be committed in private house, 214 Invading houses, 214 Duelling, 214 Attempt to pick pockets, 214 Insulting language alone not, 214 Modus in libel for, 454 Breach of Trust. — Distinction between theft and, 53, 54 Many cases now held theft, 74, 75 Generally prosecuted at common law, 74, note 2 Limited ownership, pledge, loan, &c., 75 Duty to account, 75 Agent in charge of branch shop, 75 Pawnbroker, factor, treasurer, 7G Bigamy— ^-Burden of Proof. Breach of Trust — corttinued. Fine paid to constable, 76 OfBcer taking proceeds of poinding, 7 Falsely taking credit for sums as paid on employer's behalf, 76 P. 0. official taking money for P. 0. order, and not forwarding order, 76, 77 Party receiving slump sum to divide between several persons, 77 As distinguished from one sum to be delivered m forma ipecificlt, 77, and note 3 Concealment of defalcations not essen- tial, 78 Trust itself may result from fraud, 78 Pretended officer executing warrant of sale, 78 Partner using firm's signature to obtain money, 79 P. 0. official making overcharge, 79 Bookbinder taking books, more properly theft, 79 1^ V } Locked box taken by custodier, also theft, 80 Aggravations, 80 Br. of Tr. by official, 80, and note 5 Punishment, 80 Cashes where unusual latitude in libelling time allowed, 336 Ditto, Locus, 347 Modus for:n of charge, 406 Form of money not described, 406 Where accused got cheques and cashed them, libel should state whether he authorised to cash them, and where cashed, 406, 407 Latitude in description of owner, where nature of trust implied accused's know- ledge, 407 Breaking in to arrest Offender. — Powers of officer without warrant, 284 Citizen may not break in, 286 Admission demanded first, 288 Eight to break in applies to all houses, 288 And fastened places within house, 288 Breaking part op House. — With intent to enter and steal, 85 Security must have been overcome. 86 Breaking Prison— (246 etseg.). — See Prison Breaking into Prison To rescue, 248 Question whether attempt relevant, 248 Bribed Witness, 524 Bribery, Election, 267, 268 British Ship.— Jurisdiction over, 276 Neglect of duty by crew of, 220 Burden of Proof. — On accused of belief of right to take what he is alleged to have stolen, 25 On accused of proving excuse in coining offences, 120 to 126, passim. INDEX. 635 Burden otProof- BoEDEN OF Pboof— corfraweA On prosecutor to prove true facts in per- jury, 235 In ordinary case on party making alle- gation, 633 But prosecutor not called on to prove a negative, 533 Burden shifted byjmmayacie proof, 538, 534 BuBOH. — Citation at cross of, 495 Bdkglaet (34).— ;See BousebreaJimg. BuKSiKG Ship.— 132 Bye-Laws may be quoted, though statute authorising them not quoted in major, 327, 863 Calumny. — Oath o£ in private prosecution, 313 Capital Offences. — Not bailable, 299 List of, 299, note 6 Capital Sentence. — Eecorded and pro- nounced in old form, 576 Must fix date for execution, 576 "Within what period, 576 High Court may alter day fixed, 677 Cannot be carried out after time fixed, 586 Eespite of, 586 Caedsharping. — 106 Casting away Ship. — 132 Caution. — For good behaviour, 21 Private prosecutor must find, 313 In appeals, 589, 590 Cautioner.— May object to citation, 507 But not in bar of tugitation, 507 Ceremonial. — Interchange of consent with- out, — not clandestine marriage, 223 Certificate of Banss. — Marriage without, 222 Certificate. — Granting false — to be used at trial — a contempt of Court, 605 Certificates of Character. — Admissible after plea of guilty, 516 But not if commenting on facts, 516 Could they be received without consent? 554 Incompetent even of consent if case goes to trial, 554 Challenge to fight— breach of peace, 213, 214 Challenging Jurors. — 516 Chascelloe of Jury. — Name need not be recorded, 568 Character. — In mitigation of punishment, , 20 Bad character of female does not exclude rape, 194 Proof of, competent where accused pleads guilty, 515 And certificates admitted, 616 Good character may always be proved, S40 -Circuit Courts. Chakactee — conUnued. Prosecutor may not attack character, unless accused try to set it up, 540 Attack on injured party's character on notice, 540 Prosecutor may ask generally as to peaceable character of injured party, 640 Or respectability of female abused, 640 Cross-exam., and evidence as to female's character, 540, 541 Character of other witnesses only assail- able on matters affecting credibility, 541, 542 Charge by Judge. — 567 Cheating (103 to 114). — See Falsehood and Fraud. Child.— Under 7 exempt from punishment, 14 Under 14, males, 12, females, exempt from sentence of death, 14 This rule not absolute. 14, note 3 Inciting infant to commit offence, 6 A,ttempt to have connection with, im- plies assault, 179, 180 Indecent assault on, 180 Especially by person in charge of child, 188 Connection with child under 12 is rape, 192, 194 Exposing and deserting, 197, 198 Placing in danger, 198 Modus in libel for such offences, 449, 450 Lewd practices towards, 228, 229 Debauching mind of, 228, 229 Modus in libel for, 464 A competent witness, 618 If found to understand obligation to speak truth, 518, 619 No fixed limit as to age, 519 Age at time of trial the test, 519 Toung child not sworn, 630 Above 12 may be, 530 But older child may be examined with- out oath, 630 Proof of statement by child de recenti, to corroborate his evidence, 547, 548 Child-Stealing (60). — See Plagiwm, Theft, Letter c. Child-Stripping. — Aggravated theft, 45 Church. — Disorderly conduct in, 214 Circuit Courts.— 279, 280, 281 When held, 280 One judge may act, 280 Two judges sit separately in Glasgow, 280 Power to alter Circuits, 280 Division of Circuits, 281 Jurisdiction of, 281, 282. — (See Jtatid- ary.') 636 INDEX. CiKCUMSTANTiAL EviDEUCE. — May be suffi- cient to convict, 566 Citation of accused, warrant for contained in Crimiual Letters, 492 In case of indictment, diligence issued by Clerk of Court, 492 On production of indictment or copy signed by Crown agent, 492 Execution by macer, messenger, or by Sheriff-officer of county, 492 Must be truly vested, 492 Need not have warrant with him, 492 Service of full copy, 493 Notice of citation attached, 493 Will in Crim. Letters not served, 493 Lists of witnesses and assize served, 493 Each accused receives copy, 493 Copy must be accurate, 493 Clei'ical error not fatal, 493 Omitting prosecutor's name fatal, 493 Or Geo. iii. for Geo. iv., 493 Copy must bear to be signed, 493, 494 Also inventories and witness' list 494 Eepresentation of signature on each page not essential, 494 In Sheriff Court, witness list need not bear to be signed, 494 Assize list need not bear to be signed, 494 Service of lists must be at time of service of libel, 494 Personal citation, 494 Delivery within accused's house, where he cannot be found, 494, 495 If no access, copy fastened to door, 495 House must be true dwelling, 495 Citation bad, if accused left house 40 days pi-evious, 495 Citation at cross after citation at dwell- ing, 495 Must be in true burgh, 495 Accused may fix place where he may be cited, 495 Hour of citation at cross for capital crime, 495 Wholly edictal citation, 495, 496 Citation at last dwelling and edictally, 496 Eorm of short notice, 496 No other competent, 496 And must be strictly followed, 496 Officer need not sign libel, 496, 497 Position of notice immaterial, 497 Inducise, 497 Execution of Citation, 497 Names offence generally, 497 Without aggravation, 497 Signed by officer, adding quality, 497, 498 Execution cannot be altered after first diet in short notice, 498 Circtunstantial Evidence. Co-Aconsed. CiTATioif of Witnesses and Assize, 498 Warrant for citing prosecutor's writ and assize, 492 Accused gets Letters of Exculpation, 498 On bill passed of course, 498 No fixed inducisB, 498 Warrant of any Court good in all Scot- land, 498 Citation beyond Scotland, 498 Second diligence endorsed by superior Judge, 498 Where beyond Scotland, 498 Officer need not have warrant with him, 498, 499 Nor witness to citation, 499 Written execution returned, 499 Founded on on failure to appear, 499 Apprehension of witness likely to ab- scond, 499 Protection to witness from civil diligence, 499 CrrizBX. — Executing warrant, can he be de- forced ? 242 Witnessing serious crime, may arrest, 284 Has power to arrest under statutes, 285 Warrant may be addressed to private, 286 Civil Suit. — Proceeding in — as evidence on crim. charge, 561 Case of nature of, — mot reviewable by Justiciary Court, 588 Except where they have radical jurisdic- tion under statute, 588 Clandestine Injury to WpiiEN, 195, 196 Personating husband, 195 Taking advantage of women asleep, 195 Modus in libel for, 448, 449 Clandestine Maekiage (222). — See Mar- riage. Clergyman Personating, 104 Assault on, 183 Marriage by person not a, 222 Liable for ordinary offences, 273 Are statements of accused to clergyman privileged, 545 Clerical Ekeok. — In declaration, 295, 296, 564 In service copy of libel, 493 In bankruptcy proceedings produced, 385 Close Confinement. — How long legal after arrest, 297 Co-Accused cannot be witnesses for each other, 522, 523 Unless trials separated, 623 Accused who pleads guilty may be wit- ness, 523 Provided plea tendered at first, 523 Case abandoned against c. a. during trial, no absolute right to examine him, 523, and note 5 INDEX. 637 Coin — Coin. — Queen's current coin — ^meaning of, 118 " False, &c., coin " — meaning of, 118 Includes true coin tampered with, 118 " Having " article, includes having it in another's possession, 118, 119 Whether for his own use or another's, 119 All offences complete, though counter- feiting incomplete, 119 Uttering base foreign gold or silver, 119, —2d offence, 121,— 3d, 124 Uttering base British gold or silver, 119 Uttering base ditto, and at same time possessing similar coin, or within ten days again offending, 120, 121 Uttering base ditto by person pre- viously convicted of serious offence, 124 Uttering piece of metal as gold or silver coin, being of less value, 120 Having 3 or more base copper coins with intent, 120 Having 3 or more base British gold or silver coins with intent, 121 Having 3 or more base 13ritish gold or silver coins, after conviction of serious offence, 124 i Having gold or silver taken from British coin, 121 Defacing British coin, 120 Impairing British gold or silver coin, 123 Counterfeiting foreign inferior coin, 120, —2d offence, 122 Counterfeiting British copper coin, 121, 122 Counterfeiting foreign gold or sUver coin, 122 Counterfeiting British ditto, 123 Exporting or shipping counterfeit British coin, 120 Importing base foreign gold or silver coin, 122 Importing base British ditto, 124 Trafficking in base British copper coin. 122 Trafficking in base British gold and sil- ver coin, 123, 124 Gilding, silvering, Ac, pieces of metal, with intent, 123 Gilding, &c., silver coin, with intent, 123 Gilding, silvering, &o., copper coin, with intent, 123 Making, mending, trafficking in, &c., apparatus for base copper coin, 122 Making, mending, trafficking in. Sec, apparatus for base gold and silver coin, 124 Eemoving articles from Mint, 125 Tendering, putting off, &c., need not be " as genuine," 126 2 T •Company, Coin — continued. Person receiving good coin, banding back a bad one, and demanding another good one, ] 26 Question whether one act can be charged as "offence," and as "high offence," cumulatively, 126, 127 Eepeatedly tendering same coin is not repeated uttering, 127 Uttering and possession — possession must be of other coins than those ut- tered, 127 No substantial interval necessary to constitute repeated uttering, 127, 128 Burden of proof of excuse on accused, 120 to 125, passim. Punishments, 125 Repeated uttering may be tried in Courts of place of either offence, 274 Coining offences in Scottish ships, juris- diction, 276 Or in ships touching at Scotland, 276 Modus of coining charges, 424 to 433 COLLATEEAL ClKCUMSTANOES. — Libelling of, (359 et seq.") — See Modus, Letter b. Written evidence not necessary to prove, 653 Parentage, age, marriage, property, offi- cial position, &c., 553 Colonies — Indorsation of warrants in, 287 Sending back person apprehended in colony if not indicted within 6 months, 309 Combination. — In mobbing, 205 CoMJiiTMENT. — For further examination, 297 Must be for reasonable time, 297 Close confinement how long legal, 297 For trial — warrant, 297 Describing accused, or referring to in- formation containing description, 297 Specifying offence, 297 Must proceed on a signed information, 297 These solemnities indispensable, 298 Exceptions of committals for some jjetty offences, 298 And direct committals for contempt, 298 Or for prevarication or perjury, 298 WaiTants for commitment from Justi- ciary always direct, 298 But only at instance of Lord Advocate, 298 Commitments by Privy Council, 298 Double of warrant served on accused, 298 Kot entitled to double of petition, 298, 299 Common Juroks. — Proportion of special to, 515, 516 Commons. — Jurisdiction in case of members of House of, 272 Company — Cannot prosecute as such, 310 638 INDEX. Compassing Sing's Compassing Kino's Death. — (251). See Treason. Compensation of Debt. — Plea of, no defence in deforcement, 243 Complaint. — Essentials of, 578, 579 Trifling informalities disregarded, 579 Compulsion. — A good defence, 16, 17 Case of wife or child, 16, 17 In case of unlawful oaths no defence un- less oath afterwards revealed, 261, 262 Concealment of Effects by Insolvent. — (116, 117.) See Fraud by Insolvents. Concealment of Pregnasct. — Definition of, 169 Disclosure to father sufiicient, 169 Extorted disclosure sufficient, 169 Woman may be married or single, 169 Absence of studious concealment not enough, 169 But absolute statement not essential, 169 Conduct of person charged with being pregnant, 169, 170 Jocular denial, 170 Question where conduct alone indicates admission, 170 Woman openly making clothes, 170 Disclosure at early period sufficient, 170, 171 Concealment for whole period, 171 Question as to disclosure for purpose of getting rid of child, 171, 172, 173 Pregnancy need not have continued whole nine months, 173 Prosecutor need not prove full time, 173 Duration making living birth possible, 173, 174 Premature labour, 174 Still-birth does not elide statute, 174 But birth of "child " essential, 174 Failure to call for aid, 174, 175 Concealment must continue to child's death, 175 Unless it be missing, 175 Punishment, 175 Latitude of Locus, 349 Modus in libel for, 445 Sex of child need not be stated, 445 Nor that child full-grown, 445 "Found dead" or "amissing," 445 Concert. — Charge of acting in, with others not under trial, 363 Or with deceased person, 364 CoNCOUKSE of public prosecutor, 313 Essential, except in certain statutory cases, 313 Cannot be refused, but on cau.se shown, 313 Confession. — Assault to extort, 180 Of offence not sufficient ground for con- viction, 565 Even though made in declaration, 565 Death Conviction. Confinement, Close. — How long legal, 297 Confiscation. — Of movables in murder, ISO In deforcement, obsolete, 245 Of heritage in treason, 256 Conspiracy to commit serious crime, 269, 270 To murder, 269 To commit housebreaking, 269 To accuse of crime, 269 To concuss masters or workmen, 269 To defeat justice, 269 To alter laws, 269 Latitude of Locus in, 349 Where threatening letters an incident of conspiracy they need not be libelled at length, 368 Hodus in libel for, 476 Latitude as to documentary evidence in, 564 Constable. — See Police Officei — Officer CoNsirruTiON. — Conspiracy to alter, 269 Contempt of Court. — Direct commitment for, 298 Accused, witness, or jui-yman appearing drunk, 504 Behaving rudely, 504 Person, breaking out of witness room, 504 Publishing comments, 504 Destroying articles of evidence, 504 Animadverting on Court, 505 Granting false certificate, 505 Prompting witness, 505 Eefusal to be sworn, 529 Or to answer question, 530 Continuing Diet, 505 Conveyance of prisoners under indorsed warrants, 288, 289 Convict ax Large without excuse, 248, 249 Modus, ditto, 474 May be remitted back to punishment on summary petition to High Court, 587 Convict Sick, may be allowed alleviation of imprisonment, 586 Conviction — Previous — Must have been before offence under trial, 18 And for similar offence, 18, 185 Though not necessarily named in exact same words, 18, 19, and note 2 But though conviction contains different aggravations, still it may be used, 18, 185 But only as conviction of substantive offence, 18 ^ Where conviction has similar aggrava- tion attached, this an additional ag- gravation, 18 Conviction must be Scottish, 19 Except in statutory cases, 19 English conviction of theft received, 19, 20 Theft, prev. oonv. of, b6.—See Theft, Let- ter). INDEX. t)S9 Conviction- Conviction — contmued. Kobbery, prev. oonv. of theft not admis- sible in, 66 Stouthrief, question ■whether prev. Conv. of theft admissible in, 66, 67 Prev.conv. of stouthrief, question whether _ admissible in theft, 56 Eeset, whether preV. oonv. of reset of rob- bery admissible in reset of theft, and vice versa, 72, 73 Prev.conv. of theftnot competentin reset, 73 Nor in housebreaking with intent, 85 Prev. conv. in night-poaching oases, 218 Description of, in libel, 486 Punctilious objections disregarded, 486 Convictions under different names, the names should be given, 486 But this not imperative, 486 Conviction in sheriff and jury case, 486 Form in coining case, 486, 487 Conviction, Summary. — 584, 585 Copy, Libel. — (493, 494). See Service Copy. CORPOKAL PdNISHMENT, 21 Corporate Body cannot prosecute as such, 310 Except under statute, 310 Correction of Verdict, 668 Not competent after verdict recorded 568, .'i69 Corrupt Conduct by officials, 234 Bribe-taking and oppression, 234 Punishment includes deprivation of office, 234 And infamy. 