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If the crime of which the accused has been previ- AGGRAVATIONS. ously convicted be substantially that of which he is Case of slight accused, it does not follow that the conviction cannot tween conviction be founded on, because there is a trifling variation between the description of the one offence and of the other. Thus, falsehood, fraud, and wilful imposition, may be charged as aggravated by a previous conviction of falsehood and fraud (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)..

It is a general rule that the previous conviction must Previous convichave been in a Scottish Court where it is founded on part of kingdom. at common law, but in some cases convictions obtained in other British Courts have been admitted. A conviction of theft in England is received as an aggravation of a theft committed in Scotland (3). Also where the prosecution was under a British Act of Parliament, an English conviction under it was admitted (4). But a

But a recent Statute has removed the difficulties which formerly stood in the way of using previous convictions obtained in one part of the United Kingdom, in another part, it being now enacted that “a previous conviction “ in any one part of the United Kingdom may be

proved against a prisoner in any other part of the


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1 Rob. Gunn, Aberdeen, April 1832 ; Bell's Notes 33.

2 Samuel Deans, September 1839; Bell's Notes 33.-See also case of Will. Liddell ; Bell's Notes 33.-See also the case of Chas. S. Davidson and Stephen Francis, H.C., Feb. 2d 1863 ; 4 Irv. 292 and 35 S. J. 270, where a previous conviction of an offence under the name of “misdemeanor was received, though, according to Scottish rules, it would have been called a “ crime and offence."

3 Kenneth M'Crae, Perth, April 1839; Bell's Notes 33.-Jane MacPherson or Dempster, and others, H.C., Jan. 13th 1862; 4 Irv. 143 and 34 S. J. 140.

4 Chas. S. Davidson and Stephen Francis, H.C., Feb. 2d 1863 ; 4 Irv. 292 and 35 S. J. 270. The conviction was not used in the form of an aggravation, but to enable the prosecutor to charge the accused with "a high crime and offence." But the principle is the





Weakness of mind.

“ United Kingdom, and this whether obtained before “ or after the passing of the Act” (1).

Pleas in mitigation of punishment are numerous,

and those which have special application to particular Good character. offences, will be noticed later.

Previous good character is a plea which needs no comment. The plea of youth, where there is no indication of depravity, always receives weight; especially so where parents

have led a child to crime (2). Leniency is also Influence of

extended to a wife where it is reasonable to presume husband.

that she acted under her husband's influence, unless there be evidence which shews that she was art and part of her own free will (3). Lastly, where there is weakness of mind, not such as to infer irresponsibility, punishment is often mitigated (4). In capital cases, where the court must pronounce sentence of death, a recommendation to mercy on the ground that the accused is of weak intellect, often leads to a reprieve (5). And it was laid down in one case of murder, that weakness of mind was an element which might be taken into consideration in determining whether the act done was murder or only culpable

homicide (6) PUNISHMENTS. There are three classes of punishments in general

use—death, penal servitude, and imprisonment with or without hard labour, and solitary confinement (7).

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1 Act 33 and 34 Vict. c. 112

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Deenney or Denny Scott, Glasgow,
January 4th 1853; 1 Irv. 132.- John
M‘Fayden, Glasgow, Dec. 28th and
29th 1860; 3 Irv. 650.

6 Alexander Dingwall, Aberdeen, Sept. 19th and 20th 1867 ; 5 Irv. 466 and 4 S. L. R. 249.

7 Under local police Statutes power is sometimes given to sentence juvenile offenders to be whipped, and under the Acts 17 & 18 Vict., c. 86, and 29 & 30 Vict., c. 117, certain classes of juvenile offenders may be ordered to be detained for terms varying from three

2 Hume i. 49, 50, and case of Urquhart in note 3.- Alison i. 671, 672.

3 Hume i. 47, 48, 49.-Alison i. 668.-Harris and Alithia Rosenberg, H.C., June 13th 1842 ; 1 Broun 367 and Bell's Notes 7.

4 Will. Braid, March 12th 1835 ; Bell's Notes 5.-Thos. Henderson, March 13th 1835; Bell's Notes 5.

6 Hume i. 38, and case of Bonthorn there, and case of Campbell in note 3.-Alison i. 653, 654.–Jas.



The additional penalties conjoined to the punishment of death in certain cases, will be noticed in treating of Death. the special offences. Penal servitude may be for life, Penal servitude. or any term not less than five years (2). Imprison- Imprisonment. ment, though authorised for four years by some statutes, is seldom inflicted for more than two years. Solitary confinement is limited by most recent statutes to one month at a time, and not more than three months in each year.

