DILIGENCE TO PRECOGNITION. both as regards the competency of examining any individual (e.g. the prisoner's wife) and the questions to be put, should be followed (1). Witnesses should not be examined in the presence of other witnesses (2). Where writings or other articles are to be used at the trial, the party who proposes to do so, whether he be public prosecutor (3), private prosecutor (4), or and after service accused (5), may obtain a diligence to recover them by petition to the Court; and this either before or after service of an indictment (6). RECOVER Granted to both of libel. SEARCH Search warrant specific. open all places illegal. Where it is necessary to search for stolen goods and the like, authority to do so is usually craved in the application for warrant to arrest, but a special search warrant may be asked for (7). It should specify the things to be seized, and the places to be searched. A Warrant to break general warrant to break or force open all shut and "lockfast places is illegal (8). A warrant may be granted to search repositories of a person charged with a crime, for all articles tending to establish his guilt (9). 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, was held illegal (10). In executing a search Warrant to search for papers specially guarded Execution of search warrant. 1 Alison ii. 138, 139. 2 Hume ii. 82.-Alison ii. 141. 4 Rob. Wilson, Jan. 23d 1834; 5 Hume ii. 402, case of Mackenzie and others in note 3.Alison ii. 622, 623.-Geo. Cameron, March 13th and April 2d 1832; Bell's Notes 285. 6 Hume ii. 393. Alison ii. 145, 146. 8 Hume ii. 78.-Alison ii. 147.Webster v. Bethune, H.C., Feb. 7th 1857; 2 Irv. 596 and 29 S. J. 185. 9 John Porteous, H.C., July 2d 1867; 5 Irv. 456. 10 Bell v. Black and Morrison, H.C., Jan. 30th 1865; 5 Irv. 57 and 37 S. J. 247. WARRANTS. warrant, officers must proceed generally on the rules SEARCH applicable to warrants to arrest (1). ARTICLES. ments signed by All articles connected with a crime, except docu- LABELLING ments, are in practice labelled when taken possession of by the authorities, the labels being attached by Labels or docucords sealed to them, and all persons to whom they witnesses. are shown in the preliminary investigations are called on to sign the labels, that they may the more readily identify them at the trial (2). In the case of documents it is usual to have the signatures placed upon the documents themselves. But though these precautions are usual, they are not indispensable, nor are the statements written on labels or articles binding upon the prosecutor (3). 1 Hume ii. 80.-Alison ii. 146, 147. 2 Hume ii. 83. 3 See Joseph Allan or Mulholland, Glasgow, May 6th 1844; 2 Broun 172. To save repetition it may be mentioned here that a good Indictment or criminal letters. INDICTMENT. FORM OF LIBEL. WHERE it is proposed to try the accused by jury, a written accusation must be served on him either by indictment or by criminal letters. Prosecution by indictIndictment com- ment is the privilege of the Lord Advocate, but a Lord Advocate. private prosecutor may be associated with him in an indictment as joint prosecutor (1). Other prosecutions are by criminal letters, a form which the Lord Advocate may also use. petent only to Commencement of indictment. Criminal letters in the Supreme Court. In the Sheriff THE ACCUsed. An indictment commences thus:- "John Brown, "now or lately prisoner in the prison of Glasgow, you (( are indicted and accused at the instance of Edward Gordon, Esquire, Her Majesty's Advocate for Her Majesty's interest: THAT,"-&c. Criminal letters are in the form of a summons, and run in the name of the Sovereign in the Supreme Court:" Whereas it "is humbly meant and complained to us by our right trusty Edward Gordon, Esquire, our Advocate for our interest, upon John Brown, now or lately prisoner in the prison of Glasgow: THAT,"-&c. In the Sheriff-Court the letters run in the name of the judge:" Whereas it is humbly meant and complained to me by Maurice Lothian, Procurator-Fiscal "of Court for the public interest, upon," &c. In both forms up to this point, two things are important -first, the designing of the accused; and, second, the instance. DESIGNATION OF I. The accused must be properly named and designed. James Stobie and William Berry were dismissed from the bar, having been indicted as William 1 Hume ii. 155, and case of Storie there.-Alison ii. 217. THE ACCUSED, ing. Scobie and Alexander Berry; as was Alison Duncan, DESIGNATION OF who was indicted as "Elizabeth or Ally Duncan. Where the name given is a different name according to common apprehension, as where Law is changed to Low, there is ground for objection (1). It is a good objection that the proper surname is not given, but an occasional nickname (2). But it is not fatal Incorrect spellthat the spelling is slightly wrong, if the name be substantially the same, as Darymple for Dalrymple, Rae for Ray (3). Even Elspeth has been held no misnomer for Elizabeth (4). It is true that one Cain was held not properly indicted as Kane, but probably because of the very great difference of spelling, and the fact that the prosecutor knew the proper spelling, the libel setting forth that he had been previously convicted of theft under the name of Cain, which was his true name (5). A prisoner who assumes Accused assum false names when in custody, or at his examination, or in finding bail, will not be afterwards permitted to maintain that his true name is different (6). Where a person is known by, or gives different Person known by names, it is customary to insert all, coupling them with an "alias," but the prosecutor cannot be called on to give all the names by which a person has 1 Hume ii. 157, 158, and cases of Stobie and Berry; and Duncan there. Alison ii. 221, 222. 2 Hume ii. 158, case of Kennedy there. 3 Hume ii. 158. -Alison ii. 222. 4 Hume ii. 159, case of Robertson there, and case of Begg in note 1.Alison ii. 222. 5 Hume ii. 157, note a.-Alison ii. 221, 222.-Will. Kane, Glasgow, Sept. 24th 1823; Shaw 106. 6 Hume ii. 161, and cases of Brown: Robertson or Wilson: Young or Thompson or Marshall: and Sharp there.-Alison ii. 225, 226. Alex. Adam, Perth, April 21st 1825; Shaw 136.-John Fin- ing false names. different names. THE ACCUSED. but others in correct. DESIGNATION OF passed (1). From cases mentioned by Hume (2), it might appear that there is a good objection if a name be given by which the prisoner has never True name given, passed, though others be quoted by which he has passed. But the cases as quoted are not decisive, and there seems to be no principle for holding that if the accused is indicted under a name admittedly correct, the mere fact that another name is added as an alternative under error shall stop the trial of the accused under the correct name. Whatever may be the decision upon this question when it shall truly arise, it is settled that where an alias is given merely to prevent doubt as to pronunciation, as Braid alias Baird, it is no objection that the accused has never passed by one of the names (3). Naming married women. Designation of accused. wrong. A married woman should be indicted by her husband's name, but there is no objection to the addition of her maiden name- "Jane Johnston or Burn" (4). And the maiden name may suffice, if she continue to be called by it, and be known at the place where she lives by no other name (5). If the accused be described as residing in a wrong parish or county, or as of a wrong trade, this will be Parish or trade fatal (6). Where a prisoner was designed "shop"keeper in Maryburgh, in the parish of Dingwall," it was objected that Maryburgh was in Fodderty. The fact was that Maryburgh, including the accused's shop, was in Fodderty, but that one or two houses in Maryburgh, including his dwelling, were in Dingwall, and the 1 Hume ii. 162.-Alison ii. 228. 3 Hume ii. 157, note a.-Alison rie, Glasgow, Dec. 1833; Bell's Notes 169. 5 Agnes Ogilvie, H.C., July 18th 1842; 1 Broun 376 and Bell's Notes 169. 6 Hume ii. 158, and case of Watson and others there.-Alison ii. 221, 223, 224.-Will. Brown, Ayr, April 14th 1823; Shaw 109. |