234 Corrupt Practices at Elections — ^Bribery, 267 Intimidating, detaining, or abducting, 268 Corruption of Blood. — i'or treason, 256 Costs. — See Ea^ejises. Counsel. — Counselling to commit offence, 5 Infers guilt of offence though given out of Scottish jurisdiction, 10 Mu^t be serious, 5 And have real connection with the act done, 8 Must be to act lively to have such result as has happened, 6, 7 Must remain unwithdrawn, 9 But if withdrawal too late, guilt remains, 9 Counsel to rob and death resulting, 7 Command to subordinate to do act, 5 Distinction between encouragement and direct instigation, 6 Bribe or promise of reward for crime, 6 Guilt adheres though person counselled hire third party to commit offence, 7 Or though offence take effect on wrong person, 7 Counsel combined with assistance- 7 •Culpable Homicide. Co unsel — continued. Character of the counsel may be indicated by the assistance, 1, 8 Counterfeit Coin ^See Coin. Counterfeiting Great Seals. — Treason, 265 Court of Justice. — Assault in, 182 Obstructing, 245, 246 Court of Justiciary.— (276 et sej.) See Justiciary — Circuit Court Creditor ranked may prosecute Fraudulent Bankruptcy, 311 Some creditors should be named in libel for insolvency frauds, 423 Crime. — False accusation of (106, 203, 204.) See False Accusation Conspiracy to commit, 269 Procuring commission of, 270 Modus, ditto, 476 Prescription of, 308, 309 Criminal Letters. — Form of libel in Sheriff Court, 317 Competent also in Supreme Court, 317 Form of, 317 Will not served on accused, 493 Crim. Letters on six days inducise, 578 Last letters. See Last Crimmal Letters For general rules of the Libel, see Indict- ment Cross. — Citation at, 495 Must be ajter citation at dwelling, 495 Cross examination. — Leading competent in 633 Latitude as to relevancy of questions, 535, 536 Cruel Treatment. — Of young or weak per- ■ sons, culp. horn, if death ensue, 154 A serious offence, 196, 197 Aggravated where offender the natural custodier, 197 Or where injury has resulted, 197 Or the mind been injured, 197 Latitude of time in libelling in case of child, 336 Modus of libel for, 449 Culpable Homicide. — Definition of, 160 Three classes of, 150 Intentional killing, 150, 161 Either by rashness in retaliation or kill- ing to prevent injury, 151 Or by rashness in exercise of power to inflict death, 151 Conductmust be result of injury causing perturbation, 151 Killing housebreaker, 151, and note 3 Husband killing seducer of wife take Hagrante delicto, exception to rule of reasonable dread, 152 Means of escape from danger not used, 152 Or danger truly over when death in- flicted, 152 64|0 INDEX. Culpable Homicidi Culpable Homicide — continued. Killing In self-defence, where attack of deceased caused by accused, 152 Officer hastily firing on prisoners, 153 Magistrates hastily firing on mob, 153 Death from minor injury^ 153 All degrees of violence included, 153 Desertion of child, apparently with small risk to life, 154 Administering noxious matter for frolic, 154 Giving maniac or child drugs, 154 Reckless use of firearms or fireworks, 154 Cruel treatment of young, infirm, and helpless persons, 154 No defence that deceased was weak and sickly, 155 Any blame constitutes the crime, 155 Husband by violence causing wife to squeeze child in arms, 155 Causing horse to run off with rider, 155 .Question in case of person throwing him- self into water from dread of accused, 155 Neglect of Duty, 155, 156 Any blame sufficient, 156 Exceeding duty in coi-poral chastise- ment, 156 Eash driving, 156 Driver quitting vehicle, 156 Giving reins to unskilled person, 156 Eailway and nautical officials, 156, 157 Managers of machinery, 157 Ordinary operation requiring special caution, 158 Defective building, banking, &c., 158 Careless dispensing of drugs, 158 Folding-up bed with child in it, 158, 159 Act of accused need not be sole cause of death, 159 A. leaving cart, and B. driving furiously past and startling horse, 159 Driver giving reins to another, 159 Druggist employing unskilled assistant, 159 Act of accused must be directly connected with death, 159 Driver improperly taking person on train, and train accidentally going off rails, 159, 160 Where person improperly on train, and accident caused by fault, person in fault responsible, 160 Not an excuse that accused obeyed supe- riors, 160 Contractor guilty, it allows workmen to be careless, 160 Accused not free, because within bye- laws, 161 Punishment, 161 Modus in libel for, 441, el seq. Declaration. Culpable Homicide — continued. Eeckless driving or steering, general statement sufficient, 442 Eeckless dispensing of drugs must be minute in averment, 443 Latitude in stating exact cause, 443, 444 Culpable Neglect of children or infirm . person, 196, 197 Of duty, 218, et seq. Culpably and Eecklesslt. — Words ex- pressing condition of oflfender, 371 Such words cannot confer relevancy on a charge, 371, 372 Culpable and Eeckless Pieeraising. — 131 CuKKENCT. — See Coin CuEsiNG Parents. — Capital offence, 186, 187 Parents by affinity and grand-parents not included, 187 Must amount to bitter execration, 187, 188 Case of person intoxicated, 188 Cursing need not be in parents' presence, 188 Modus, 447 Customs Offences.— (264 et seq.') S»e Smuggling. Cutting.— Statutory offence, 166, 167 Com. law assault by, 181 Damages. — Private prosecutor may be sub- jected in, 313 Dangek. — Placing infant in, 198 Danger to Life. — Aggravation of assault, 182 Deaf and Dumb. — Accused, mode of ex- amining, 292, 293 Interpreter sworn, 508 Knowledge of witness, 521, 522 Sworn through interpreter, 530 Or not put on oath, 630 Alphabet or gestures, 532 Death. — Seasonable belief of — defence in bigamy, 225 Debauching Children, 228 Deceased. — Hearsay of, 548, 549 Deposition of, 561, 562 ' Though not inj ared party, 562 And not in fear of death, 562 Need not be on oath, 662 Taken by respectable citizen, 562 Declaration. — Any magistrate may take, 290 Even baron-bailie, 290 Temporary Sheriff-Sub., 290 But not Sheriff-Clerk, 290 Magistrate must be present, 290, 291 Not merely when read over, 290 Magistrate falling asleep, 290 Prisoner sane and sober, 291 Magistrate sees to this, 291 INDEX. -l DeolEffation- Declaration — contirmei. Must be Toluntary, 291 Not induced by promises, 291 Promise by injured party will not ex- clude, 291 But by superior police ofScial fatal, 291 Advice from Fiscal, 291 Magistrate must not induce, 292 Must inform him of charge, 292 And warn him he may decline, 292 That what said evidence, 292 Accused remaining silent, 292 Befusal to answer, 292 Written by neutral party, 292 Interpreter, 292 Deaf and dumb accused, 292, 293 Exam, must be fair, 293 But may be lengthy, 293 Questions asked about articles, before shewing them, 293 Signed by accused, 293 What if cannot or will not sign, 293 Declaration emitted on two days, is one signature sufBoient, 293 Articles shewn, 293, 294 Two witnesses essential, 294 Must know the language, 294 Witnesses sign last page, 294 Need not add "witness," 294 Taking d., how long legal, 294 Be-exam., when proper, 294 Prisoner may ask re-exam., 294 Previous d. must be read, 294, 295 Unless charge be different, 295 , Copy of iirst being read, 295 When must first be reali, 295 Erasures or deletions in, 295 Clerical errors in, 296, 296 Cautions, &o., not stated in, 296 Form of libelling d., 483 Signing must be averred, 483 What needf b1 as to signing, 483, 484 Libelling several declarations, 484 Cross-exam, as to statements made in a d. competent, 543 D. must be sworn to at trial, 558, 559 Unless admitted, 559 Proper witnesses to prove, 659 Articles mentioned, how proved, 569 Articles must be produced, 659 Each d. to be proved, 659 All must be produced, 560 One oast, rest may be read, 560 But prisoner may have that one read, 560 D. proves its contents, 560 Can they be challenged ? 660 Evidence against prisoner, 560; 561 Prosecutor alone can use, 661 D. of alleged maniac, 561 D. of wife, used in trial of husband for false accusation, 662 ■Desertion of the Diet. Deed.— Vitiation of, 107, 108 Modus, ditto, 420 Destroying, 108, 109 Modus, ditto, 420 Assault to compel granting, 180 May be hamesucken, 191 Deer.— Theft of, 23 Defacing Coin, 120 Defaming Judges, 203 Deforcement. — Definition of, 240 Warrant regular, 240, 241 Though previous proceedings bad, 240, and note 6 No warrant, revenue cases, 240, 241 Unless duty requires warrant, 241 Eescue of military prisoner not deforce- ment, 241, 242 Officer duly vested, 242 Can citizen be deforced ? 242 Executing solemn duty, 242 Injury before or after not d., 242 Attack on approaching, 242 Officer acting correctly, 242 Making known office, 242 Unless known to offender, 243 Notifies errand, unless known, 243 Shews warrant on demand, 243 But not after execution, 243 Must act legally, 243 Breach of local usage no matter, 243 No defence payment tendered, 243 Unless officer empowered to receive, 243 Nor prepayment or compensation, 243 Unless discharge produced, 243 Acts must relate to duty, 244 Violence not essential, 244 Menace, 244 Looking up in room, 244 Passive resistance, 244 Officer succeeding, no d , 244, 245 Submission after successful resistance, 246 Escheat of movables for d., 248 This obsolete, 245 Who may prosecute for, 311 Modus in libel for, 471, 472 Delay in bringing to magistrate, 288 Prevention of d., 302, et seq.—See Rim- ning Letters. At request, under 1701, C. 6 ; 307 Of trial, 507 , As a bar to review, 691 Deletion in DECLARAnoN, 295 Delusions may not free from punishment, 16 Nor exclude witness, 521 Deposition by deceased, 561, 562 By living person, 562 Depute Advocates, 314 Deputy, Prosecution by, 310 Desf.rtion of the Diet, 508 Pro loco et temp.^ 508 Effect of, 508 642 INDEX. Desertion of the Dbsbbtion of the Diet— continued. How long competent, 608, 517 Simplidfer, effect of, 508 If prosecutor moves it, 508 Of "libel," effect of, 508 Desertion. — Seducing Eoyal Forces to, 262, 263 Desertion of Infants, 197, 198 Injuries from, 197, 198 Designation of Accused (320 et scj.) — (See Indictment Letter a.) Of other persons (373 et seg.) — See Modus Letter g.} Destroying — letters, newspapers, &o., 81, 82, 83 Deeds, 108, 109 Modus, ditto, 420 Ship, 132 An offence at com. law, 132, 133 Is it per se a crime? 133 Modus, destroying ship, 437 Evidence, may be contempt, 504 Diary of accused, evidence, 663 But not another's, 563 Party dead, diary may be evidence for accused 563, 564 Diet is peremptory, 505 Cannot be called sooner, 505 Not continued, falls, 505 How continued, 505 One judge may continue, 506 Gi'ouiuls for continuing, 507 Desertion ^0 loco et temp, 508 How long competent, 508, 517 Is in discretion of Court, 608 Desertion simplidter, 508 If on prosecutor's motion, 508 Desertion of the "libel," 508 Diligence to recover writings, &c., 315 Both parties may have, 316 How long competent, 316 Letters of, how issued, 492 Dischakging Firearms (166, 167). — (See Murder, Attempt.) Disorderly Conduct in church or meeting, 214 Divorce. — Defence in bigamy, 225 Though afterwards set aside, 225 Dependence of, no defence, 226 Dogumknts. — Vitiation of, 107, 108 Destruction of, 108, 109 Mrdus, ditto, 420 Libelling documents, (377 et seq.) — (See Modus, Letter i.) Double — Serving d. of warrant, 298 Under whose hand, 298 Drilling, Illegal, 262 Driving — Furious or reckless, 219, 220 Drown, Attempt to, 166, 167 Drug. — Taking to abort., 175, 176 Drugging — Aggravates theft, 45 Is it robbery ? 45, and note 5, 46 Diet — Escheat. Drugging — continued. Children or maniacs, 154 Connection after d., rape, 193 Is drugging jDer se a crime? 198, 199 Intent to steal, 199 To prevent lawful business, 199 Modus in libel for, 450 Duelling. — Murder, though deceased the challenger, 142 A breach of peace, 214 Dumb.— Accused, how examined, 292, 293 Interpreter, 608 Knowledge of d. witness, 621, 522 How sworn, 630 Sometimes not sworn, 630 Alphabet or gestures, 532 Duty.— (jSee Neglect ofButy^ Description of in libel, 378, .879 Dwelling. — Citation at accused's, 494, 495 Ecclesiastical Court. — Oath before, — no pei-jury, 236 EccLESLASTicAL OFFENCES. — Not withiu pro- vince of orim. Courts, 273 Edictal Citation, 495, 496 Effusion of Blood. — Aggravation of as- sault, 182 Eleotoks.— Abduction of, 196 Threatening, 202 Bribing, 267, 268 May sue voter for false oath, 810, 311 Embezzlement, 74 to 80 (See Breach of Trust.) Of letters, newspapers, 81, 82, 83 Emissio not essential in rape, 192 Employers. — Assault to concuss, 18Q Conspiracy to concuss, 269 Enchantments. — Pretence of, 106 Enclosure of Jury. — Effect of intercourse with others, 667 The rule applied reasonably, 668 Enemies.^ — Adherence to king's (254, 256). — (^ee Treason, Letter c.) In Britain under safe conduct may be guilty of treasou, 256 Enemy of Britain a competent witness, 523, 524 Englano. — Conveyance of prisoners from, 288 English Treason Law. — Scotch assimi- lated to, 260 Engravers. — Evidence of, not valued, 556 Not sufficient alone, 556 Enlistment, Foreign, 263 Enmity. — Objection to juror, 616 Equipping ships against allies, 204 Erasure in dtclaration, 296 In summary conviction, 584 Escape. — Assisting war prisoner to, 263, 264 Escheat of movables in murder, 150 In deforcement, 245 INDEX. 643 EBoheat — 'EscnsA.T— continued. In treason, 256 Of heritage in treason, 256 Evidence. — {ForfuU particulars see Proofs Child as witness, 518, 519 Kelationship of witness, 519, 520 Spouse uf accused, 519, 520 Insane and idiots, 520, 521 Deaf and dumb, 521, 522 Atlieist, 522 Judges, 522 Co-accused, 522, 623 Outlaw, 523 Corrupted witness, 524, 525 Malice of witness, 525 Instructed witness, 526 Presence in Court, 527 Agent as witness, 528 Effect of disqaalificatiou as to one ac- cused, 528, 529 Oath or affirmation, 529 Child or dumb, need not be sworn, 530 BefusaL to answer, 530 Prevarication, peijury, 530, 531 Privileges of witBess, 531 Use of antes, &c., 531, 532 Foreign or Gaelic witness, 532 Mode of examination, 532, 533 Burden of proof, 533, 534 Proof in presence of assize, 634 Laying foundation, 534, 635 Inference to oath, 536 Best evidence, 536, 536 Evidence of opinion, 636 Limitations of proof, 537 Proof of ret gestai, 538 Of motive and malice, 538, 539 Of guilty knowledge, 539 Character of accused and witness, 540, et seq. Hearsay, 543 Statements of accused, 543, et seq. Of injured pjtrty or child de recently 547 Hearsay, incidental facts, 548 Of person deceased, 548 Productions, 649, et seq. Production by witness, 550 Person as production, 560 Prosecutor must give notice, 551, 552 Written evidence of office, parentage, &c., unnecessary, 553 Identifying productions, 553, et seq. Character, certificates, 554 Proof of writing or forgery, 555, 556 Plans, models, 556, 558 Official Extracts, 553, 657 ' Medical Keport, 568 Declaration, 558, et seq. Proceedings in civil suit, 661 Deposition of deceased, 561, 662 Books, letters, Ac^ 563, 564 Sufficiency of proof, 565, 566 -Extract. EscoKT, MiLPTART. — Besoue from, not de- forcement, 241, 242 Especially. — Use of in major prop., 328, 32J Examination. — Commitment for further, 297. — See Commitment. Examination on Declaration (289, et seq.) (See Declaration.) Examination of Witnesses.. — Leading in- competent, 532, 533 But competent in cross, 633 Be-examination, 633 Eecalling witness, 533 Whether re-inclosed or not, 633. — For particulars see Proof. Excise Ofpenceb (264 et seq.) — See Smug- gliiy. Excise Officeb. — Br. of Trust by, 80, note 5 Pretending to be, 104 Deforced although no warrant, 241 Unless case required warrant, 241 Execution of Citation of accused, 497 Form of, 497, 498 Need not be produced, 498 Except for outlawry, or forfeiture of ball, 498 If produced, and bad, fatal, 498 Cannot be withdrawn and amended after first diet, 498 Expenses. — Prosecutor liable in expense^ 313, 314 In discretion of Court, 696 When to be moved for, 595 Words of Act not held to exclude appel- lant from, 595, 696 ExpiKY OF Sentence. — Convict at large be- fore, 248, 249 Exposing fob Sale. — Obscene works or pictures, 231 Blasphemous work, 232 Exposing Infants. — 1( death ensue, may be murder, 143 Injury not essential, 197, 198 Injuries aggravate, 197, 198 Modus in libel for, 449 ExposiiBE of FEiesoN before young girls, 228 In public place, 229, 230 Modus, ditto, 466, 466 ExTOBTioN — and oppression, 199, 200 Of confession of guilt, 200 False accusing to extort, 204 Extract of Court of Becord is prohatio probata, 553 Of Kegister of births, &a., 553 Of foreign record requires proof of truth and form, 654 The only proof of proceedings of Court of Eecord, 554 Parole cannot affect, 557 Conclusive against proceedings, 557 Conv. of theft should state what stolen, 557 Bad if signed on last page only, 657 Unless written on one sheet, 557 644 INDEX. Pabrioation- Faekioation. — See Forgery, Falsehood, and Fraitd. False Accusation of crime, 203, 204 Hust be malicious, 203 Defaming judges, 203 To extoii, 204 Person arrested under, 204 Sufferer, offender's wife, 204 ' Modus in libel for, 451 False Coin. — See Coin False Oath. — An offence, though nature of oath excludes perjury, 238 Falsehood and Fkaud. — Scope of tenn, 88 Falsehood, fraud, and wilful imposition, each implies crime, 88 Term swindling not used, 88, 89 Falsehood by writ, 89 Meaning of term, 89 Fabrication only first step, 89 Except under statute, 89 Guilty use essential, 89 Mode of Fabrication, 90 Clumsy fabrication, 90 (a) Want of solemnities of law, 90 Wholly informal documenii 90 Prejudice presumed where purpose seri- ous, 91 False receipt for one lost, 91 Unnecessary signature, 91 Forgery, highest class, 91 What constitutes forgery, 91 Must writ be obligatory, 92, 93 Imitation of writing unnoceasaryj 94 Fictitious signature, 94, 96 (b) False deed by notaries, 95 False signature to execution, 95 Initials or mark, 96, 97 Misusing genuine signature, 97 Trifling forgery sometimes prosecuted as falsehood and fraud only, 98 For fuller particulars on Forgery see Forgery. MiTior falsehoods by writ, 98 Documents narrating falsehood, 98 Seisins, executions, certificates, 98, 99 Antidating deed, 98 (b) Pretended copy of summons, 98, 99 Uttering (99 et seq.') See Uttering. Fraud am cheating, 103 to 114 Pretended office-holder, 103, 104 Suspended sheriff-officer, 104 Personating another in court, 104 Or tradesman or owner of goods, 104 Pretending to be agent or servant, 104 Or to be of a certain trade, 104 (d) Or a pensioner, 105 Or a person of means, 105 Or influence, 105 Or to hold an office, 105 Falsehood to excite pity, 105 Telling fortunes, witchcraft, &c , 105 Card-sharping, 106 — Female, Falsehood and Fraud — cordinued. Eecruit denying facts, 105, 106 Obtaining another's letter and opening it, 106 Overcharging postage, 106 (e) Falsely accusing, 106 Obtaining advances, intending not to pay, 106 Supplying adulterated goods, 106, 107 Artificially improving appearance of cattle, 107 Fictitious summons, 107 Vitiation of deed, 107, 108 False date in testing clause, 108 Writer of deed inserting unauthorised clause, 1P8 False entries to conceal defalcations, 108 (f) Destruction and mutilation of docu- ments, 108 Though the property of delinquent, if others have interest, 108, 109 False weights and measures, 109 Difference must be substantial, 109 Weights, &c., must be used as true, 109 Deviation from a lawful standard, 109 Generally prosecuted for fine, 109 But may be tried as crime, 109, 110 Question how far deception must go to constitute guilt, 110, 111 Falsehood may not be crime, 110 (g) Attempt at fraud, 110 Absolute success not essential, 110 Verbal statement not sufSoient, 110 Except under statute, &c., 110, 111 Writ narrating falsehood ofSeially, utter- ing sufficient. 