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Can same act constitute crime and offence and high crime and offence.


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within the meaning of the, Statute (1). It is competent where a person is accused of two separate acts, one of which is a crime and offence under the Act, and the other, in combination with the first is a high crime and offence, to charge them cumulatively (2). But the question whether a person can be charged cumulatively with a “ crime and offence

and " ' high crime and offence,” under a narrative relating only one act of contravention of the Statute, is not satisfactorily settled by the decisions. Where the libel charged the accused as guilty of both, and the subsumption 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the Court entertained grave doubts of the competency of such a cumulative charge, and the “crime and offence ” was withdrawn (3). In some previous cases, this cumulative form passed without objection (4), and in one case an objection to it was repelled (5). But it is thought that such a charge, where only one act of contravention 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,” involving liability to

1 John Mooney, H.C., Dec. 8th 1851; J. Shaw 509.-See also Margaret Brown, Nov. 9th 1833 ; Bell's Notes 131.

2 Chas. S. Davidson and Stephen Francis, H.C., Feb. 2d. 1863 ; 4 Irv. 292 and 35 S. J. 270 (Indictment). -James Wilson and Elizabeth Rox or Wilson, Perth, Sept. 17th 1866 ; 5 Irv. 302 and 2 S.L.R. 274.

Mary Watson, Glasgow, Deo 21st 1858 ; 3 Irv. 306.

4 Jean Forbes, July 14th 1835; Bell's Notes 133.—Elizabeth Brown,

Jan. 16th 1837 ; Bell's Notes 133. Margaret Robertson, Nov. 20th 1837; Bell's Notes 133.

5 Rose Ann M'Adam, H.C., July 12th 1847 ; Ark. 326.-The opinion of the Lord Justice Clerk Hope which is quoted in the report, and which was favourable to the relevancy, 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 very strongly.

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repeated utter

a different punishment. But if it were competent Coinino.
to charge the same species facti, as constituting both
"the crime and offence" and the “high crime and

offence,” the accused would be liable to a punishment combining the penalties of both, and exceeding the punishments prescribed by the Act for the case of a person guilty of the “high crime and offence," which would be a result inconsistent with the whole purpose of the Statute.

It is of course competent to charge guilt of the crime and offence, or of the high crime and offence alternatively.

In cases of repeated uttering under $ 10, the coin What constitutes uttered


the second occasion must be a different ing. coin from that uttered on the first. It does not constitute the aggravated offence under that section, that a person bas repeatedly tendered the same coin (1). It is not competent to charge a contravention of the Where separate sections relating to uttering, and at the same time of ing and possesthe sections making it a crime to possess coin, where possessed must the coins possessed by the accused are the same coins those uttered. as those uttered (2).

No substantial interval of time between the one offence and the other is necessary to constitute repeated uttering. 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, they were convicted under the above section (3).

The punishments have been already stated. Where PUNISHMENT. solitary confinement is ordered, it may not exceed one


1 Anderson v Blair, H.C., Jan. 14th 1861 ; 4 Irv. 5.

2 Matthew Weir and Jacob Hull, Glasgow, April 21st 1864; 4 Irv. 495 and 36 S. J. 556.-See also Jas. Graham, Dec. 10th 1832 ; Bell's Notes 135.

3 Matthew Weir and Jacob Hull, Glasgow, April 21st 1864; 4 Irv. 495 and 36 S. J. 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.



month at a time, or more than three months in each year (1).


This crime consists in wilfully setting fire to any house, store, barn, or other building, or to growing or stored corn, or to growing wood, or to coalheughs (2). Even where the building was a railway labourer's hut, and uninhabited, the crime was held to be wilful fire-raising (3). Some part of the subject must have been laid have taken fire. hold of by the fire to complete the offence (4). But

Some part of subject must

if a portion have actually taken fire, the crime is fireraising, no matter how little has been consumed (5), provided the act of the accused was directly the cause Incendiary need of the building being on fire (6). It is not necessary

not directly apply fire to subject.

that fire should be applied to the subject.

If fire be applied to furniture in the house, or to an outhouse or wooden shed built against it, and the fire seize upon the house, or if fire be applied 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, the crime is the same as if the application had

1 By § 38 power is given, in lieu or in addition to punishment, to ordain an offender to find security for good behaviour for a certain time, but as it uses phraseology adapted only to English cases, it may be doubted whether it applies to Scotland.

2 Hume i. 125, 126, referring to statutes 1525, c. 10; 1540, c. 38; 1592, c. 148; 7 Anne c. 21; 1 Geo. i. c. 48.-i. 131, 132, cases of Cunningham: Fraser : Buchanan: Young: Donald and Oliver: Thompson: Brown: and Paterson there. -Alison i. 441.

