« PrejšnjaNaprej »
MODE OF TAKING taken by the use of a slate, the copy made from the slate being read over by the accused before signing (1). No pressure may be put on the prisoner, by rapid or perplexing examination (2). But it is not per se an 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).
Examination must be fair.
Procedure where articles are shown to prisoner.
The declaration is signed by the prisoner and the magistrate. If the prisoner refuse to sign, or be, or pretend to be, unable to write, a statement of the fact is added, and the magistrate signs in his presence (4). Where it was objected that a declaration was not signed, that which was not separately signed being written on the same piece of paper with that which was signed, and bearing that the examination had been continued from the previous day at the request of the accused, the objection was repelled, the whole writing being held one declaration (5).
When articles are shown during the examination, they are imported into the declaration by the sealed labels, (which are now invariably attached, for purposes of identification), being signed as relative to the declaration by the prisoner and magistrate, 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 AUTHENTICATION be taken before two witnesses (1). They must understand the language spoken by the prisoner, if he Must understand cannot speak English (2). The witnesses sign the language. declaration (3), in practice, only on the last page (4), Witnesses and it is not indispensable that they should add signing. "witness to their signature (5). In an old case, a Can signature of short declaration was received, though one of the witnesses had not signed it, he swearing to its contents (6). But it may be doubted whether this case would be followed now. In a case in the High Court about the same time, the signature of the witnesses was held indispensable (7).
witness be dis pensed with?
service of libel,
either on motion
A prisoner may be examined on declaration after commitment for trial (8), but not after service of libel (9). The discovery of important evidence is ground for re-examining the accused (10). Any number of prosecutor or of declarations may be taken if the proceedings be not oppressively conducted, and the prisoner may demand re-examination (11). When re-examined, any declara- Previous declarations already taken must be read over to him (12). But this applies only to re-examination on the same charge, not to examination on a different charge (13),
tions read over.
Is reading of
copy sufficient? Question when
previous must be read.
though it may tend to throw light on the first charge (1). In one case of re-examination, at the prisoner's request, a second declaration was received, though only a copy of the first had been read over (2). As regards the time at which the previous declaration must be read, the report of one case (3) indicates that it has been held that the first declaration need not be read over before the new examination is proceeded with, if it be read during the course of the second examination. If this report be correct (which from its terms seems questionable), it is thought that the decision is unsound. It is inconsistent with fairness not to read over the first declaration before calling upon the accused to submit to re-examination.
The absolute verbal strictness of a formal document is not required (4). A trifling erasure (5) or deletion Erasure or dele- (6), which can cause no prejudice will not invalidate
Where a declaration, written upon six pages only, bore to be written upon "this and the six preceding pages," the Court repelled an objection to it (7). Where a declaration was dated 1847 instead of 1848, Clerical error in the Court, after proof that the error was clerical, admitted it (8). Where the accused could not write, and the clerk added that the Sheriff signed for him, Omission of a "he not having been taught to," but accidentally omitted the word "write," an objection to the declaration was repelled (9). It is usual in the preamble to
NOT A STRICTLY
not to state accused
the previous declara
Or that freely
state that the prisoner was cautioned as to his privi- DECLARATION lege to decline to answer, and where he had emitted a FORMAL DOCUprevious declaration, that this declaration was read over to him, and that he adhered to it, and it is unusual to state in the docquet at the end that declaration was freely and voluntarily emitted while the accused was in his sound or sober senses, but it emitted when is not a good objection to a declaration that these facts, or any of them, are not stated in it (1). Where the declaration had been taken through an interpreter, the objection that the declaration did not bear that he was sworn, was repelled (2).
When the accused has been examined, he may be PROCEDURE committed for trial or for further examination-if the TION. latter he is not entitled to bail, and therefore the con- trial or further finement must be for a reasonable time (3). What may be a reasonable time depends on circumstances (4). But Close confinewhatever be the duration of commitment for examina- eight days. tion, close confinement is not lawful for more than eight days from the first commitment (5).
1 Jane M Pherson or Dempster and others, H.C., Jan. 13th 1862; 4 Irv. 143 and 34 S. J. 140. (No statement that caution given). As to this point see also Duncan v. Ramsay, Aberdeen, April 15th 1853; 1 Irv. 208 (Lord Wood's judgment and note).-Alex. Duncan and Samuel Hippesley, AberIdeen, 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 voluntarily emitted). Chas. Galloway and Peter Sutherland, Nov. 10th 1829; Bell's Notes 241 and Helen Hay,
Perth, Oct. 8th 1858; 3 Irv. 181
2 Murdo Mackay and others,
3 Hume ii. 81, 82.-Alison ii. 134, 135.-Fife and M'Laren v. Ogilvie and others, July 29th 1762; M. 11750.-Andrew v. Murdoch, June 20th 1806; F. C., vol. 13, p. 569.
4 Arbuckle v. Taylor, April 27th, May 1st, and July 10th 1815; 3 Dow's Appeals 160 (Lord Chancellor's judgment, p. 184).
5 Act 1701, c. 6.
ment limited to
Warrant must specify crime.
Signed information need not be formal.
warrant will be suspended.
Rules not applicable to taking
peace or petty
In general, three things are essential to a commitment for trial.
First, a signed warrant, precise in the 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 (1).
Second, a specification of the crime in the warrant, not merely by naming it, but by a general statement ; e.g., that the accused did murder A. B. by stabbing him, and stating place and day (2). These particulars are generally given by subjoining the warrant to the petition.
Third, a signed information, which need not be a formal document, a letter even being sufficient (3).
Where a warrant is defective in any of the three essentials, the Court of Justiciary will suspend it and liberate the accused, if, on intimation to the person concerned, he do not obtain and have served a sufficient warrant (4).
These rules do not apply to the case of inferior magistrates taking security for keeping the peace, or cases of riot, &c. 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 (5). There may be cases where a warrant to arrest may at once order commitment, as where a judge orders imprisonment for contempt of Court (6), or for indignity offered to him as a magistrate (7), or for prevarication (8), or commits a person to prison till liberated in due course
1 Act 1701, c. 6.-Hume ii. 84.
2 Hume ii. 85.-Alison ii. 153.-
3 Hume ii, 85.-Alison ii. 154.
and Calder there.-Alison ii. 159, 160.
5 Act 1701, c. 6.-Hume ii. 84, and case of Swinton v. Spence there. Alison ii. 152, 153.
6 The subject of Contempt of Court will be noticed later.
7 Burnett 328, case of Dunbar in note *.
8 Adam Baxter and others, H. C., Mar. 4th 1867; 5 Irv. 351.