111 But uttering of false begging letter not sufficient, 111 Article made over to others as being what it is not. 111, 112 Although real advantage not obtained, 112, 113 Tampering with deed with intent, 113 False act " to defeat justice," 113 (h) Fraudulent bankruptcy, 116, 117 Fraud by insolvents, 116, 117 Falsehood in registering births, &o., 117, 118 Prev. conv. what class of competent, 114 Punishment, 114 Modus of libel for, 418, 419 Need not aver no means to pay for goods obtained, 419 Intent not to pay enough, 419 Need not aver pretences known to be false, 419 Statement of result needful, 419 Family. — Haraesucken to attack any member of, 189 Fathek — Revelation to — elides Con. of Pregnancy, 169 Female under 12, connection, rape, 192, 194 INDEX. 645 ■Fiotitious- FicTiTious signature, 96 Summons, 107 Fine. — Punishment by, 21 Alternative of, 21 FiKEAKMS. — Beckless use of, 221 May be culp. horn., 154 Attempt to disobarge, 166, 167 "Loaded" not Implying "shotted," 167 Assault with, 181 Smugglers iissembling with, 266 FiKERAisiNG, Wilful. — What included in, 128 Labourer's but, 128 Building must have taken fire, 128 Fire applied indirectly, 128 Furze near corn fired, 129 Wood in yard near corn-stacks, 129 Intent presumed from act, 129 Mob burning goods in street and flame seizing house, 129 How as to prison door, 129, 130 Thief accidentally firing house, 130 Landlord burning house of tenant, and vice versa, 130 How if tenant not in occupation, 130 . Or if only right of lien, 130 Firing hoiise to burn neighbour's, 130 Or to defraud insurers and fire spreading to neighbour, 130 May destruction of movables be aven-ed in libel, 358, 362 Modus in libel for, 433 Statement of ownership, 434 May be libelled as unknown, 434 Latitude, mode of firing, 434 Attempt to commit, 131 Modus, ditto, 4.94 Punishment, 132 An aggravation of prison-breaking, 247, 248 Fireraising, — mifior heinousness — hay, stored wood, or furniture of others, 130 Or own to neighbour's danger, 130, 131 To defraud insurers, 131 Modus, ditto, 434, 435 Effects how described, 435 Not needful to state attempt to recover insurance, 435 Nor removal of goods, 435 Modus, attempt, 435 F. in defraud of diligence, 131 Culpable and reckless, 131 Modus, ditto, 436 Need not state how it was dangerous to others, 436 Fish— Theft from net, 23, 24 Flogging. — See Whipping FoEBiDDBK Degrees of marriage, 226, 227 FcETUs. — Destruction of, not homicide, 137 Foreign Enlistment, 263 Foreign Poet. — Crime by British seamen in, 276 -Forgery. Foreign Witness examined by interpreter, 532 But not if he know English, 532 Foreigner must answer for offence, 14 Position as to treason, 256 Found in smuggling ship, 265 Crime in British ship at sea, 276 Interpreter at trial of, 608 No right to foreign jury, 517 Forfeiture of honours for treason, 256 Profits of lands for misprision, 257 Bail-bond, 506, 507 Forged Notes. — Vending, 115, 116 Forgeries. — Possession of, statutory offences 115 FoEGEKY. — Definition of, 91 Obligatory or not, 92, 93 Serious purpose enough, 925 93, 94 Imitation not essential, 94 F. on one who cannot write, 94 Or pretence of authority, 94 Signing own name as that of one of same name. 94 Or as of person in a certain position, 94, 95 Procuring person to sign his name with such intent, 95 False obtaining signature by notaries, 95 Notaries signing on false statement of authority, 95 and note 4 Notary forging witnesses to false seisin, 95 Officer forging witness to false execu- tion, 95 and note 7 Forging witnesses names to antedated deed, 95 Question as to forging witnesses names to any deed, 95, 96 J Fictitious subscription, 96 and note 2 Forging on person dead, 96 Initials or mark, 96 Is mark alone sufficient, 96, 97 Prefixing writing to genuine signature, 97 Not if what written what subscriber un- derstood was to be written, 97 Filling up signed bill stamp, 97 Minor forgery sometimes prosecuted as falsehood and fraud, 98 Modus, form of charge, 415, 416 " Other names unknown," 416 , Statement of mode essential, 416 Description must not miylead, 416, 417, and note 1 Nan-ative of destruction of document to account for non-production, 552 Uttering, 99 When complete, 99 Withdrawal on challenge, 99 Giving document for preservation or to look at, 99, and note 8 646 INDEX. Forgery ) FoKGERT — amlimied. Uttering by another hand, 99, 100, 101 Is delivery to innocent person in order to be used sufficient, 101, and note 2 Despatch by post, 100 Eegistering, 100 Bill delivered to be filled up and dis- counted, lOU Writing placed in repositories and allowed to be used as genuine, 100 Production in Law Court, 100 Delivery to agent, 101 Writing must have left possession of utterer, 102 Fraudulent intent, essential, 102 Question where party has authority to sign for another, but tenders writ as triUy ^gned by mandant, 102 Immediate injury to othei's not essential, 102, 103 Purpose of, immaterial, 103 Prev. conv., different sort, 114 Punishment, 114 Not bailable, 299 Except in discretion of Court, 300 Latitude of time, 337 Ditto, locus, 348 Modus of the uttering, 417 Must be "as genuine," 417 "Forged bond" good, "though only sig- nature forged, 418 Blank stamp, special averment, 418 FoEGKRT, Apparatus for. — Possession of, 115 Form and Scbstance. — Question between, 393 Forma Speoifica. — Duty to deliver in — theft, 49, 50, 77 Fortune Telling, 105 Found Article. — Appropriation of may be theft, 46, il.See Theft, Letter g. Fodndation, Laying. — For discrediting wit- ness, 534 By whatever mode, 534 Exception to rule, 535 Fracture of Bones. — Aggravation of as- sault, 162 Fraud. — See Falsehood and Fraud. Fraud by Insolvents and Bankrupts. — Alienation, 116 Secreting from creditors, 116 Fictitious sale. 116, 117 Pretended payment, 117 Fraud after bankruptcy, 117 Modus in, 421, 422 Need not state who had goods when secreted, 422 Averment of property of goods, 422 Some creditoi-s should be named, 423 Unless represented by tnistee, 423 Fraudulent Bankruptcy. — Falsely obtain- ing bankruptcy, 116 ■Hamesncken. Fraudulent Bahkecptcy — ecmtmued. Fraud in prospect of, and continued to bankruptcy, 116 Secreting property when solvent, 117 Modus in fraudulent bankruptcy, 420, 421 Where by secreting, averred that con- tinned to bankruptcy or sub;ieqnentto it, 422 Some creditors should be named, 423 Unless there be trustee, 423 Fraudulent Fikeraising, 131 Fugitation. — Prosr. must te present, 505 Strong case needful to prevent, 606 Cautioner cannot object, 507 Becalled by placing at bar, 512 Becalled where accused applies, 512 Full Copy. — Not include Will of Crim. Letters, 493 Furiosity. — (14 to 16). — ^^ee InsarUig. Furious Driving, 219, 220 FuRTUM Grave Obsolete, 61 Gaelic Witnes.**. — Interpreter in case of, 532 Only if not knowing Enghsfa, 532 Game. — Scope of term, 215 Gaming-House, Keeping. — Statutes not applicable to Scotland, 233 Offence at com. law, 2.B3 Graves. — (87, 88).— iSce Violating Graves. Great Seal. — Counterfeiting — treason, 255 Guardian. — Lewd practices to child by, 230 Guilty Knowledge. — Proof of prior acts to shew, 639 Coin or forged notes, 639 Need not be in libel, 539 Guilty. — Plea of (514, 615). — See Pleading to Indictment. Habit and Kepute. — Thief, hab. and rep,, 56 Whole living need not be theft, 56, 57 Prev. conv. not necessary, bl Bedridden peraon hab. and rep., 67, and note 4 Doubtful repute not enough, 57 Must character attach at time of trials, 57, 58 Full year necessary, 58 A connected period, 58 Time in prison not counted, 58 Nor time after arrest, 68, 60, and note 2 But imprisonment does not disconnect periods, 58, 59 No hab, and rep. in robbery, 66 Does it apply to stouthrief, 66, 67 Not aggravation o( reset, 73 Nor of housebreaking with intent, 85 Habit and Repute. —Marriage by — ^iu ques- tion of bigamy, 224 Hauesucken. — Definition of, 188 Place must be dwelling, 188, 189 INDEX. 647 Hamesucken — HamesU€KEx — contiTmed. Shop or out-buildina: not h., 188 Attack on innkeeper, 188 Breaking into inn at night, 188 Is attack in ship, 188, 189' Attack on lodger, 189 House need not tie sufferer's, 189 Landlord and tenant, 189 House means separate dwelling, 189 Protection includes servants, 189 Assailant need not enter, 189 Firing from without, 189 Su£fei-er dragged out, 189, 190 Sufferer fleeing from house, 190 Mode of entrance no matter, 190 Previous purpose essential, 190 Thief trying to escape, 190 Officer executing warrant, 190 Sufferer pursued into house, 190, 191 Violence serious, 191 Attempt at i-ape may be h., 191 Or to carry person off, 19 1 Firing, tliough weapon miss fire, 191 Pui-suing with weapon, 191 Obtaining deed by force, 191 Oftenoonibined with robbery and stouth- rief, 191 Punishment, 192 Modus in libel for, 447 Handwkitisg. — Proof of, 555, 556 And of forgery, 5.o5, 556 Best evidence, 555, 556 Engravers not valued, 556 And not sufficient alone, 556 Hearsay. — Of accused, 643, 544, 545 How far evidence, 546 Words of res qestse, 546, 547 Of injured party, 547 Of infant witness, 547, 548 Of iijcidental fact,?, 648 Of person dead, 548, 549 Or since insane, 549 Exait words not essential, 549 For Particulars see Proofs Letter e. Heik. — Compassing as to king's heir, — must be againat life, 252 Heritage. — Confiscation of — for treason, 256 Heritors. — Cannot prosecute for resistance to induction, 310 High Court ok Justiciary, (279). — See Justiciary. High Seas.— Jurisdiction over, 276 Hiker.— May commit theft, 48, 49.— &e Theft, Letter g. Holy Soriitukes. — Publishing work to asperse, 232 Home. — Hamesucken only in, 189 HoMioiDE.— Definition of, 137 Destruction of foetus not h., 137 Injury must be real, 137 Death by fright not h., 137 Death direct from injury, 137 Homicide — continued. De.ath from confinement, 138 Or wrong treatment aggravating injury, 138 Health at time no matter, 138 Nor interval before death, 138 No defence that life might Jiave been saved, 138 Unless treatment very bad, 139 Disease supervening, 139 Division of subject, 139, 140 See Murder — Culpable Homicide — Jusii- fiable Homicide. Honours. — Forfeiture of — for treason, 256 House means s(*parale dwelling, 35 House let in different portions, 35, 189 HousEBRBAKiiR. — Killing, 161, and note 3 Eight to kill at night, 164 Housebreaking. — Intent to steal, 84, 85 Intent to destroy looms, 85, 86 Intent to break adjoining house, 84 Or obtain access to it, 84, and note 4 Prev. conv. of theft or hab. and rep. not competent, 85 Building roofed and fastened, 35, and notes 1, 2, 3 Unfinished house, 35 House with several families, 35 Building must be violated, 35 Breaking inner door not )i., 35 Entering outer yard not h., 36 Violence not necessary, 35 Opening locks, 36 With false key, 37 With true key, 37 Key given to carry to owner, 37 Question where thief had charge of key, 37 Unsecured door, 38 Key left in lock, 38 Key on nail in sight, 38 Removal of inner fastening, 38 Chest against door, 30 Wood nailed across, 37, and note 1 Eemoving fastening, ami returning, 36 Person within aiding thief, 36 Binging and rushing in, 36 Window, chimney, tewer, 36 Baising window, 39 Unless used as entry, 40, 41 Window opened fartiicr, 39 Entering by open window not h., 39 Unless high np, 39, and note 4 Bailing outside open wiudow, 40 Opening wooden blinds, 39 Board behind broken pane, 39 Hole above door, 41 Flap door nol fastened, 41 Opening in roof or loft, 41 Person need not enter, 41, 42 Breaking out not h., 42, and note 6 Attempt at h. irrelevant, 85 Breaking part of house with intent, 85 648 INDEX. Housebreaking Indictment, HoDSEBKEAKiNG aggravates theft, 34 et seq. And robbery and stouthrief, 67 And mischief, 135 Conspiracy to commit, 269 Modus, 411, 412 Mode must be stated, 412 Latitude permissible, 412 Door not said to be looked, 412 May be implied, 412 Person keeping key, 412, 413 Opening windows, 413 Statement must apply to place whence theft made, 413 In doubt, alternative permissible, 413 Terms as to "entry" should not tie up prosecutor, 414 Form, intent to break adjoining house, 414 Is statement of intent in such case suffi- cient, 414, 415 Husband. — Influence of, as mitigation, 20 Theft from wife, 25, 26 Not a competent witness, 519, 520 Unless the sufferer, 520 Identification of productions, 653 Proof previously identified may suffice, 555 Necessity of, 555, note 1 Idiocy exempts from punishment, 14, 15 Of witness, 520, 621. — See Insardty. Idiot — Inciting to offence, 6 Connection with, rape, 194 Illegal Drilling, 262 Illegitimate Person, — No incest in case of, 227 Cannot prosecute for injury to relative, 312 Imbecility. — If extreme, may exclude wit- ness, 521 Impairing Coin, 123 Imposition, Wilful. — See Falsehood and Fraud. Imprisonment. — Periods of, 21 Must be for definite time, 676 Solitary confinement, 21 Incest. — Definition of, 225 Actual connection, 226 Relationship must have been known, 226 But this presumed, 226 Degrees, 226 Intercourse with two brothers, 227 No incest by bastard, 227 Except perhaps with mother, 227 Punishment, 227 Latitude in time of, 336 Modus in libel for, 46',', 463 Incestuous second marriage bigamy, 225 Incidental Pact. — Can fii'st spouse in bigamy case prove ? 520 Hearsay to prove, 548 Impotency. — Whether defence in bigamy, 225 Incapacity to hold office of trust, for per- jury, 238 For subornation, 240 Inciting to Mutiny ob Desertion, 262, 263 Indecent Bxpostjrf, 228, 229, 230 Modus, ditto, 466, 466 Indecent Practices. — Towards children, , 228 No assault essential, 228 Exposure before girls, 228 Indecent handling, 228 Debauching minds of children, 228 Girls above 12 not included, 229 Except where mind weak, 229 No fixed limit as to boys, 229 Offender child's custodier, 230 Giving venereal disease, 230 Before other children, does this aggra- vate? 230, 231 Public exposure, 229, 230 Modus in libel, 464 " About " puberty bad charge, 464, 466 Indictment. — K.inds of, 317 Lord Adv. alone uses Indictment, 317 Private prosr. may join him, 317 Other prosecutions by criminal letters, 317 Lord Adv. may also use c. 1., 317 Commencement of libel, 317 In Sheriff-Court, 317, 318 Designing of accused, 318 Must be truly named, 318 Slight inaccuracy not fatal, 318 (a) Accused assuming false name, 318 Insertion of alias^ 319 But prosr. need not give every alias^ 319 Is wrong alias fatal, 319 Married woman husband's name, 320 Unless passing by maiden, 320 Besidence and occupation, if given, must be correct, 320 "Prisoner in prison of," 320, 321 What it prisoner not there, 321 " Now or lately prisoner," 321 (b) No objection that two of same name in prison, 321 Prisoner giving false designation, can- not object, 321 iThstarwe, 321 Prosr. and designation, 321, 322 Error in non-essential part, 321, 322 Interest of prosr. must appear, 322 Terms of instance must be clear, 322 Major proposition — Essentials of, 322 (c) General m. includes old statutes, 323 Statement of the crime, 323 Nomen juris must be clear, 323 ' NoTThen and description coupled, 323 Description good without nomen, 323 Alternative, 324 Different descriptions of same offence, coupled by " or," 324 INDEX. 