Banishment from Scotland and public whipping are competent punishments for certain special crimes, which will be noticed later.

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Money lent.

Theft is the felonious taking and appropriation of property without the consent of the

person to whom it belongs, or in whose possession it is. The Thing must be thing must at the time be truly the property of truly property of another.

another (1). If the owner has given even a limited right to it, as by loan (2) or pledge, as with a pawnbroker (3), the person to whom such right is given

cannot be guilty of theft in appropriating it, though he selling pledges.

may commit fraud or breach of trust. Where one had lent another £20, and the borrower secreted a £5 note, and asserted he had only got £15, a charge

of theft of the £5 held ill founded (4). Article taken on Also where a person got a watch on trial, to be paid

be paid for or returnedfor or returned by a certain day, and sold the watch

without paying for it, it was held that there was no theft (5). In these cases there was a limited right of

property conferred by the owner. Retaking goods But cases may occur where the lawful possession seized by excise, or poinded. being with another, as where goods have been seized

by revenue officers, or poinded, there may be nice questions as to whether the taking be theftuous or not.

An indictment for theft by taking goods seized by excise officers, seems to have passed with


1 Hume i. 77.

2 If the loan be only for a specific time and purpose, appropriation may amount to theft.

3 Agnes M‘Ginlay or Docherty, and Will. Docherty, Glasgow, May 1st 1843 ; 1 Broun 548 and Bell's Notes 10.-Catherine Crossgrove or

Bradley, H.C., Feb. 6th 1850 ; J.
Shaw 301.

4 Brown v. Proc.- Fiscal of Dumfries, Dumfries, April 22d 1846 ; Ark. 62.

5 Cowan v. M‘Minn, H.C., Jan. 8th 1859; 3 Irv. 312 and 31 S. J. 123.


out objection (1). Hume considers such an act to be not strictly within the limits of theft (2). But if goods have once been condemned by authority, there Goods conis no reason to doubt, that if the person from whom they were seized carry them off, he is guilty of theft; the condemnation having divested him.

In the case of wild animals, there can be no theft, Wild animals. unless they have truly become possessions (3), by being killed or captured, or being confined, as deer in an enclosure, rabbits in a house or warren, or pigeons in a dove-cot (4).

As regards the question what shall be What is sufficient held capture, an indictment passed without objection, which libelled theft of herrings, the property, or in the lawful possession of a fisherman, they being enclosed in a net attached to his boat, and being thus "within" his "power and control.” The theft was committed by cutting the net (5). By special statutes, wilfully and knowingly taking oysters or mussels from beds, Oysters and the property of others, and sufficiently marked out or known as such, is theft (6). And where persons had authority to take oysters of a certain size from a bed,



1 James Munro and others, Inverness, April 1833 ; Bell's Notes 23.-There are numerous indictments in the Collection in the Advocates' Library, where this crime is charged alternatively as theft, or as a minor offence.

2 Hume i. 77, note 1.-The cases of Williamson and Lockbart, cited by Burnett (118, 119), and the case of Macdonald and Chisholm, quoted by Alison (i. 272), are not so distinctly reported as to indicate that such an offence was ever truly held to be theft. The strongest statement made by the latter is not borne out by the reference given to Burnett, for while Alison states that in the case of Williamson the Court disregarded a certain plea, Burnett's report does not bear

that the Court took any action in
the matter.

3 Wilson v. Dykes; H.C. Feb.
2d 1872 ; 2 Couper 183 and 44 S.J.
251 and 9 S.L.R. 271.

4 Home i. 81, 82, referring to old statutes ; 1474, c. 601535, c. 13—1587, c. 59—1579, c. 84Alison i. 279, 280.

8 John Huie, Inverary, Sept. 10th 1842: 1 Broun 383 and Bell's Notes 26. This is consistent with the whale fishing rule, that as long as a boat is connected with a whale by line and harpoon, no one may take the fish from that boat.

6 Acts 3 and 4 Vict., c. 74-10 and 11 Vict. c. 92. The only reported case under either statute is that of Rob. Thompson and Geo. Mackenzie, H.C., Dec. 26th 1842; 1 Broun 475.


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