3 John Vallance, H. C., Nov. 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 Ross, Inverness, Sept. 26th 1822; Shaw 79.-Peter Grieve, H.C., June 18th 1866; 5 Irv. 263 and 2 S.L.R. 88.

5 John Arthur, H.C., March 16th 1886; 1 Swin. 124 and Bell's Notes 48, (Lord Justice Clerk Boyle's charge).

6 Alexander Pollock, Ayr, May 7th and 8th 1869; 1 Couper 257.


case of extreme

been direct (1). In short, if fire be kindled so as to SCOPE OF TERM 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 extinguished (2). Intention will be implied from such conduct as Intent implied in indicates utter disregard of the likelihood of the fire recklessness. spreading. If a lawless mob set fire to premises, Mob setting fire without any specific intention, as by piling up furniture in the streets and setting it on fire, in consequence of which the flames seize on houses, the mob is guilty of fire-raising (3). One case of this sort Fire-raising in

prison-breaking. has raised a difficult question, viz., whether burning a gaol door for the purpose of escape constitutes wilful fire-raising (4). Hume is of opinion, and it is thought rightly, that if a mob trying to rescue prisoners burn their way into the prison, they are guilty of fireraising (5.) The object of applying fire is criminal, and the guilty parties shew utter recklessness whether the entire building be consumed or not (6). But if a Thief accident

ally firing house. thief accidentally set fire to a house, this is not wilful fire-raising (7.) A proprietor who burns his house while it is Burning

by landoccupied by a tenant, is guilty of fire-raising (8); as is the tenant if be set fire to it (9). Whether the

1 Hume i. 129, and cases of i. 404, where he says “ fire-raising Hamilton and Campbell : and Cros- “ is equally committed by burning a san in note 2.--i. 130 and case of gaol or any part thereof, as any Douglas there and case of Fallas- • private and ordinary habitation." dale or Drysdale or Anderson in -Alison i. 435. note a.-Alison i. 431 to 434.-More 6 See Neil M'Queen, Inverness, ii. 392.

April 1840; Bell's Notes, 181. 2 Hume i. 127 to 130.-Alison i. 7 He may be liable to be punished 430.-John Arthur, H.C., March for Culpable and Reckless Fire16th 1836; 1 Swin. 124 and Bell's raising. Vide next page. Notes 48; (Lord Justice Clerk 8 Hume i. 133, and case of BuchBoyle's charge).

anan there.-Alison i. 437. 3 Hume i. 130, 131.-Alison i. 434. 9 Hume i. 132.-Alison i. 435, 436,

4 Jean Gordon or Bryan and and cases of Drysdale: Martin : others, Aberdeen, April 22d 1841; 2 Gillespie and others : and SutherSwin. 545 and Bell's Notes 48.

land there. 6 Hume i. 131.-See also Hume


lord or tenant.


Setting fire to own building to


gurers and fire spreading.


Burning shed or movables.

same would be held in the case of fire-raising by the landlord where the tenant was not yet in occupation, or where the only right in the other party was one of

lien or security is not decided (1). But it is unburn'neighbouris

. doubtedly 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 may take fire, and this result follow,

And it is no defence that what he set fire to was his Or to defraud in- own property (2). The same holds if a neighbour's

house be burned in consequence of one having set fire to his own house for the felonious purpose of defrauding insurers (3).

Besides the crime of wilful fire-raising, there are many cases in which it is criminal to set fire to a subject (4). Thus, it is a crime to set fire to a detached shed or to a stack, not of corn, but of hay or wood, or

to burn another's furniture or other movable property. Burning own

A person may even be liable to punishment for setting danger of neigh- fire to his own property, to the danger of his neigh

bour, although the fire was not intended to spread, and did not in fact spread to his neighbour's property (5).

It is criminal to set fire to one's own property, to defraud insurers, though there be no danger to the property of others (6). 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 (7).

If property be consumed by fire, in consequence of gross recklessness, the person causing the fire will be criminally responsible, although there was no intention

property to

Fire to defraud insurers.

Fire caused by recklessness.

1 Hume i. 133.-Alison i. 437.

2 Hume i. 130, 134.- Alison i. 438.—More ii. 392.

3 Hume i. 25, 134 (Hume states
the point as undecided).-Alison i.
439.-More ii. 392.

4 Hume i. 135.-Alison i. 442.
6 Hume i. 134.-Alison i. 438.-

See also John Arthur, H.C., March
16th 1836 ; 1 Swin. 124.

6 Hume i. 134 and cases of Ker: and Muir and Cant there.-Alison i. 438.-Chas. Little, Glasgow, May 1st 1857 ; 2 Irv. 624.

7 Rob. Lawson, Perth, April 12tb 1865; 5 Irv. 79 and 37 S. J. 417.

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