649 Indictment. Indictment — continued. "As also " proper disjunctive, 324 Lavish use of alternatives checked, 324 Libelling special statute, 324, 235 (d) Whole clause, 325 Title not quoted, 325 One section depending on another, 325,326 Explaining section quoted luwrative, 326 Major in incest, 326 Interpretation section not quoted, 326 Statute modified by later, both quoted, 326 Must renewing stat. be quoted, 326 (e) Stat, giving jurisdiction, or the like not quoted, 326, 327 Nor stat. giving power io make bye-laws though these founded on, 327 . Nor stat. giving facility in libelling, 327 Aggravations in major, 327 One major though all not aggravated, 327 Aggravation may be implied in statute, 328 Intent charged substantively, or as ag- gravation, 328 Malice not in major, 328 " Particularly " and " especially," 328, 329 (f) Minor proposition, 329 Forms for several accused, 329, 330 - Or alternative charge, 329 Or degrees of guilt, 329, 330 Must agree with major, 330 Com. law crime with statutory punish- ment, " libelled as the said crime," 330 Where whole clause of statute in major, minor states part applicable, 330 This sometimes neglected, 330, 331 Exception where statute declares (me crime by different modes, 331 Statutes dealing differently with first and subsequent offences, 331 (g) Statutory words to be used in minor, 331 But not if against Scottish forms, 331, 332 Aggravations must be in minor, 332 But only those in major, 332 Form where several accused, or several degrees of guilt, 332 Scope of ''aggravated as aforesaid," 332, 333 These words used though all crimes in major not aggravated, 333 Or some acts not aggravated, 333, 334 Aggravation may be implied in statutory words, 334, and note 2 " Actor or art and part " essential, 334, and note 3 (h) Except in con. of pregnancy, 334 Subsumption, Time, 334, 335 Form in Night-poaching, 335 Indictment — continued. Three months allowed, 335 Further latitude on cause shown, 335, 336 Oases of latitude, 336, 337 Excess guarded against, 337 Time must apply to offence, 337, 338 Latitude by alternative, 338 Time of main act alone, 338 (i) But there are exceptions, 338 Time may be set forth in inventories, 339 For particulars see Time. Subsumption, Locus, 339 Must be correct, 339, 340 Bad order of words, 340, 341 Varying pronunciation, 341 Parish not specified, 341, 342 Wrong parish fatal if rural, 342 Statement must not be vague, 342, 343 (j) Streets, fields, roads, 344 Two places of same name, 344, and note 6,-345 " At" or " in," 345 Offence in distinctly different place from libel, 345, and note 5 Place shifted during offence, 345, 346 Use of " or near," 346 General latitude, 346 to 349 Place of every act essential to complete crime, 349, 350 For particulars see Locus. " Time and place above libelled," 350 (k) Is alternative statement covered bv, 351 "Then and there," 351 Absence of such words may be fatal, 352 But only where two statements discon- nected, 352 See Time — Locus. Modus, 353 Preliminary narrative, 353, 354 Must agree with minor, 354 Must cover whole major, 365 Must infer crime, 355 Consistently with major, 355 to 358 (1) Not going beyond it, 35S, 359 Except as to collateral facts, 359, 364 Wrong to state collateral facts unless ne- cessary for proving them, 364, 366 Specification, 366 Notice and relevancy, 365, 366 All essentials, distinctly averred, 366, 367 Except where one offence only an inci- dent of another, 367, 368 Modus, alternative, 368 Coupling charges, 369 Separate nan-atives not needed, 369 (m) Same facts cannot be detailed twice as distinct offences, 370 Effect of "wickedly and feloniously," Ac, 370, 371 650 INDEX. Indictment — continued. " Aiding and abetting," 372 Setting forth injured party, 373 to 376 Description of articles, 376 Inventories, 376, 377 Wlien writings must be quoted, 377, 378 Exception in forgery, 377 And obscene publications, 378 Appendices, 378 (n) Description of office, 378, 379 General reference to what before de- scribed, 379 to 381 Includes speciality in previous descrip- tion, 380 "■Wickedly and feloniously,'' &c., over- riding whole narrative. 381, 382 If used correctly at first, 382 Obieotions to vag-ueness of phrases re- pelled, 382, 383, 384 To vagueness of wording, 384^ 385 To vagueness of charges sustained, 386, 886, 387 To vagueness of wording sustained, 387, 389 Latitude under " or thereby," &c., 389, 390 (o) Circumstances warranting latitude, 390 " To prosecutor unknown," 390, 391 General latitude, 392 Not put as teparate charge, 392, 393 Latitude must relate to similar mode, 393 Not permissible, where particular mode essentia], 394 (For particulars see Modus — and for particulars as to separate offences^ see these under their respective names.') Supplementary statements to Modus, 476 (p) Facts subsequent to crime, 476, 477 Notice of unusual facts, 477, 478 Absconding or outlawry, 478 Probable results, 478 Malice, averment of, 479 One averment of malice covering whole libel, 478 Aggravations, 480 Must be within major, 480 And bear out major and minor, 480, 481, 482 Form of charging, 483 For particulars see Aggravation (r) StateTnent of declaration, iSS Signing libelled, 483 But that in accused's presence not need- ful, 483, 484 Libelling several d., 484 labelling productions, 484 Minuteness unnecessary, 485 Misdescription, 486 Eeference to previous description, 486, 486 Description of convictions, 486, 487 Indictment Injured Party. Indictment —continued. For particulars see Corwiction. Libelling by inventory, 487 (s) Conclusion of libel, 487 Omission as to verdict, 487, 488 Objection held good after jury sworn, 488 " To deter," &o., not essential, 488 WiU in crim. letters, 488 Two diets in Sheriff Court, 488 Signature of libel, 488 Indt. by Lord Advocate or Deputes, 488 Crim. Letters by Clerk of Court, 488 . Inventories and appendices signed as libel, 488 (t) List of witnesses, 488, 489 Names must be correct, 489 Error, when statable after jury sworn. Error in second Christian name not fatal, 489 Designation good if it enables to find witness, 490 Error no matter unless prisoner misled, 490, 491 Objections stated before jury sworn, 490, 491 May false designation be statable after, 491, 492 List signed by prosecutor, 492 Indictment. — Striking out words from, 512, 613 Indorsation of Warrants, 286 Sheriffs warrant not endorsed in Scot- land, 286 Bearer making oath of verity, 287 Indorsation in colonies, 287 Execution of indorsed war., 287 Warrant must be to arrest for trial, 287 Question of bail on indorsed war., 302 Induci.1;. — Fifteen clear days, 497 Forty in Orkney and Shetland, 497 ' If libel for High Court served there, 497 Edictal citation sixty days, 497 Six on crim. letters without jury, 578 Infamy. — For corrupt conduct, 234 For perjury, 238 For subornationi 240 An objection to juror, 616 Infant. — Inciting infant to crime, 6 Under seven not responsible, 14 Exposing and deserting, 197, 198 Placing in danger, 198 Modus in libel, 449, 460 Lewd practices to, 228 Debauching mind of, 228 Infirm Person. — Assault on, 183 Influence of Husband, 20 Information. — Signed i. necessary to com- mitment for trial, 297, 298 Initials, Forgery of, 96 Injured Party. — Prosecution by, 310 Naming and designing (373 et seq ) — See Modus, Letter g. INDEX. 651 lujUBED Party — continued. "Where quality an element of crime, this set forth in libel, 375 Character of, how attacked, 640 Latitude in case of injury to woman, 540, 541 - Injuki to person by assault, 182 Innkeeper. — Attack on, not hamesuoken, 188 Unless at night, 188 IkqUest. — Incapacity to serve on, for per- jury, 238 For subornation, 240 Insanity. — Exempts from punishment, 14, 15 Mupt be true alienation, 15 This sufficient, though partially rational, 15 Or though reason return, 15 Oddness or weakness not enough, 15, 16 Delusion not enough, 16 Cause of madness no matter, 16, and note 4 Plea in bar of trial, 508 , Court may test ex propria motu, 509 Procedure where plea proved, 509 Of witness, 520, 521 Of accused's relatione, 537 Hearsay of person who has since become insane, is it competent ? 549 Verdict of, 574 Present insanity may be found at any peiiod of trial, 574 Procedure where acquittal on ground of, 574 Insolvent. — ^Fraudulent alienation or secre- tion by, 116, 117 Modus, 421, 422, 423 Instance of prosecution, 321, 322. — For par- ticulars see Indictjnent. Instigation. — Inciting child or idiot to crime, 6 In mobbing, 211. — See Coutisel. Ihsteuments. — Forging, 115 Coining, 122, 124 Using, to procure abortion, 175 Insulting Language, not a breach of peace, 214 Insulting Judge.s, 203 Intent, Criminal, is inferred from act done, 2 Though injury fall not as aimed, 2, 3, note 1 Or be not aimed at any one in particu- lar, 3 Even though worse result follow than was intended, 3 Reset, intent in, 71, 72 Assault, intent essential to, 177 Interest does not exclude witness, 525 Interim Liberation on caution, 588, 589 Interlineations not fatal to summary con- viction, 584 Injured Party Jurisdiction. Interpretation Section of Act not quoted in major, 326 Interpreter taking foreigner's declaration, 292 At trial of dumb, or foreigner, 508 Intimation to fix diet for trial (302 et sej.) — See Running Letters. Intimidation at elections, 202 Masters and workmen, 202 Intoxication. — No defence, 16 Is it mitigation in offence by words, 16, note 5 Inventory. — Time may be set forth in, 339 Place, ditto, 350 Articles stolen, or the like, 376, 377, Productions, 487 Is signed as the libel, 488 Copy served bears to be signed, 494 Ireland. — Conveyance under indorsed war- rant from, 288, 289 Irregular Marriage (222).^ — See Mar- riage. Jail, Escape from. — See Prisonr-breaMng. Judge, Assault on, 183 Oppression by, 199 Threatening, 202 Slandering, 203 Breach of duty by, 218, 219 Slaying— may be treason, 255 As witness, 522 Judicial Examination (289 et seq.) — See Declaration. Jurisdiction. — Who amenable to, 272 Peers and Members of Commons, 272 Extent, Commons' privilege, 272 Clerical and military offences, 273 Clergy and soldiers tried for crimes, 273 Forgery abroad, uttering here, 273 Posting forgery to England, 273 Act abroad, taking effect here, 273 Eepeated uttering of coin, 274 P. 0. offence, 274 Thief or resetter, 274 Not tried for aggravations which attach to place of theft, 274 Piracy, 275 In all cases three miles from shore, 275 Harbours, rivers, &c., 276 Statutory, high seas, 276 Limited to British ships, 276 And if crime in foreign port, limited to British subjects, 276 Coining offences, in Scottish vessels, 276 Court of Jiixlidary, 276, 277 Has j. in all cases, 277 iJnless statute excludes, 277, 278 Jurisdiction in new crimes, 278, and note 2 Offences limited to 0. of J., 279 High Court and Circuits, 279, 280, 281 One Judge may act at Circuit, 280 652 INDEX. Jurisdiction- Jurisdiction — continued. Two Courts in Glasgow, 280 Power to alter Circuits, 280 Division of Circuits, 281 Jurisdiction of Circuit, 281, 282 In abduction of voter, 281, 282 Sheriff, 282 Jurisdiction in counties, 282 And in ports adjoining, 282 Each Sheriff cumulative over water dividing counties, 282 Crimes competent to Sheriff, 282, 283 Question as to j. by restricting pains, 283 Magistrates, 283 Limited to bounds, 283 Except under statute, 283 Jury, Balloting. — (515, 516). — See Assize. Justice. — Conspiracy to pervert, 269 Justice of Peace.— Jurisdiction of, 283 One signing arrest warrant, 286 Two to constitute Court, 584 Except under statute, 584 Both must sign deliverances, 584 Preses signing, 684, 585 Deliverance by quorum good, though also signed by unqualified j., 585 J. deciding, though not present at proof, fatal, 585 Justiciary, Court of, 276, 277 Jurisdiction in all cases, 277 Unless statute excludes, 277, 278 Jurisdiction in new crimes, 278, and note 2 What crimes limited to, 279 High Court and Circuits, 279. 280, 281 Jurisdiction of Circuit, 281, 282 Commitments direct for trial, 298 Only on motion of Lord- Adv., 298 Justifiable Hojiicide. — Judge sentencing, 161 Those executing sentence, 161 Deviations from sentence, 161 Magistrates suppressing riot, 161 Eules as to rioters, 161, 162 Biots Act, 162 OfBcer kilHng when resisted, 162 Koyal Forces on orders of magistrate, 162 Or on own responsibility, 162 Need not wait till attacked, 162 Serious menace enough, 162, 163 Ship refusing to bring to, 163 Duration of plea of duty, 163 Protecting arms from capture, 163 Citizen resisting murder, 163 Even murder of another, 163 Killing ravisher, 164 Person with woman killing, 164 Highway robber, 164 Housebreaker, 164 Particularly at night, 164 Question, preventing escape of thief, 164 Danger, true criterion, 16^ —Libidinous. King. — Scope of term, 250 Assault on, 258 Kirk Session Minute. — Confession in, — not evidence, 561 Labelling Productions, 316 Landed Jury, 516, 517 Landlord. — Pireraising by, 130 Hamesucken by, 189 Last Criminal Letters. — Last resort un- der, 1701, c. 6 ; 303 Service essential to recommitment, 306 Competent at any time, 306 But must be new Letters, 306 Sentence within forty days, 306 Otherwise absolvitor, 306 No matter what the cause, 306 Limit only when accused reimprisoned, 307 Liberation thereafter does not elide, 307 Delays at accused's desire, 307 Latitude. — Of time in libelling (335 et sej.) — See Time. Of locus (344 et aeq.') — See Locus. Of modus (389 et seq.y — See Modus, Letter e. Law Adviser. — Secrecy privilege, 528 Friend acting as, 528 Extent of privilege, 528 Bights of opponent where agent ex- amined, 528 Laws. — Conspiracy to alter, 269 Laying Foundation. — To discredit witness, 534 By whatever mode, 534, 535 Exception to rule, 535 Leasing-makisg, 259 Legal Assistance. — Court asign — to_ ac- cused, 508 Unless accused decline, 508 Lethal Weapon — Obsolete aggravation of assault 18u Letters. — Offences regarding. — See Post- Office. Threatening letters (201, 202).— ;Sec Threats. Of intimation (302 et seq.") — ^ee Bunning Letters. Of accused as evidence, 563 Of others to him, 563 Letters, Criminal. — See Criminal Letters. Fm* particulars see Indictment. Leviticus — Law of Incest, 226, 227 Levying War (253). — See Treason. Lewd Practices (228 et seq.^—See Indecent Practices. LEvniNESS. — Assault to gratify, 180 Libel. — See Indictment. Liberation.— Under 170I c. 6 (302 et «ej.) — See RmmiTw Letters. On caution in Review, 588, 589 Libidinous.— Assault, 180 INDEX. 653 Libidinous Practices — Magistrate. LiBiDiNors Pkactices(228 et sej.) — See In- decent PracHces^ List of Assize. — Served with libel, 493 Need not bear to be signed, 494 Mode of making up, 515, note 7 List of Witnbsses. — ^Reauisites of, 489, 490, 491 Service of, 493, 494 List for defence, 502 Loaded Pikea'kms. — Scope of term, 167 Lockfast Places. — Opening, aggravation of theft, 43 Places included, 43, and note 6 Mode of opening, 44 Key in look excludes, 44 Ib it an aggravation ? 44 Opening vrith intent, is it relevant ? 86, 87 Lock-up, Police Not prison-breaking to escape from, 247 Locus. — Correctness essential, 339, 340 Not sufficient that tallies with accused^s statements, 339 Incidental error, 339, 340 Bad order of words, 340, 341 Place not existing, 341 Difference of pronouncing, 341 Parish not essential, 341, 342 Country parish wrong fatal, 342 But not town parish, 342 Naming street alone, 342 Name which might be town, parish, or county, 342 Want of distinctness, 842 " Shop in Haddington " held good, 342 Accused tenant, less minuteness allowed to pass, 343 Descriptions held too vague, 343 Part of street not essential, 344 Or particular entry, 344 "Field or farm of," 344 Latitude, sheep-walk, 344 WhoUy general statement bad, 344 Two streets of same name, 344 and note 6—345 "At" covers place close by, 345 But "m " more narrow, 346 " Within," common description, 345 Wrong though close to true — hiatal, 345, and note 5 Locus shifted during crime, 345, 346, 350 " Or near," prevents difficulty, 346 Continuous line of street, with different name, 346 " To prosecutor unknown," 346, 347 Cases where libelling difficult, 846, 347 Embezzlement, reset, pocket-picking, 347 Crimes at sea, 347 Subornation, 347 Theft in tramitu, 347 2u Locus — continued. Theft of animals, 347 Nets or fish from nets, 348 Foimd property, 348 Forgery, or threatening letter, 348 Place of uttering distinct, 348 Latitude in uttering, 348 Place of first man-iage in bigamy, 348 Latitude permissible, 348 Crime involving tract of time, 349 Bepeated crime, 349 Special circumstances, 349 Place where crime completed set forth, 349 But not place of consequences, 350 Places per inventory, 350 "Place above libelled," 350 What this includes, 351 "Then and there," 351 . In alternative charge, 361, 362 Such words not necessary where merely two modes of same act charged, 362 Or two acts making up crime, 363 Lodger. — Question of hamesucken, 189 Lodging Productions. — Must be "in due time," 499 Rule in Sheriff Court, 499 No limit in Supreme Court, 499, 600 Prejudice the true test, 600 Clerk need not hSi,Ye possession, 500 Party told where to be seen, 600 What if they were never in control of Clerk, 600, 601 Sealed packet lodged, 501 Book, only part shown, 501, 502 Lodging for defence, 603 In Sheriff Court, 603 Objections must be before jury sworn, 617 Lodging Speclal Defence. — Day before trial, 602 Lodging Witness List fob Accused, 502 Signed list with Clerk, 602 Double with prosecutor, 502 Lord Advocate. — Powers as to bail, 300 Intimation under 1701 c. 6, to, 302, 303 Prosecutes in any Court, 314 Successor may take up libels, 314 Not liable in costs or penalties, 314 Indictment the privilege of, 317 May appear by deputes, 505 Lucre. — In theft, 27 Maceb. — Executes libel, 492 Madness. — (15, 16). See Insanity. Magistrate. — Privileges under Biot Act 162 Quelling mob, 161 Assault on, 183, 184 Threatening, 202 Jurisdiction of, 283 Ordering arrest, 284 654 INDEX. Uagistrati Magisttbate — continued. Indorsation by, 286 Any m. may toke declaration, 290. See declaration. Mail.— Theft from, 28 Statutory ditto, 81 to 83. See Post- office. Maim. — Injury with intent to, 166, 167 Major Pbopositiom. — Things essential, • 322 General m. includes old statutes, 323 Statement of crime, 323 Nomen juris specific, 323 Nomen and fuller description, 323 General description without nomen, 323 Alternative m., 324 Different descriptions of tame crime, coupled by "or," 324 " As also " the proper disjunctive, 324 Check on lavish use of alternatives, 324 Xiibelling special statute, 324, 325 Whole clause, 325 Title not quoted, 325 One section depending on another, both quoted, 325, 326 The explaining one narrative only, 326 M. in incest, 326 Interpretation section not quoted, 326 Stat, modified by later both quoted, 326 Jurisdiction or punishment stat. not quoted, 326, 237 Nor stat. giving power to make bye- laws, 327 Nor stat. giving facility in libelling, 327 Aggravations must be in m,, 327 Though various degrees of aggravation one m. suffices, 327 Aggravation implied in statute, 328 Malice not in major, 328 "Particularly" and "especially,'' 328, Majority of assize may return verdict, 568 Malice. — Not averred in major, 327 Time of, not libelled, 338 Averred in general terms, 479 Objection to witness, 525 Proof of malice, 539 More than fortnight prior, requires no- tice, 539 May go back long time, 539 M. denied, no notice needed to prove it, 539 Malicious Mischief. — Definition of, 133 What falls under, 133 Obstructing railroads, 134 Stat, and com. law, 134 Action relating to disputed rights, vio- lence necessary, 134 Mischievous intent essential, 134, 135 Attempt at m., 135 Aggravation of intent, 135 Of housebreaking, 135 •Minor Proposition. Malicious Mischief — continued. Destroying looms, &c., 135, 136 Punishments, 135, 136 Modus, libel for, 437 Owner of property stated, 437 Mania (15, 16). See Insanity. Manslauohteb. See Culpdme Somici e, Mark. — Forgery of, 96, 97 ftABRIAOE. — Irregular, 222 Not crime at com. law, 222 No banns or certificate, 222 Person not minister, 222 Pretence of being minister not essential, 222 Beligious act essential, 223 Modus in libel, 459, 460 By promise and cop. in bigamy, 224 Or by hab. and rep., 224 Incestuous second marriage bigamy, 225 Masters. — Assault to concuss., 180 Conspiracy to concuss., 269 Cannot sue for servants' wrong, 311 Measures. — False, 109 Medical Eeport. — Sworn to as true, 558 Made out ex intervallo, 558 Should not contain hearsay, 558 If writer dead, can it be used, 558, note 3 Meeting. — Legal, becoming mob, 206 Distinction in such case as to art and part of mobbing, 208 Disorderly conduct at^ 214 Memory. — Feebleness of, may not exclude witness, 521 Menace. — May be assault, 176, 177 Merchant Shipping Act. — Appropriating wreck, &c., 69 Modus, ditto, 404 Breach of duty, risking ship, 220, 221 Modus, ditto, 457 Merits. — Eeview excluded on, 592 Where implied, 592, 593 Oases trenching on the rule, 593 Messenger at Arms. — ^May execute libel, 492 Military Prisoner. — Bescue of — not de- forcement, 241, 242 Mind, Weakness of. — No defence, 15, 16 Minor Proposition, 329 Forms of, 329, 330 Must tally with major, 330 Major stating crimes and minor "said crime " bad, 330 Statutory exception, 330 Whole clause of act in major, minor should specify part applicable, 330 This sometimes neglected, 330, 331 Exception where one crime, by different modes, 331 Statute dealing differently with first and subsequent offences, 331 Statutory words to be used in minor, 331 ' INDEX. 655 Minor Proposition Modus, MiNOK Peoposition — conttmied. But not if inconsistent with Scottish forms, 331, 332 Aggravations in minor, 332 Only those in major, 832 Form where several accused, or several degrees, 332 Scope of "aggravated as aforesaid," 332, 333 These words competent, though all crimes not aggravated, 333 Or some of the acts not aggravated, 833, 334 Aggravation may be implied in statutory words, 334, and note 2 " Actor, or art and part," indispensable, 334, and note 3 Except in Con. of Pregnancy, 334 MiNOEiTT. — Objection to juror, 516 Mischief. — (133 to 136). — See Malicums, Mischief. Misprision of Treason. — Definition of, 257 Whatever declared treason, concealment of it is m., 257 Escheat of goods, and profits of land for, 267 Mitigation. — ^Pleas in, 20 Good character, 20 Youth, 20 Influence of husband or parent, 20 Weakness of mind, 20 Mobbing. — Definition of, 205 Concourse, combination, 205 Alarm of lieges, 205 If object national, treason, 205 But if local may be mobbing, 205 No fixed number, 205 Twelve by Kiot Act, 206 Assembly need not be iUegal, 206 Purpose taken up suffices, 206 But combination essential, 206 Tacit combination sufficient, 206 Legal object no excuse, 206 Must be in br. of peace, 207 Violence not essential, 207 Opposing lawful business, 207 Disorderly acts held acts of all present, 207, 208 What,is guilty presence, 208 Duty to leave or aid Jaw, 208 Distinction if meeting legal at first, 208 In such case refusal to disperse neces- sary, 209 High crimes not on all present, 209 Unless part of known purpose, 209 Or party active in that proceeding, 209, 210 Crime after mob dispersed, 210 May be guilty, though not present at moment of offence, 210 Instigator liable, 211 After he has left^ 211 Mobbing — continued. Prisoner inciting to rescue, 211 Punishment, 211 Eiot Act, 211, 212 Destroying buildings, 211, 212 Acts not within sanction, 212 Bemaining after Act read, 212 Who must read, 212 Heading prevented, 212, 213 May be read before violence, 213 Joining mob after reading, 213 Latitude of Locus in mobbing, 349 Modus in libel for, 461 Charging accused as mobber, 462 Common purpose, 462 " Purpose unknown," 462 To intimidate persons " unknown," — though names of persons assaulted given, 452 Acts following from purpose may be charged, 452, 463 Acts not ordinary to mob must be in major, 463 Theft must be in major, 358 Ordinary acts not charged generally. And even heinous if put as part of pur- pose, 463, 454 Form stating accused's guilt, 454 Act read, stated narrative, 454 Models. — How to be proved, 566 Made by neutral party, 558 Should show matter in usual state, 558 Modus. — Prehminary narrative, 353, 364 Consistency with affinnation, 364 '^Or otherwise " proper disjunctive, 354 Species facti for whole major, 366 Statutory crimes exception, 366 Must infer crime charged, 355 By consistency with major, 355, 356 (a) Omission of " masterfully" in stouthrief. 356 ' Omission of "knowingly" in statutory charge, 356 "Wickedly and feloniously" substituted for statutory words, 356 "Authority" instead of "excuse," 346 Description of weapons in one section misapplied to another, 366, 357 " Or one or more of you " badly placed, 357 Dang« omitted in statutory obstruction of railways, 357 Position of accused, where this an ele- ment of crime, 368 Concealment of effects, accused not said to be owner, 368 (b) Narrative within major, 368 Averment as to movables in wiiful fire- raising, 368 Mob acting " theftuously," 368 Words added to statute, 358, 359 656 INDEX. Modus — contimied. One nan-ative for statute and com. law, no objection that " -wickedly and felon- iously " used, 359 Statute using technical word " steal, embezzle," &c., such words as " wick- edly," &a., competent, 359 Collateral circiunstances, 359, 360 Though inferring crimes not in major, 359, 360 Night poaching offences, 360 « Falsely and fraudulently " in forgery, 360 (c) Minor forgery charged as " Falsehood and Fraud," 361 Eiot by a " mob," 361 Facts prior to offence, 361 Particularly if leading to offence, 361, 362 Facts implying another offence in proof of intent, 362 " Attack and assault " in mobbing, 362 Mode of wilful fireraising, firing move- ables, 362 Bye-laws in modus, 363 Charge of acting in concert, 363 Concert with mob, 364 (d) Concert with person deceased, 364 Collateral facts to be libelled only where indispensable, 365 Facts involving another serious offence, 365 Detail must come up to charge, 365 As notice to accused and judge, 365, 366 No exact form, 366 Narrative must contain all essentials, 366 Duly connected together, 366 Eeasonable disclosure, 366, 367 (e) General narrative followed by special, 367 General narrative need not be complete in itself, 367 One crime as incident of another, 367 Assault in mobbing, elaborate statement not essential, 367, 368 Conspiracy, threatening letters as an indd&it, not given at length, 368 Alternative — one or other mode, 368 Charges separated by "or," "or other- wise," 368 Charges joined by "Further " or "Like- as," 369 Alternative — different crimes, 369 Disjunctive "or otherwise," 369 (f) Separate narratives not essential for each crime, 369 Even in statutory cases, 369 And where two alternative intents libelled, 370 But same act cannot be narratived twice as two offences, 370 Modus. Modus — continued. " Wickedly and feloniously," "culpably," &c., 370, 371 Such words do not make relevancy, 371, 372 Merely an assertion of dispodtion of accused, 371 "Aiding and abetting," 372 (g) Charge of persons being associates, 372, 373 Naming of persons, 373 Injured party, 373 Error as to injured party fatal, 373 Error as to others fatal to part of libel to which essential, 373 Difference of spelling not fatal, 373 Distinctness when dispensed with, 374 (h) Description preventing doubt, 374 Br. of Trust— treasurer of Society, 374 Some members of Society named, 374 Same as to creditors, 375 Substantial error fatal, 375 Name by which known sufficient, 375 Besidence at date of libel, 375 Party " having no fixed residence," 375 Error in trade of injured party not fatal, 375 (i) Where quality of injured party an aggravation, must be averred, 375 Or age of party, 375, 376 Animals and things, 376 General description, 376 In ordinary language, 376 Inventory, 376, 377 Form of Inventory, 377 Writings when quoted at length, 377 Dispensed with in forgery, 377 Case of obscene works, 378 (j) Document only incidental, not quoted at length, 378 Documents in appendix, 378 Description of offices, duties, &o., 378, 379 If name well understood this enough, 379 Question whether specification correct is one of proof, 379 Provided duty alleged prima faxAe con- nected with office, 379 Whatever once described, need not be again, 379 (k) Eeferenoe suffices though in a, different charge, 379 Provided thing referred to, truly men- tioned before, 380 And embraces qualities before detailed. Narrative referred to, 380, 381 " Manner above libelled," 381 But reference to several complicated charges not allowed, 381 Qualifying words ("wickedly," &c.) overriding whole narrative, 381 INDEX. 657 Modus — contimted. If correctly used at outset, 382 Objections to vagueness repelled, 882, 383, 884 Critical objections to words repelled, 384 "Paid" in sense of handed over, 384 "Produce" in reference to affidavits, &o., 385 "Estate " in bankrupt's oath, for "state," 385 Objections to vagueness sustained, 385, 386, 387 Objections to words sustained, 387 " Expose " in child-murder, 387 '- Allowimg " light to catch article, 387, 388 " To be exchanged" in charge of utter- ing, 388 "Force or cause'" mother to sq^ueeze child, " force or" deleted, 388 " Tour duty I in any event,] " 388 (m) "Knowing [or having good reason to know, J '^ 388 Goods to " you or your order" 389 " Or thereby," " other weapon," Ac, Ac, to prosecutor unknown, 389 Specialties excuse latitude, 390 Bigamy, long time between, 390 Not invariable to add "to prosr. un- known," 390, 391 Latitude kept within bounds, 391, 392 Latitude competent as to whole narra- tive, 392 (n) Must imply similar mode, 392, 393 And must be pajH; of modus, 393 Not competent at close of libel, 393 Not competent where one mode of essence of charge, 394 Particularly in statutory cases, 394 For particulars as to separate crimes, see tkeseunder their respective Tiames. MoNOMAioA. — No defence unless connected with act done, 16 Moravian Juror, 517 Motive. — Need not be proved, 2 Competent to prove, 538 Movables. — Escheat of, in murder, 150 In misprision of treason, 257 In deforcement, obsolete, 245 Murder, Deiinition of, 140 Intent to kill, 140 BecklesEuess of life, 140 Age and state of deceased an element, 140, 141 Murder hy violence, 141 Weapon not essential, 141 Smothering, 141 Throwing acid, 141 Starving, 141 Throwing from height, 141 Spring gun, 141 Blows with fist, 141, 142 Modus — Murder. MuRDKR — coniiimed. Grievous harm intended and likely, 142 Delinquent discarding deadly and using other weapon, 142 Duelling murder, though deceased the challenger, 142 Murder by poison, 142 Mode of giving no matter, 142 Injection, puncture, fumes, 142 Turning on gas, 142 Poison need not be virulent, 142 Purgatives to invalid, 142, 143 Murder by death resulting from another crime, 143 Aborting pregnant woman, 143 Exposing child, 143 Death caused by fireraising, 143 Fall in struggle with robber, 143 Wreckers shewing false lights, 143 Scuttling ship, 143 Jailer placing prisoner beside wild ani- mal, 144 Causing another to kill in discharge of duty, 144 Procuring sentence of death by false- hood, 144, 145 Plea of provocation, 145 Words or insult no palliation, 145, 146 Nor blow with hand, 146 Violence causing fear, 146 Setaliation not reckless, murderous pur- pose not presumed, 146 Provocation recent, 146, 147 Betaliation, though instant, may ba murder, 147 Slaying trespasser or thief, 147 Killing officer executing wan'ant, 148 Irregularity Of warrant no excuse, 148 Unless in apprehension of injury, 148 Officer killing in executing warrant, 148 Not excusable unless serious danger if he advanced, 148 Pear of blows no palliation, 148 Officer killing person iieeing, 148, 149 Does flight from criminal warrant jus- tify killing, 149 Officer killing under illegal warrant, 149 Or legal wan-ant illegally, 149 Question if irregularity not known to him, 149 Eoyal forces taking life, 149, 150 Privilege only when on duty, 150 And when seriously attacked, 150 Punishment, 150 Modus, in libel for, 438, et seq. May charge combination of injuries, 439 Or alternative of different injuries, 439 State of body making libelling difficult, 439, 440 Death by supervening disease, the dis- ease not to be averred, 441 658 INDEX. Murder, attempt MuBDEB, Attempt to. — ^Assault with in- tent to kill, 165 Belevant charge, 165 Intent presumed from act, 165 Attempt when complete, 165 Mixing poison with food, 165 Giving poison to another to administer, 165 Whether an accomplice or not, 165, 166 Punishment at common law, 166 Statutory attempts, 166 With fire or other arms, 166 By poisons, 166 To suffocate, strangle, or drown, 166 Throwing acids, 166, 167 Intent not essential in case of firearms, 167 Attempt to discharge at — enough, 167 Scope of term loaded, 167 In stabbing cases, injury essential, 167 Poison must have been taken, 167 Acid oases, serious injury essential 167, 168 Need not be injury to person aimed at, 168, note 1 Where act would not be murder if death ensued, no capital sentence, 168 Question how this to be decided, 168 Statute relates to Queen's subjects, 168 Must nationality be proved, 168, note 3 Mussels, Theft of, 24 Attempt, 87 Mutilation of Documents, 108 Modus, ditto, 420 MoTiNT. — Seducing Eoyal forces to, 262, 263 Naming of Peesons in the Libel (373 to 375). — See Modus, Letter g. Naeeow Seas, Hostile act within, — treason. 254 Neglect of children or infirm persons, 196, 197 Neglect of Dutt. — By judges, officials, 218, 219 P. O. ofiioial absent from duty, 219 Modus, ditto, 457, 458 Direct injury to public service not essential, 219 On the road or at sea, 219, 220 May ie relevant though no injury, 219 In general case must be injury, 220 Statutory offences by ship's people, 220, 221 Modus, ditto, 458 Beckless use of arms, 221 Firing at window, 221 Night Poaching. — Scope of term night, 215 Of term game, 215 Taking or being on land armed, 215 2d and 3d offence, 215, 216 Section includes only one offence, 216 All need not have instrument, 216 to — Obligatory. Night Poaching — contimied. Boads, limited to taUng on, 216 Violence to person apprehending, 217 Weapon, stones included, 217 Three or more, on land, 217 Does not extend to roads, 217 All need not be armed, 217 Tenant within sanction of act, 218 " Question as to libelling prev. conv. of land offence in road offence, and vice versa, 218 Description of night in libel, 335 Modus in libel for, 454 to 457 Proprietor should be named, 455 Need not say whether "open" or "en- closed," 455 Misplacement of word "unlawfully,"455 Statement as to " three or more," must be clear, 457 NoMEN JuBis, in libel, must be unambigu- ous, 323 Along with general description, 323 Not essential to major prop., 323 Nonage. — Child under 7 irresponsible, 14 Under 14 males, 12 females, no capital sentence, 14 This rule not absolute, 14, note 3 NoN-EECOLLECTioN, Profession of, — may infer perjury, 236 " Not GUILTY." — Ambiguous plea held plea of, 514 Plea of withdrawn during trial, 567 Verdict where case given up, 573, 574 NOTABIES. — False deed by, 95, 98 Forgery by deceiving, 95 Pretending to be, 103 Notes. — Use of by witness, 531, 532 Notes, Foeged.— Possession of, 116 Vending, 115, 116 Notes of 'Evidesce must be taken in Su- preme Court, 567 And in Sheriff and jury cases, 567 Notice of Citation, 496 Oath, — Not necessary before warrant, 285 Unless required by statute, 285 If required, want of it fatal, 580 Or want of oath of complainer himself, where that required, 580, 681 Oath of Calumny in private prosecution, 313 Oath, False.. — An offence, though not in- ferring perjury, 238 Oath, Eefeeence to. — Wholly incompe- tent, 535 Oaths, Unlawful (261,262).— See Unlaw- fnl Oaths. Objections to relevancy (512, 513). — See Relevartcy. How far eto.tab1e on appeal, 691, 592 Oeligatoey. — Must writ be — in forgery, 92, 93, 94 INDEX. 659 Obscene Works- Obsceke Wokks. — Dealing in, 231 How libelled to avoid quotation, 378 Form of modus, 466, 467 Obstructing Cooet, 245, 246 Obstructing Officers, 245 Preventive officers, 267 Obstructing Presbytery, 246 Obstructing Eailroads, 134 Modus of libel for, 437, 438 Offensive Weapon, — In night poaching, 217 Office; — When duties of — to be stated in libel, 378, 379 If name (e g., teller) well understood, this sufficient, 379 Officer. — Keeping proceeds of poinding — Br. of Trust, 76 Br. of Trust by excise o., 80, note 5 Of law — assault on, 184v If known to be such, 184 Assault by o. on prisoner, 184 Obstructing, 245 Official. — Corrupt conduct by, 234 Deprivation of office for ditto, 234 Open Court. — Trial must be in, 503 Unless cleared for disorder, 503 And indecent cases, 503 If the latter, doors be opened before verdict, 503 Opening Letter or P. 0. bag, 81, 82 Opening Lockfast Places. — See Lockfast Places. Opinion. — Oath of, — Does not infer perjury, 235 Unless of corrupt origin, 235 Evidence of o. when competent, 536 And how limited, 536 Oppression. — Under colour of law, 199, 200 Judges acting oppressively, 199 Relevant charge against private party, 199 Strong overt acts necessary, 199 Sometimes an aggravation of another crime, 200 Oppression in Summary Procedure, 581, 582. — For Particulars see Summary Procedure. Oppressive Examination of accused, 293 Outbuilding. — Attack in, not hamesucken, 188 Outlaw. — Cannot prosecute, 310 Cannot be juror, 516 Nor witness, 523 Court will not repone witness at trial, 523 May be reponed before his own trial, 612 Outlawry. — May be averred in libel, 478 Not pronounced in absence of prose- cutor, 505 Accused not appearing, strong grounds necessary to prevent, 506 —Penetration, UTLAWBY — continued. Cautioner cannot object to, 607 Does not exclude after trial, 512 Is recalled by placing accused at bar, 512 Overpayment. — Eetention of — theft, 46 Whether paid to delinquent or one for him, 46 Overt Act, — Compassing King's death, 251, 252.— /See Treason. Ownership. — Libelling of,— in theft, 400, 401 Must be libelled in flreraising, 434 And in mischief to property, 437 And night poaching, 465 Oysters. — Theft of, 24 Panel.— Naming of, in libel, 318, 319, 320 Designation of, in libel, 320, 321.— For particulars see Indictment, Letter a. Charging in minor prop., 329, 330 Pardon. — llust ba by Crown or Statute, 596 May be conditional, 696 Supreme Court apply it, 596 Presence of accused not necessary, 596 Signature of one judge suffices, 696 Court grant warrants, to carry out con- ditional pardon, 596 Parent. — Keset by parent of thief, 73 Assault on, 183 By parent on child, 183 Beating or cursing parents, 186, 187 Modus, ditto, 447. — See Beating Parents, Cursing Parents. Parish. — Not essential in locus, 341, 342 Error in rural p. fatal, 342 But not in town, 342 Parishioners cannot prosecute for resist- ance to induction, 310 Parole Proof (635 et seq.}—See Proof, Let- ter a. Participation. — See Art and Part. Particularly. — Use of in major prop., 328, Patron of Parish may prosecute for re- sistance to induction, 310 Pawnbroker. — Taking by, not theft, 22 Br. of trust, 76 Payment. — Tendered, no defence in deforce- ment, 243 Or p. asserted to have been made, 243 Peace. — Security to keep the, 21 Breach of (213, 214.)— &e Breach of Peace. Peace, Justice of. — Jurisdiction, 283 Peers. — Jurisdiction over, 272 Application for bail by, 301 Penal Servitude. — periods for which in- flicted, 21 Penetration. — Essential in rape, 192 Extent of, 192, and note 8 660 INDEX. Peremptory Cliallenge — Pekemptoet Challenge of jurora, 616 PekJCrt. — ^Definition of, 234 Falsehood explicit, 234, 235 Omission not perjury, 235 Prosecutor avers and proves opposite facts, 235 Falsehood must be absolute, 235 Profession of non-reoolleotion may be perjury, 235 Falsehood must be -wilful, 235 Oath of opinion not perjury, 235 Unless corrupt in its origin, 235 As where witness bribed, 235 Must be on formal oath, 236 Under the rules of law, 236 Writing not essential, 236 Oath before qualified person, 236 In judicial proceeding, 236 Spiritual Courts not included, 236 Voluntary affidavit excluded, 236 Party before whom oath ta^en must be truly present, 237 Falsehood must be material, 237 What is pertinent to issue, 237 Breach of oath of promise not p., 238 Oath of allegiance, (U fideli^ &c., 238 Infamy for, 238 Unfitness for ofiice of trust, 238 Direct commitment for, 298, 530, 531 Person prejudiced may prosecute, 310 Modus in libel for, 468, 469 True facts stated must negative oath, 469 Averment making truth impossible sufficient, 469, 470 Peksost as a production, 650 Name in witness list sufficient notice, 560 PERsoif AL Citation, 494 Personating (104 et seq.) — See Falsehood and Fraud- Husband, and obtaining access to wife, not rape, 192 But a very serious offence, 195 Modus, ditto, 448 Pebvbrsion of Justice. — Conspiracy for, 269 Petition, — Not essential to warrant to ar- rest, 285 Need not be dated, 286 Necessary to commitment for trial, 297 Double not served on accused, 298, 299 If warrant itself specific, 298, 299 Pictures. — ^Dealing in obscene, 231 Pier. — Citation at pier and shore, 495, 496 Pigeons. — Theft of, from dovecot, 23 Piracy. — Definition of, 68 Ship uncommissioned, 63 Going beyond commission, 68 Crew or others seizing vessel, 68 Carrying off persons or goods, 68 Exception where necessaries taken, 68 Fleas in Ear of Sentence, PiBAOT — cantimued. Question whether taking essential, 68, 69 Capital offence, 69 Jurisdiction universal, 275 Modus, Charge of Piracy, 402, 403 Latitude permissible, 403 Place. — See Locus. Plagium. — Mode and motive no matter, 28, 29 Aggravated by prev. conv. of theft, 56 Is an aggravated theft, 60 Plans to be proved by maker, 556 Maker should be neutral party, 668 Should represent places in ordinary state, 658 Pleading to Indictment. — Doubtful plea held " not guilty," 514 Same if accused decline, 514 Or cannot be made to understand, 614 Plea of guilty recorded, 514 How signed, 614 Prosecutor need not accept plea, 614 If accepted, sentence moved for, 514, 515 Court may delay sentence, 515 Procedure where one accused pleads, 616 Evidence of character after plea, 615 Certificates allowed, 615 But not comments on facts, 515 Can prosecutor lead counter proof ? 515 Accused heard in mitigation, 516 Plea of " not guilty," 616 In SheriS Court trial adjourned, 615 Plea of "not guilty" sometimes with- drawn, 667 In which case formal verdict convicting, 567" Pleas m Bar op Trial, 508 Pupilarity, 508 Insanity, 508 Res judicata and tholed assize, 509, 610 This plea not good where events changed, 610 Or previous trial stopped by illness, &c., 610 Or nullity without fault of prosecutor, 511 Promise of indemnity, 611 Is every Crown witness included? 611 Promise must be by highest officials, 511 And takes effect only when party made witness, 512 Pleas in Bar op Sentence. — Delay not granted to prepare, 676 Unless pleas at once stated, 575 No objection to libel or evidence, 575 Plea, Circuit beyond month in libel, re- pelled, 575 Capital convict pregnant, 675 INDEX. 661 Pledge- — Prison, Pledge. — ^Appropriation of, Br. of Truet, 75 PoACHiNa (215 et scy.) — See Night-poachmg. PoOKEivPiCKiNG. — Attempt, police offence, 87 And a breach of peace, 214 Latitude — locus of theft by, 347 Poisoir. — ^Murder by, 142, 143 Administration of, capital, 166 PoLicB LoCK-CP, not prison-breaking to escape from, 247 ^ Pomce-Officer. — Theft by, aggravated, 60 Bobbery by, 67, 68 Eeset by, 73 Seeing offence, or direoUy informed, may arrest, 284 Breaking open doors in pursuit, 284 Must bring prisoner before magistrate, 288 Political Eiot. — ^Not mobbing if for na- tional object, 205 May be mobbing if local, 205 Poet.— Tlurisdiction where offence com- mitted in, 276, 282 Possession. — Lawful, does not exclude theft by custodier, 48 to 53 iSee Theft, Letter i. Postage. — Overcharging, 106 Post Office. — Opening or detaining letters, 81 Stealing, embezzling, secreting, or de- stroying, 81, 82 Letter containing valuables, 82 Stealing valuables from letter, 82 Stealing bag, or letter from bag, or P.O. officer, or stopping mail, 82 Stealing letter and valuables from same letter, 82 Stealing bag from packet, or letter from bag, or opening bag, 82 Eeceiving letter, or bag, or valuables, 82 Attempting to procure crime against P. 0. Acts, 271 Secreting, not delivering up, &e., found bag or letter, 83 Stealing, embezzling, secreting, destroy- ing newspapers and packets, 83 What held post letter and delivery to P. 0., 83 Punishments, 83, 84 P. 0. offence tried in any place letter passed through, 274 P. 0. offences not bailable, 299 But sheriff may allow bail, 300 Modus, opening or detaining, 407 Lenglih of detention stated, 407, 408 Property of P. M. General suffices as to ownership, 408 Embezzlement of letters, 408 Theft from letters, 409 Theft of bags or letters, 409 Stopping mail with intent, 409 Stealing bags or letters, or opening bags sent by Packet, 409 Breaking into. Post Office — contmued. Eeceiving bags, letters, or articles from letters, 410 Secreting or keeping wrong delivered or found letter, or found bag, 410 Stealing printed matters, 411 Use of ''wickedly," " theftuously," 411, and note 2 Post Office. —Forgeries, 115 Precognition. — for prosecution, 315 Magistrate may cite witnesses, 315 Ana commit them if evidence refused, 315 May administer oath, 315 Conducted privately, 315 Witnesses examined alone, 315 If corruptly examined together excluded, 526 Witness may have p. destroyed, 531 Cross-exam, and proof as to p. not ad- missible, 542 Pregnancy, Concealment of. — (169 et seq.') See Concealment. Pregnant Woman. — Assault on, 183 Presence in mobbing (et seq.) See Mob- Hng. Presence in Court. — Objection to witness, 527 No objection to exam, of agent, 527 At a previous trial no objection, 527 Medical witness, exception, 527 Prescription of Crimes. — No fixed law, 308 20 years probable limit, 308 Unless accused outlawed, 308 Statutory prescription, 309 What held commencement of prosecu- tion, 309 Pretences, False.— (103 to 110). See Falsehood and Fraud. Prevarication.— Commitment for, 298, 530 Pbeviohs Conviction. — (17, 18.) Sep Con- viction. Principal. — In treason all principals, 4, note 1. See Actor. Prison includes yard within wall, 247 Peisonbreaking. — Definition of, 246 Lawful imprisonment, 246 Cause of confinement no matter, 246 Good warrant essential, 246 Defects in prior proceedings no matter, 246, 247 Must be proper jail, 247 Police look-up not a jail, 247 Jail yard included, 247 Mode immaterial, 247 Attempt relevant, 247 Aggravation, violence to jailor, 247 Or firing prison, 247, 248 Modus in libel for, 473 Prison, breaking into — to rescue, 248 Modus, ditto, 473, 474 Is attempt relevant, 248 662 INDEX. Prisonei Peisonee, See Accused. Peisonee of War. — Assisting escape of, 263, 264 Pkitatb Pkosecutoe. — (309 et seq.) Intimation to, essential in Running Letters, 303 Peivt Councillob Assault on for seirvioe done, 184 Power of — to commit to prison, 298 Peocukatok Fiscal. — Warrant to arrest without oath of — where statute gave power to prosecute generally, 285 Intimation to in Running Letters, 303 No caution or oath of calumny, 314 May be liable in expenses, 314 Peocueing Abortion, 175 Modus, ditto, 446 Peooueing Commission of Ceime, 270 Modus, ditto, 476 Peoductions. — Labelling, 316 Libelling, 485, 486, 487 Lodging (499, et se j.) See Lodging Pro- ductions. Not looked to in discussing relevancy, 512 Proof by productions, (549 et aeq.) See Proof, Letter j. Person as production, 550 May be used by opposite party, 564, and note 6 Peofanity. — Breach of Sabbath, 232 Strong case requisite, 232 Disturbing worship, 232, 233 Forcible attempt to communicate, 233 Punishment, 232, note 5 Modus in libel for, 467, 468 Peomise. — Marriage by — sub. cop., in ques- tion of bigamy, 224 Oath of, does not infer perjury, 238 Of reward excludes witness, 524 But not of reasonable sum beyond ex- penses, or of protection, 524 Prisoner emitting declaration under, 291, 292 Peoof before Court, accused, and assize, 534 Depositions of living persons cannot be read, 534 Not competent for judge or jury to act on their own knowledge of fact, 534 Shouldjury inspect document in forgery case ? 534 Foundation for discrediting witness, 534 By examining witness himself, 534, 535 Prosecutor asking his witness question to discredit exculpatory witness, 535 Rule as to foundation ignored where a fact emerges unawares, 535 Absence of best evidence accounted for, before secondary allowed, 535 (a) Exam, must be relevant, 535 But latitude permissible, 535, 536 Witness must speak to facts, 636 —Proof. Proof — contimied. But skilled evidence of opinion compet- ent, 536 This confined to legitimate bounds, 536 Proof confined to libel and defences, 537 Proof of collateral facts, 537 Insanity of relatives may not be proved, 537 (b) Proof of family deformity, in evidence of parentage, 537, and note 3 Proof that rumour current, to same effect as alleged false accusation, 537 All res gestse may be proved, 638 Question as to acts not libelled, in sedi- tion, 538 Proof of ill -libelled offence, as evidence as to simultaneous offence, 538 Of removal of goods in fireraising, 538 Of motive, 538 Malice within a fortnight needs no no- tice, 539, and note 1 With notice may go far back, 539 Unless libel fixes limit, 639 (c) No notice needed, where malice denied in defence, 639 Prior acts to prove guilty knowledge, 539 Good character in defence, 540 Proof against character incompetent, 540 Except where attempted to bo set up, 640 Proof of repute " a resetter " illegal, 540 Accused on notice may prove injured party quarrelsome, 640 But not acts of violence, 540 Prosecutor may ask whether injured party peaceable, 540 Or whether female respectable, 540 (d) Accused may, on notice, cross-examine female, 540 And prove bad repute, 640 But onl}' about time of offence, 540 Can acts of unchastity be proved ? 541 Surrender to accused shortly before, 641 Or to others on same day, 540 Genei-al proof of after character incom- petent, 541 Other witnesses cannot be attacked, 641 Unless so degraded as to affect credit, 541, 542 Extract conv. only proof of crime against witness, 542 (e) Witness asked whether under fear, 542 Evidence as to witness' former life in- competent, 542 Oross-exam. and proof that he made different statement, 542 But not as regards precognition, 542 Witness not be asked if evidence agrees with precognition, to support his tes- timony, 542 May be crossed as to statements in a de- claration, 643 INDEX. 663 Proof. Pboof — continued. Hearsay inadmissible, 543 But statements by accused received, 543 Even before offence, if throwing light on it, 543 Statements by accused as witness, in trial of another, 543 (f) Statement when charged with offence, 543 Or that he remained silent, 543 But statement obtained by continued questioning by official rejected, 544 Or by entrapping or deceiving, 544 How as to eavesdropping, 544 Conversations of accused alleged insane, 544 Statements to magistrates and fiscals re- jectedr 544, 545 Non-voluntary statements by seamen to officer, 545 Statement extorted by poor inspector, 545 Confession to kirk-session admitted, 545 (g) Is statement to clergyman privileged, 545 Statement to private person admitted, 545 Unless oppressively obtained, 545 Quasi-official position of questioner may exclude statement, 546 Proof of utterance in sleep, 545 Statements by accused proof only against him, 546 Except in question of incidental fact, 546 Statement of co-accused heard in silence, 546 In conspiracy words of one good against all, 546 Provided made before arrest, 646 (h) And provided the maker of statement be produced, 546 Statements not evidence in own favour, 546 Except to prove uniform account, 546 May not prove statement of co-accused in exculpation, 546 Words by any one, being of res gestse, proof, 546, 647 But not long statements, 647 Unless speaker examined, 547 Statements of injured party de recenti, 547 Great latitude in injury to women, 647 Proof of statement de receifti by child to corroborate, 547, 548 (i) Hearsay as to incidental facts, 548 Such as that person dead, 548 But not proof that another not produced threatened to commit the offence, 548 Or statements by absent person of char- acter of accused, 548 Pkoop — continued. Hearsay where party dead, 548 Even of alleged socius, 548 Hearsay not excluded, because deceased emitted deposition, 548 Tenor of deceased's former deposition may be proved, 548 Deceased's statements not to be proved by person who has recently read pre- cognition, 548, 549 Deceased's statements before the offence, 649 (j) Deceased's silence when statement made, 549 Deceased consulting book, relative state- ment admitted, though book not pro- duced. 549 Is hearsay of one since insane compet- ent, 549 Exact words not necessary in hearsay, 549 Use of statute books and almanacs, 649 And of scientific works, 550 Witness using article not produced as illustration, 550 Must take article away, 650 Person as production, 550 Mode of giving notice of this, 550 (k) Is notice necessary ? 550, 551 Prosecutor cannot use article not libelled on, 551 One watch libelled, several produced, any one may be put in, 551 Article varying from description, 551 Proof as to article not produced compet- ent, 551 But not if found on accused, 561, 552 Prosecutor accounting in libel for non- production, 552 Case' of article produced and then lost, 652 Blundered description of article, convic- tion not excluded by, 652, 553 Written evidence of collateral facts not essential, 553 (1) Office, parentage, age, &c., 553 Party disputing prima yocie proof, must prove allegation, 553 Oath sufficient in questions of property, 553 Even as 1 o buildings, 563 Identification of productions, 553 Essential except as to extracts from re- cords, 653 Or from Begister of births, Ac, 553, 564 Foreign extracts require proof of truth and form, 654 Extract the only proof from Court of Record, 554 Certificates on plea of guilty, 664 (m) If article to appearance what it is de- scribed, this sufficient, 554 664 INDEX. Proof — confimted • Accused must be identified, 555 Proof that formerly identified in presence of others may suffice, 555 Same rule applies to productions, 555 Proof of handwriting, 555 Oath of party whose it purports to be, the best evidence, 555, 566 Absence of his evidence must be ac- counted for, 556 This not so strict formerly, 556 Engraver's evidence of little value, 556 And not^er se sufficient, 556 (n) Plans, models, hpw proved, 556 Sufficiency of proof as to productions, is for Coui-t, 556, 557 'Extract is probatio proiata, 557 Not assailable by parole, 657 Conclusive for or against proceedings, 557 Conv. not bearing witnesses sworn, bad, 557 Conv. for theft should bear what stolen, 557 Extract signed on last page only, 557 Good if on a single sheet, 657 Medical report sworn to, 558 (o) No objection that drawn up ex intervallo, 558 Should not state hearsay facts, 558 Can report be used if writer dead, 558, note 3 Plans, &c., should show places In ordi- nary state, 558 And be prepared by neutral person, 558 Use of old chronicles, family Bibles, &c., in relation to ancient matters, 558, and note 7 Proof of genuineness of such, 558 Declaration the only evidence of judicial exam., 658 Can tenor of lost declaration be proved ? 659 Declaration must be proved, if not ad- mitted, 559 p) Usual to prove it in capital cases, 569 Two witnesses prove declaration, 659 And state of accused, cautions, &c., 669 Magistrate should be witness, 559 But his absence not fatal, 669 Articles referred to in declaration and labelled, need not be shown to wit- nesses, 559 Declaration not admissible, if articles re- , f erred to not produced, 659 Each declaration must be proved, 559 Need not be proved that first read over, 559, 560 All formal declarations must be pro- duced, 560 Cq) Where one excluded on objection, the others may be read, 660 Proof. Pboof — continued. But accused may have the rejected one read, 560 Declaration is evidence of contents, 560 Can its phrases be challenged.' 660 Evidence only against the emitter, 660 Not evidence for him, 661 Prosecutor can alone i;se declaration, 661 Declaration an element of proof in ques- tion of sanity, 561 Declaration maybe used in trial for per- jury relating to same matter, 561 Statements and declarations in a relative civil suit are evidence, 661 (r) Note of Lord Ordinary in civil suit, 561 Kirk-session minute containing confes- sion inadmissible, 661 Deposition of deceased, 661 Whether injured party or not, 661, 662 If he could have been witness, 562 But of dead co-accused not admissible, 562 Belief that dying not necessary, 562 Need not be on oath, 562 Any respectable person may take, 662 Paper it-self must be produced, 662 (s) Sworn to as correct and freely emitted, when sane, 562 Deceased's precognition inadmissible, 562 ■ Deposition of person alive bad, 662 Statement in writing by spouse of ac- cused inadmissible, 562 Declaration of wife under false accusa- tion by husband used at his irial, 662 Letters of accused as evidence, 563 Books and diaries, 563 Not evidence in his favour, 563 State made up from accused's books re- jected, the books not being produced, 663 Letters delivered to accused are evidence, 663 (t) Or in correspondence with him, 563 Copy may be evidence if proved that original received, 563 Copies of letters to foreign witnesses asking their attendance, and their de- clinatures to' attend, 563 Books and diaries of others not evidence against accused, 563, 664 Might be in his favour, if party dead, 664 Exceptions in case of conspiracy, 564 Not documents written long before con- spiracy, 564 Or after accused in custody, 664 Trifling errors will not exclude docu- ments, 564 Error in date of declaration, 564 (u) Unstamped receipts admissible, 564 INDEX. 665 Peoof — contiwued. Opposite party may found upon any part of -vfritrng produced, 664, and note 6 Sufflolonoy of evidence, 565 Confession not sufficient, 566 Though in declaration, 665 What additional evidence vrill suffice, 666 One witness cannot convict, 665 One and circumstances, or a confession may, 565 Uncorroborated sodi crimmis cannot convict, 565 Hay one witness and one socius suffice, 566 (v) Circumstantial proof alone may convict, 666 Two witnesses not necessary to any fact, 566 Nor to any one act of repeated crime, 666 Aggravation proved by one witness, 666 Where aggravations apply to one of al- ternative charges, should Court, if the alternative to which they do not apply be proved, prevent proof of them, 666 Tarty need not bring all who saw offence, 566 Points incidentally arising proved by witnesses not in lists, 567 Pkopositios. — See Major Prep. — Minor Prop. Propbietoe must be named in libel for fire- raising, 434 Or for mischief to property, 437 Should be in night-poaohlng, 455 Pkosecvtok. Private — ■ No one disqualified except outlaw, 310 Corporate body cannot prosecute as such, 310 Statutory power to prosecute by deputy, 310 Injured party may prosecute, 310 Patron but not heritors may prosecute for resistance to induction, 310 Person prejudiced by perjury, 310 But not for attempt to suborn only, 310 Elector may prosecute for false oath by voter, 310, 311 In deforcement, messenger,employer, and Lord Lyon, 311 Master cannot prosecute for injury to servant, 311 Prospective interest not admissible, 311 Bankrupt trustee only power by statute, 311 Creditor may prosecute f raudtilent bank- ' ruptcy, 311 Statutory power to citizens to prosecute, 311,312 . ' Eight of relatives limited to great oyimpp, 312 Proof — Proaeoutor, Peosecutoe — contimied. And to violation of graves, 312 In rape, relative may prosecute, though woman decline, 312 All within forbidden degrees may prose- cute, 312 Cousin german, 312 Several may prosecute, 312 Bight not barred by non-concurrence of nearer relative, 312 Illegitimate relatives cannot prosecute, 312 Belationship to be proved, if disputed, 312 Guardian in rape or abduction, 312, 313 Concourse of public prosr. essential, 313 Unless dispensed with by statute, 313 Can only be withheld on cause shown, 313 Concourse must be given to cross-suits, 313 Priv. prosr. must find caution, 313 And is liable in expenses and damages, 313 If required takes oath of calumny, 313 Priv. prosr. disclaiming process, 313, 314 Priv. prosr. cannot prosecute by indict- ment, 317 But may join with Lord Adv. in indict- ment, 317 Puilic — Lord Adv. may prosecute in any Court, 314 Sol.-Gen. and Advocates Depute, 314 Successors in office may take up libels, 314 Procurator Fiscal, has he same power ? 314, and note 4 Pub. prosr. need not find caution, or take oath of calumny, 314 Lord Adv. not liable in expenses or penalties, 314 Proc. Fiscal may be, 314 Pub. prosr. cannot be compelled to pro- secute, 314 Nor prevented from prosecuting, 314 Lord Adv. can alone prosecute by indict- ment, 317 Other prosecutions by criminal letters, 317 Prosecutor not appearing, instance falls, 505 (Unless absence accounted for, 505 Sovereign may empower a person to roariy on prosecution already raised, .%0,6' eorporate body mav appear by commis- aibfler, W ' One proaecutqr may propced {hougl^ others fail to appealr, 6Q6 No sentence eipeot ofl nrpseo^itop's ji^Qt tion,574 i ■ ■ 666 INDEX. Prostitute Kemittingf to Assize. Pbostitdtb. — ^Eape may be committed on, Bafe — continued. 194 May it be proved whether witness is, 542 Pbovooation. — In charges of murder, 145 Must be serious, causing reasonable alarm, 146 Insult or blow not enough, 146 Interval elapsing, excludes defence, 146, 147 Mode of retaliation may exclude defence, 147 In cases of assault, 177 "Words can only palliate assault, 177 Blows justify assault, unless excessive, 177, 178 ■ Must be recent, 178, 179 Puberty. — Lewd acts to child below, 228, 229 In case of boy not limited to puberty, 229 Public Meeting. — See Meeting. Public Wokship.— Disturbing, 232, 233 Is a breach of peace, 214 Publishing obscene works, 231 Modus, ditto, 466, 467 Blasphemous works, 232 Modus, ditto, 466, 467 Statements as to case, may be a con- tempt of Court, 504 And may be prohibited, 505 Pupil. — Teacher debauching, 230 PupiLARiTY. — Child under 7 exempt from punishment, 14 Cnder 14, males ; 12, females, exempt from execution, 14 This rule not absolute, 14, note 8 A plea in bar of trial, 508 Purpose. — Premeditated, essential of hame- sucken, 190 Of essence of mobbing, 205, 206 Need not exist at flret assembly, 206 Putting off Coin. — See Coin. Quaker. — Juror makes affirmation, 517 Queen. — Scope of term in treason, 251 Compassing as to queen consort, must be against life, 262 Babbits. — Theft of, from warren, 23 Eailroads, Obstructing, 134 What completes statutory offence, 134 Common law offence, 134 Modus, libel for, 437, 438 Eape.— Definition of, 192 Pemale under 12, no force necessary, 192, 19,3, 194 Penetration essential, 192 But extent not estimated, 192, and note 8 Emission not essential, 192 Personating husband not rape, 192 Or abusing woman asleep, 192 Mode of overcoming resistance, 193 Force or threats causing fear, 193 Drugging, 193 Besistance must be to utmost, 193 And to the last, 193 Case of cripple, 193 Force not requisite in case of idiot, 194 , Where intellect weak, smaller amount of resistance sufficient, 194, and note 2 Bape not precluded by bad character of woman, 194 Boy under 14 found guilty of rape, 194 Capital offence, 194 Pains always restricted, 194 Latitude of time in r. on child, 336 Modus in libel for, 448 "Forcibly," &c., omitted in case of child, 448 Stupefying libelled, 448 Form where woman imbecile, 448 Eavish, Intent to.— Aggravation of as- sault, 179 Bavishbe. — Killing to prevent, 164 Person with woman may kill, 164 Eebellion.-— /See Treason, Treason-Felony, Sedition. Becalung Witness, 533 Eeceiving. — See Reset. Eeckxess — Fireraising, 131 Driving or steering, 219, 220 Ee-examination. — of witness, 538 On declaration, 294, 295 Eefeeence to Oath wholly incompetent, 635 1 Begisterinq Bikths, &c. — Falsehood in, 117, 118 Question whether falsehood sufficient, though entry not made, 117, 118 Modus in libel for, 423 Entry should be libelled in full, 424 Eegular Marriage not essential to bigamy, 224 Eegulations may be quoted, though sta- tute authorising them not in major, 327, 363 Eelationship. — Forbidden degrees, 226, 227 Objection to juror, 516 Kelatives. — Power to prosecute (312). — See Prosecutor. Eelevanct, may be impugned by Oourt^ Productions not available in discussing, Striking out passages, 512, 513 Not permissible where it alters charge, 512, 513 Is accused's consent essential ? 513 Eejut to inferior Court in process of Ee- view, 595 Bemitting to Assize. — Interlocutor not necessary in Sheriff Court, 615 INDEX. 667 Bepeated Theft- Eepbated Theft, not now libelled, 61 Bbpute, Habit asd, (56). — See Habit and Bepute. Ees Gbst^. — All facts of may be proved, 638 Question in seditions conspiracy, 538 Proof of fact badly libelled, as evidence of crime well libelled, 538 Words littered may be proved, if part of, 646, 647 Ees Judicata. — Plea of, 509 Libel found bad by Sh. Sub. cannot be brought before Sheriff, 509 Tholed assize, 609, 610.— ;See Tholed Eescde.— ^Assault for purpose of, 180 Breaking prison to, 248 Question as to attempt, 248 Eeset. — Oefinition of, 70 Article must be stolen or robbed, 70 Eeceiver must know fact, 70, 71 Harbouring thief not enough 71 Must receive or connive at disposal of property, 71 Need not be directly informed property stolen, 71 Need not receive direct from thief, 71 Footing of receiving no matter, 71 Even purchase does not exclude, 71 Knowledge subsequent to receiving sufficient, 71 Intent to retain from owner essential, 71,72 Continued retention not necessary, 72 Case of wife peculiar, 72 Eeceiving money obtained for stolen property not reset, 72 Question as to change of stolen money, 72 Prev. conv. of reset of robbery whether admissible in reset of theft, and vice versa, 72, 73 Prev. conv. of theft or hab. and rep. not competent, 73 Besetters the parents of thief, 73 Constable or jailor resetting, 73 Bleachfields, statutory reset from, 73, 74 Punishment, 74 Beset under P. 0. statute, 82 May be tried wherever resetter found with the property, 274 Latitude as to time of reset, 337 Ditto, Locus, 347 Modus, form of, 404 Averment of theft indispensable, 404 Difference between description of articles stolen and resetted fatal, 404 Difficulties of libelling reset of robbery, 406, 406 Besistance m Eape (193). — ^^ee Hope. Besistisq officer of law, 245 ■Eeview. Eespitb of capital sentence, 586 May be granted for limited time by High Court, 686 Royal respite may be till notification of royal pleasure, 586 High Court issue orders to carry out royal respite, 586 Does not entitle to bail, 586 Restitution. — Guilt not removed by, 27 Beview. — Modes of, 587 Advocation when used, 687 Sheriff's judgment of relevancy not reviewable by adv., 687 Adv. in profanity case, 587, 588 Suspension applies to illegal warrants and convictions, 688 Only applicable to recorded conviction, &88 In adv. and susp. matter must be crimi- nal, 688 Unless where High Court has radical jurisdiction, 588 Form of procedure, 588 Bill passed by one judge, 588 Quorum necessary for final disposal, 588 Presence of parties not needful, 588 Interim liberation on caution, 689 Appeal to Quarter Sessions or Circuit, 689 Not including Glasgow winter Circuit, 689 Mode of taking appeal, 589 Time of service olE appeal, 689 Caution, 689, 590 No appeal first to Sessions and then to Circuit, 590 Certification of appeals, 690 Objection to competency cannot be stated after certification, 590 Bight to appeal does not exclude sus- pension, 690 Though appeal notified and caution found, 590 But where Circuit allowed to pass, cause must be shown for failure to appeal, 590; 691 Acquiescence as bar to review, 591 Submitting to sentence no bar, 591 Delay a question of circumstances, 691 Objection not stated in Inferior Co'irt, 591 Does not bar review where there is mdlity, 691 But questions of citation, evidence, &c., should be raised and recorded in Court below, 592 Party cannot go beyond the reasons lodged by him, 592 No review on merits in Sheriff and Jury case, 592 Or on law laid down by Sheriff, 692 668 INDEX. Eeview — continued. Where Act appoints no record of evi- dence, review on merits excluded, 592, 593 Cases where this rule trenched on, 593 Form as distinguished from substance. Review of acquittal, 593, 594 Where quashed, is new trial competent? 694 Case dealt with as it stood in Court be- low, 594 Charge withdrawn, irrelevancy of that charge not pleadable, 594 Infant child cited by error of name for elder brother, conv. pronounced in knowledge of fact, quashed, 694 Court may remit case back, 595 Or dispense with part of sentence, 595 Portion of conv. may be suspended, 595 Expenses "596, 696 Must be asked when judgment given, 695 Eesponsibilitt. — Attaches to all offending within jurisdiction, 14 Except infants, insane, and persons forced, 14 Eestkiction of Punishment. — Competent up to time of sentence, 575 Power of, in summary cases not -weil defined, 583 Can jurisdiction be founded by, 583 No restriction competent which changes character of case, 683 Revenue Cases. — No warrant necessary to deforcement in, 241 Unless warrant requisite for the special duty, 241 Ebwaed. — Eight to does not exclude wit- ness, 624 Eight.' — Vindication of no excuse for mob- bing, 206 EiOT. — Combined with Br. of Peace, 213 Modus in libel for, 454 See Breach of Peace. EiOT Act. — Twelve make mob under, 205 Destroying building, 211, 212 Breaking in not within act, 212 Nor destruction of ornaments, 212 Mob remaining after R. A. read, 212 Who must make proclamation, 212 Proclamation prevented, 212, 213 May be read before violence done, SIB Person joining mob after reading, 213 ErvER. — Jurisdiction in, 2?6, 282 Road. — Taking game on, 216 Roe. — Assault with Intent to, 180 EoBEEKY. — Definition of, 62 Distinction from stouthrief, 62 Taking need not be from the person, 62 Nor violence applied to the person, 68 Violent conduct producing fear, 63 Eeview ^Kunning Letters, Robbery — continued. Reasonableness of fear depends on facts, 63 Sudden snatch not robbery, 63 Unless accompanied by blow or holding, 63 Article dropped and picked up by assail- ant, 63 Use of weapons not essential,^ 64 Violence induced by owner's resistance, 64 Resolution to take subsequent to attack, still robbery, 64 Article carried off in heat of scuffle, not robbery, 64 Violence by threat, must be of present injury, 64 Exaction of promise not r., 64 Violence subsequent to taking not r., 64 Nor resistance to owner trying to recover article, 65, and note ,1 Previous violence, but disconnected from taking, 65 Violence producing incapacity to resist, 66 Value of article no matter, 65 Art and part of, same rules as theft, 65. —See 55, 66 Violent taking of writing, 65 Taking forcible payment of debt, 66 Amotio in robbery, 66 Same rules as theft, 66. —See 31 to 34 Prev. conv. or hab. and rep. of theft not aggravations, 66 Housebreaking, aggravation, 67 Offender a police officer, aggravation, 67, Punishment, 68 Modus in charge of, 401 Statement of particulars of assault not essential, 401 Royal Forces.— pUcable, 65, 66. See 55, 56, and 31 to 34 Are prev. oonv. of theft, and hab. and rep, aggravations of, 66 Punishmeut, 68 Is cony, of s. an aggravation of theft, 56 Modus — charge of stouthrief, 402 Violence to lieges must be averred, 402 Omission of ^'■maslerfuUy^^^ 356, 402 "Word " thefluovsly "not essential, 402 Striking out Words fkum Libel — 512, 513 Subornation of Perjury. — Definition of, 239 Witness must depone as instructed, 239 Not npcossarily concocted statement, 239 Inducing to depone facts, without en- quiry as to witness* knowledge, 239 Mode immaterial, 239 Promises, threats, violpnce, 239 Attempt punishable, 239 Thougli relating to process not yet in Court, 239, 240 Infamy and incapacity for trust or aesize, 240 Latitude as to locus, 347 Modus in libel for. 470, 471 Mode of inducement essential, 471 '' Other mode unknown " permissible, 471 SuBSUMPTioN (33'4 et se^.) See IndictmeiU Letter h. Suffocate, Attempt to, 166, 167 SuBuuoNS. — Sei*ving copy of pretended sum- mons, 98, 99 Sunday.— Trial extending into, SI'S, 504 Swindling.— Term not used, 88, 89 See Falsehood and Frcmd, Summary Procedure.— Grim. Lettera, six days inducisB, 578 Prosecution by complaint, 578 Eegular complaint necessary, 578 Must allege cognizable offence, 578 Bad it founded on wrong section of statute, ,o78 Or if what statute requires not stated, Trifling informalities disregarded, 579 In signature of riomplaint, 579 In formal words of, 579 Generality of reference to statute, 579 ■Summary Procedure. Summary Procedure— coa^aBf?. Vagueness of locus and modus, 579 Wan*ant granted where accused not in custody, 579 Warrant may be essential, 579, 580 Serving of complaint not necessary, 580 Nor of witness list, at com. law, 580 Where warrant to *' convene," arrest illegal, 580 To bring up " for examination," accused cannot be at once tried, 580 If statute appoints service of complaint, immediate warrant to arrest illegal, 580 If previous oath requisite, want of it fatal, 580 Or oath not by complainer, where this required, 580, 581 Authority in warrant to cite witnesses omitted, 581 Oppression a ground for quashing, 581 Party cited as witness tried, 581 Verbal intimation five days before, 581 Befusal of reasonable delay, 581, 582 Though not asked, if proceedings other- wise oppressive, 581 Especially in case of child, 581, 582 Bules of evidence apply, 5~2 Trial in absence under statute, 582 Conv. bad if dat« in citation wroug, 582 Though separate citation superfluous, 582 Service of needless citation no ground of objection, if not misleading, 682, 583 Magistrate signing warrant need not try case, 583 Objections, requests for delay, &c., to be recorded, 583 Where recorded, deliverance may be im- plied, 583 Proof written unless statute dispenses, 583 Accused cannot dispense, 583 l{«striction of punishment, 583 Mubt be in libel to found jurisdiction, 583 Bestriction altering case, illegal, 583 Erasure in conviction, 584 Interlineations, 584 Conv. signed while party at bar, 684 This neglected in practice, 584 Conv. failing to "specify" offence in terms of Act, 584 Conv. must shew whether on plea or proof, 584 Magistrate cannot sentence to two terms, each being the lull extent ot statutory impritoument, 584 Statutory imprisonment not competent for costs, 584 Two justices necessary at com. law, 584 Both sign, 584 Signature by preses, 584, 585 674 INDEX. BoMiiARY Proceduke — contiwued. If quorum sign, further signature by disqualified justice does not nullify, 585 Magistrate not at proof, cannot pro- nounce conviction, 685 Sheriffs may use statutory forms, 5f5 Or follow forms of Slieriff Court, 586 Sufficiency of Proof as to productions is matter for the Court, 656 Though where doubtful, they, may' ad- mit and leave effect to jury 556, 657 Of evidence generally, 566, 566 Suspension. — Bedress against illegal war- rant or conv., 588 Warrant or conv. must be truly extant, 688 Competent though matter appealable to Circuit, 590 And appeal actually taken, 590 If Circuit allowed to pass, cause must be shown to make suspension good, 591. — For particulars see Remeuc. Tacit Combination may constitute mob, 206 Teacher. — Debauching pupil, 2.S0 Tenant may commit wilful fireraising, 130 May commit night-poaching, 218 Tendering Coin. — See Coin. Theft.— Definition of, 22 Must be property of another, 22 Limited right may exclude theft, 22 Goods seized by excise or poinded, 23 Wild animals, 23 Birds, deer, rabbits, &c., 23 Fish taken from net, 23, 24 Oyster or mussel theft, 24 No consequence to whom property be- longs, 24 (a) Owner may be unknown, 24 No matter from whom taken, 24 May be from unlawful possession of auotlier, 24, 25, and note 1 Taking must be felonious, 26 Taking under diligence not theft, 25 Belief of right or permission excludes theft, 26 If reasonable belief, 25 And the burden of proving it is on accused, 25 Theft from spouse, 25, 26 Obtaining article by deceit, 26 (b) Theft though owner aware of taking at the time, 26, 27, and note 1 Taking need not be for gain, 27 Intent to deprive enough, 27 Guilt not removed by restitution, 27 Value no matter it thing be property, 27, 28 Carrying off writings, 28 Party snatching receipt, 28 Theft from mail, 28 Stimmaiy Procedure Theft. Theft— continued. Not theft to violate grave, 28 But theft to take uninterred body, 28 (o) Child-stealing, 28 Theft thougli child enticed away, 28 And whatever be the motive, 29 Taking use of article only not theft, 29 Question wliere book containing secrets , taken and returned, 29, 30 Thief moving articles iu search for others, 29, note 2, 34 Forcible absti'aclion not theft, 30 But may be if violence slight, 30, 31 Besistaiice after taking, still theft, 31 Amotio necessary, 31 (d) Article destroyed on .spot, not theft 31, .Heraoval necessary, 31, 32, 33 Hand caught in pocket, 31 Momentary removal sufficient, 31, 32, 33 Detachment not necessary, 31 Articles moved by stick, 33 Fattening severed, slightest removal enough, 33, 34 Bemoval of article is theft of contents, 34,44 Housebreaking, aggravation, 34 Nature of building, 36, 36 (e) Building must be violated, 36 Opening locks, 36, 37, 38 Forcing door, 36, 37 Undoing fastening, and returning, 36 Person within opening to thiev(;s, 36 Thief ringing and rushing in, 36 Entering at window.s, &c., 39, 40, 41 Entry of whole person not necessary, 41,42 Articles, moved, by stick, 42 For particulars see IIonsebreaMng. (f) Shipbreaking, aggravation, 43 Lockfast places, 43 Mode of opening, 44 Key in lock excludes aggravation, 44 Is lockfast truly an aggravation ? 44 Child-stripping, aggravation, 45 Drugging, aggravation, 45 Question whe.her robbery, 45, and note 5,46 Ovei*payment, retention of, 46 Whether made to delinquent person- ally or not, 46 (g) Found property, and retained, 46 If owner unknown, this not sufficient, 46,47 But if soon appropriated and used as finder's own, theft, 47 Limited custody does not exclude t., 48 Box left at lodging, 48 Note given for change, 48, 50 Article borrowed for specific purpose, 49, and note 1 Whether borrowing a pretence or not, 49, and note 2 INDEX. (TTS Theft — ' Theft — continue^. Paiipcr selling workhouse clothes, 49 (h) Servant selling livery, 49 Porters, shipmasters, carriers, 49 Servant sent to carry article, 49, 53 Clerk, 50 Postman, 50 Salesman on master^s premises, 51, 53 Teller of bank, 51 Servant sent to dispose of article and bring money, 51, 63 Tradesman receivinfc article to make up or repair, 51, 52, 53 Q) Eesoning goods from fire or sea, and keeping, 52 Theft or Br. of Trust, 53, 54 Art and part of theft, 54, 55 Previous or present concert, 54 Case of gang, each guilty of all the thefts, 54, 55 Sending children to steal, 55 Privity at the time enough, 55 Question as to art and part just after theft, 56 Previous conviction, 66 (j) Need not be of same sort, 56 Plagiuin aggravated by theft, and vice versa, 56 Is conviction of stouthrief competent ? 56 Habit and Bepute, (56 to 59). — For par- ticulars see Habit and JRepvte. Accused's duty to protect property, ag- gravation, 60 Servant of owner, obsolete aggravation, 60 Plagium, aggravated theft, 60 Horse, cattle, sheep, Ac, 61 Theft from bleaoliiields, 61 Furtum grave obsolete, 61 (k) Eepeated theft obsolete, 61 Punishment, 61 May be tried where thief found with booty, 274 But not for aggravations attaching to jjlace of commission, 274 Latitude in libelling time, 336, 338 Ditto, Locus, 347, 394, 395 Modus of theft and plagium, 394 Eequisites of modus wliere custody was with thief, 395 0) Ditto, theft of found article, 395, 396 But no additional specificalion necessary unless possession innocent at first, 397 Where person not the custodier charged as art and part, specification of the mode of accession essential, 397, 398 Specification where animals naturally wild stolen, 398 Charge good though said accused " en- trusted" 398 Statutory theft charged in statutory words, 398, 399, and note 1 Time. Theft — continued. Continued theft, modus in, 399 Articles, how described, 399, 400 Money, some description necessary, 400 Trifling errors of description disregarded, 400 (m) Owner or possessor, 400, 401 Distinction between lawful and unlaw- ful possession important, 401 Statement of owner where theft and murder combined, 401 Thief. — Killing, murder, 147 Unless in reasonable fear, 151, and note 3, 164 Thief, Hauit and Eephte. iSee Habit and Repute. Tholed A.ssize. — Plea of, 509 Must be truly for same offence, 510 Excluded by change of events, 510 Not good where previous trial stopped by nullity not caused by prosecutor, 510, 511 Threats to commit serious injury, 200 Generally with intent to extort, 201 Verbal threat if serious criminal, 201 By letter, whether signed or not, 201 Dispatch of letter suflicient, 2(Jl No defence that what demanded due, 201 To accuse of crime, Veritas no defence, 201, 202 Aggravation to suppress evidence, 202 Kevenge for evidence or the like, 202 To electors, masters, workmen, 202 Judges or magistrates, 202 Declaration must not be emitted under, 291 Locus in case of threatening letters, 348 Where threatening letters part of con- spiracy, need not be quoted at length in the lil>el, 368 Modus in libel for, 450, 451 Throwing Acids. — Murder if death ensue, 141 Statutory offence, 166, 167 Person must be disfigured or injured, 167, 168 Com. law assault by, 181 Time.— 335 Statement of, essential, 335 Description of "night" in poaching, 335 Three months, 335 Where more taken libel must show cause, 335 Series of thf fts, 336 Thefts by servant or constable, 336 Or by accomplice of owner's son, 336 Embezzlements by clerk, 336 Theft of sheep, 336 Articles lent for repair, 336 Incest, unnatural offences, 336 Cruelty to or rape on child, 336, 337 67B INDEX. Time— Time — continued. Long interval before trial, 337 Beset — general statement enough, 337 Forgery, 337 Excess of latitude prevented, 337 Time stated ninst be truly applied to charge, 337, 338 Extra latitude set forth by alternative, 338 Cases of extreme latitude, 338 Time of main act alone necessary, 338 Time of malice unnecessary, 338 Charge that warnings neglected, time should be stated, 338 In bigamy, time of both marriages, 338 Latitude as to first marriage, 338, 339, and note 1 Time may be set forth in inventories, 339 "Time above libelled," 350 Absence of such reference may be fatal, 352 But where two statements of raodft of only one crime, such words need not be used, 352, 363 Or where two acta make the one crime charged, 353 Title of Statute need not be quoted in major, 325 Trade of accused wrong libelled fatal, 320 But not trade of otliers named in libel, 375 Tkeason. — Law assimilated to English, 260 Offences wliioh constitute, 250 Term "king," 250 Question as to deposed king, 250 Terni "queen," 251 '•Eldest son and heir,' 251 Eldest daughter not included, where no stni, ""iol Compassing death, 251 Overt acts shewing purpose, 251 Extension as regards person of king by ' er statute, 251 (a) Speculative writings not overt acts, 251 Unless part of conspiracy, 251 But writing, though unpublished, may be overt act, 251, 252 "Writing directed against Koyal person- age, 262 Spoken words without conspiracy not enough, 252 In case of consort or heir, compassing against Zz/e, 252 But to restrain or dethrone king enough, 2,52 Violating Hog's compmeion or daughter, or wife of heir, 253 Consent of woman no defence, 253 Maniage must be subsisting, 253 (b) Eldest daughter included, though not heiress of throne, 253 ■Trustee. Tkeason — continued. Levying war, 253 Conspiracy to levy not enough, 253 Attacking royal troops, 253 Holding out fort, 263 Violent rising for national purpose,, 253 Though ill organised, 253 Question where mob not armed in war- like fashion, 253, 264 War must be against sovereign, 264 Any rising for national purpose in- cluded, 2,54 (c) Must be within the realm, 254 Including the narrow seas, 254 A Inherence to king's enemies, 254 May be in or out of realm, 264 Marching or cruising with enemies, 254 Or taldng pay of, 254 Swearing allegiance, 254, 255 Surrendering troops, forts, stores, 265 Compulsion a good defence, 255 Pear of loss of property no defence, 255 (d) " Enemy " used in broadest sense, 255 Adherence to those opposed to allies, 255 Counterfeiting great or privy seal, 255 And royal seals in Scotland, 255 Slaying Judges,. 265 Who amenable to trial ? 265 Born of British father, 255 Subject of ally living in Britain, 256 If war declared, alien not exempt till he has left country, 256 Question if he leave family and effects behind, 256 (e) Enemy coming here under safe conduct, liable for treasonable acts, 256 Punishment, death, 266 Hanging or decapitation, 256 Head severed and body quartered, 266 Females to be hanged, 256 Escheat of movables, 256 Forfeiture of honours, 266 Confi.scation of heritage, 256 Corruption of blood, 266 Intimation to fix trial not competent till forty days after commitment, 302 Treason, Misprision of, 267 Treason, Felchjy. — Statutory offence, 257, 258 Act may be tried as, — though truly trea- son, 268 Is not bailable, 300 Prosecu tion to be conducted as if accused was running letters, 308 Modus in libel tor, 474 Trespass. — Taking use of plough or boat ■ not theft, but, 29 Trust. — jSee Breach of Trust. Incapacity for office of, — ^for perjury, 238 For suboimation, 240 Trustee in sequestration, only power to prosecute by statute, 311 INDEX. 677 Truth — Truth of threatening lettara not a defence, 201, 202 TuTOK- — Prosecutor in rape or abduction of wai-d, 312, 313 Unlawful Oaths. — Administering or being party to administering, 2dl Where oatk binds to illegal compacts 261 Or not to reveal such, 261 Person taking the oath punishable, 261 Oompulsioa no defence unless fact re- vealed, 261 Bevelation must be within four days, 2B1 Except where sickness or continued compulsion, 261 To wliom revelation to be made, 261, 262 Punishment where oath binds to capital offence, 262 Modus in libel for, 475, 476 Unsatl'kal Offences,' 227, 228 Unnatural Teeatment. — May be murder, 143 Or culp. horn., 154 A serious offence ^er «e, 196, 197 Aggravated, if by natural ouatodier, 197 Or if injuries result, 197 Modus in libel for, 449 UrrEKiNG. — Attempt to use document, 99 Must leave posselisiou of utterer, 102 Withdrawal on challenge no defence, 99 Giving document for preservation or to look at, 99, and note 8 May be by another hand, 99, 100, 101 Is delivery to innocent person to be used enough, 10), and note 2 Dispatch by post, 100 Eegistering, 100 Question where registered for preserva- tion, 101 Blank bill with forged signature de- livered to bo filled up and discounted, 100 Writing placed in repositories and allowed to be used as genuine, 100 Production in Law Court, 100 Delivery to agent not enongh, 101 Fraudulent intent essential, 102 Question where party has authority to sign, but passes document as truly signed by mandant, 102 Immediate injury to others not essen- tial, 102, 103 Fur[M)se need not be that to which such a document ordinarily puty 103 tJttering base coin (126 to 128). — See Coin. Latitude of Locus, 348 Delivery of paper " to be exchanged " for genuine money, not good charge of uttering, 388 2 T •Verdict. Uttering — continued. Modus, 417 Must be stated as genuine, 417 Description of deed where signature only forged, 417, 418 Statement where blank stamp uttered, 418 Value — ^Not of importance in theft, 27, 28 Nor in robbery and stouthrief, 65 Vending. — Forged notes at com. law, 115 By statute as to Bank of England, 116 Coin and coining apparatus, 122, 123 124 VENBltEAL Disease. — Giving — aggravation of assault, 182 And of lewd practices, 230 Verdict may he by majority, 508 Announced by chancellor, 568 Minuted by clerk, 568 With any recommendation, 568 In accused's presence, 568, and note 7 Informal v. may be corrected, 568 But not after recording, 568, 569 Cannot be Impeached after recording 569 "Guilty as libellel," 569 Guilty art and part, 569 Addition to general v. may nullify it, 569 Finding offence of lower degree, 569, and note 6 Question if addition Only indicated jury acted on insufficient evidence, 569, 570 Special verdict without general finding, 670 Must truly infer guilt, 570 And be within latitude of lib'l, 570 Need not affirm all the qualities libelled, 570, 571 Nor all the offences although libelled jointly, 571 Anv charge not noticed held acquitted, 571 ,;„, Same if one accused omitted, 5i 1, 672 Must find as to each accused, 572 General verdict — alternative charge, 572 Acquittal of general charge, precludes coTiv. of particular, 572 Where two things constitute offence, both must be found, 572 Conviction of aggravation alone, bad, 572 Verdict doubtful as to what found, bad, 572 But if meaning plain, form no matter, 872, 573 Verdict applying numbers to charges (1st, 2d), 573 Acquitting of one charge and convicting of another dependant for some qualities on the first charge, 573 678 INDEX. Verdict — Verdict — continued. " Guilty of Blealing part of articles," 573 Where case abandoneil, 673, 574 Finding of insanity, 574 Present insanity may be found during trial, 574 Verbal Threat may be criminal, 201 Veritas not pleadable in case of threats, 201, 202 Vessel.— Destroying, 132, 133 Equipping against allies, 264 Jurisdiction over, 276 Violating Graves.— Not theft, 28 Substantive offence, 87, 88 Slightest removal sufficient, 87, 88 Attempt punishable, 88 Vis Major. — Compulsion a defence, 16, 17 Case of wife or child, 17 VlTLATiON of deed, 107, 108 Modus, 420 Voter. — Abduction of, 196 TVanton Mischief. — (133 to 136). See Malicious Mischief. War, Levyikg (253). — See Treason, Let- ter b. Warrant. — To arrest, 285 Any magistrate may grant, 285 Solemnities of, 285, 286 Previous petition or oath not essential, 285 But may be required, 285 Proc-Fiscal nerd not make oath, where authorised to prosecute for public in- terest, 285 Ko objection petition undated, 285 One justice signing sufficiept, 285 Unless statute requires two, 285 May be addressed to private citizen, 286 Indorsation of, 286, 287 Of commitment for trial, 297 Mu.st describe accused and offence, 297 And proceed on signed information, 297 Exceptions to above rules, 298 Double of commitment for trial served on accused, 298 Warrant ok Citation of accused, witnes- ses, and assize, 492 Warrant under Summary Complaint. — Want of, may be fatal, 579, 580 W. to " convene," or for " examination," — not competent to proceed to try, 580 W. to arrest at once not competent, where statute requires service of com- plaint, 580 W. not giving authority to cite witnes- ses in terms of statute, fatal, 581 Warrant of Search, 315, 316 Specific as to place and articles, 315, 316 Bules as to execution as in aiTest, 316 Weakness of Mind. — Not a defence, 16, 16 Flea in mitigation, 20 ■Witness. Weakness of Misd — continued. Ground of recommendation and re- prieve, 20 Makes less resistance constitute rape, 194 Using lewd practices to girl of weak mind above puberty, 229 Weapon, Lethal. — Obsolete aggravation of assault, 180 What held offensive w. in night poach- ing, 217 Weaving Trade Property. — Housebreak- ing with intent to destroy, 85, 86 Weights, Use of false, 109 Whipping, 21 Punishment for assault on Sovereign, 259 Wickedly and Feloniously. — Criminal act is presumed to be done, 2 Use of these words in libel, 370, 371 May override whole narrative, 381 WiFR. — Control of husband in mitigation, 20 Theft from husband, 25, 26 Beset, case held peculiar, 72 Assault on, 183 Not a competent witness, 519, 520 Unless the injured party. 520 Wild Animals.— Theft of, 23, 24 Wilful. — Law presumes criminal act to be wilful, 2 Wilful Fireraising (128 et scq.) — See Fireraising. Wilful Imposition. — See Falsehood and Fraitd, Tetter d. Wilful Mischif.f (133 to 136).—