Slike strani


objection was repelled (1). Where the accused was DESIGNATION OF designed "nephew to Thomas Fraser of Gartmore," Uncertain this was held insufficient, as there were other nephews designation. of the same name (2). But where two prisoners 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 (3).

---," is a Prisoner in the "Present prisoner in the prison of E-, sufficient designation (4), provided the accused be in prison of the jail named at the time of service (5). But where the accused was so designed, the objection was sustained that he had only been half-an-hour in the prison upwards of six months before (6). This might not have been held fatal had the libel



borne now or Now or lately in prison of

-," &c. (7).

two of that name


'lately prisoner in the prison of EAfter conflicting decisions (8), it has been finally This good though decided that it is not a good objection to the designa- in prison. tion "now or lately prisoner in the prison of Ethat there is another prisoner of the same name in the jail at the same time, though both are indicted in similar terms (9). Where the prisoner gives a false false designation

Prisoner giving

cannot object.

1 Donald Stewart and others, Inverness, Sept. 14th 1837; Swin. 540 and Bell's Notes 170.


2 Hume ii. 160, case of Fraser there.

3 Duncan Galbraith and others, Inverary, Sept. 10th 1821: Shaw 54. Such a designation would probably not be sustained now in the same circumstances.- Alison erroneously quotes this case under designation of witnesses.-Alison ii. 415.

Bell's Notes 170.

6 Hume ii. 157, note a.--Alison
ii. 223, 224.-Will. Affleck, Ayr,
April 14th 1823; Shaw 108.
7 Euphemia Robertson and
others, Perth, April 22d 1842; 1
Broun 295 and Bell's Notes 262.


8 The objection was held good in John Robertson, Glasgow, April 1824; Shaw 123.-John Carruthers, Dumfries, Sept. 15th 1827; Shaw 212. - John Wilson and others, H.C., May 23d 1831; Bell's Notes, 170.-Thos. Robertson, Glasgow, Sept. 29th 1837; 1 Swin. 547 and Bell's Notes 170.-The objection was repelled in John O'Neill, H.C., June 2d 1851; J. Shaw 483.

4 Hume ii. 159, 160, and cases of Macintosh: Scott: Van-ni-Frank: Johnston and others: M'Alister: Smith or Gunn: Wilson or Low or Telfer and Taylor there.-Alison i. 224.

5 John Kidd, Stirling, 1837;

9 Mary Maclean, H.C., Dec. 7th 1863; 4 Irv. 449 and 36 S. J. 111.


Material error

Private instance to prosecute.

prosecute be

DESIGNATION or designation on apprehension, or in his declaration, or

in his bail-bond, he cannot object being so named in a libel (1)

II. The person at whose instance the prosecution is instituted must be named and designed, and a material error, such as leaving out his surname will be fatal (2). But, where Sir William Rae was described as of Catherines, instead of St Catherine's the instance was held good (3).

Where the instance is private, it must appear wherein the interest to prosecute consists; as by the

prosecutor being designed as the father of the person Most interest to injured (4).

injured (4). But it may not be necessary that this be Stated at outset ? set forth at the outset if it be sufficiently detailed in

the subsequent narrative.

The terms of the instance must be unambiguous. unambiguous. Where it ran,

Whereas it is meant and shewn us our,” leaving out the word by,” an objection was sustained (5). The objection was certainly critical, and the case shows how great is the importance attached to every word of this part of the libel.

After naming the accused and the prosecutor, the major proposition follows, stating the nature of the

crime. The things absolutely essential to be stated in law the act is a' the major proposition are:- First, that by law; second,

a certain act; third, is a crime (6). In common law charges the major proposition commences—"THAT

Terms must be


Averment that by

crime Preamble.

WHEREAS”. or “ THAT ALBEIT —“ by the laws of

1 Hume ii. 161, and case of Fithie and Sharp there. -Alison ii. 225, 226.

2 Hume ii. 164, case of Anderson in note 1. -Alison ii. 227.

3 Hume i. 246, case of Mackintosh in note -Alison ii. 314.This case, and the one in the previous reference, were cases of discrepancy between the record and the accused's copy.

But if the mission had been in the record

copy the effect would have been the same.

4 Hume i. 380, and case of Leslie there.-- Alison ii. 102.-Herbert v. Duke of Roxburgh, H.C., Dec. 26th 1855; 2 Irv. 346 and 28 S. J. 130.

5 Wil). Crichton, Ayr, May 4th 1821 ; Shaw 62.

6 Hume ii. 156 and cases of Gall: and Steven there, and case of Methven or Wallace in note l.


cludes crimes


"this and every other well-governed realm.” In the MAJOR PROPOSIexpression "common law," are included offences declared to be crimes by ancient statutes, so that under General form inthis preamble the prosecutor may at the trial appeal under old to statutes, which, in course of time, have become trite law (1). Next follows the statement of the statement of the crime" THEFT is a crime of a heinous nature, and "severely punishable." If the name be unambiguous Name used must and well understood, as Murder, Theft, Assault, no further description is necessary. But a nomen juris, if used, must be specific and unambiguous (2).


be unambiguous.



with detail.

writing and sending threatening letters," was held a bad charge, as not implying anything necessarily illegal (3). And the law is jealous of the introduction of any novel nomen juris (4). It is competent Name combined to use a nomen juris and add a more elaborate description, and this is generally done by a clause beginning-" more particularly" (5). But no nomen juris Crime described need be used, and the crime may be described at name, large (6) thus" Opening and keeping a common

without express


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). If there is doubt which of two or more crimes the evidence will substantiate, the prosecutor may combine them thus :-" THEFT, as also Alternative RESET OF THEFT are crimes," &c., this being followed up, as will afterwards be shown, by an alternative charge, that the accused is guilty of one or other of them (8). Different descriptions of the same offence names for same




1 Hume ii. 164, 165 and cases of Hunter: Beaver Watson and others and Pinkerton and others there. Alison ii. 228.

2 Hume ii. 169.

3 Jas. Miller, H.C., Nov. 24th 1862; 4 Irv. 238 and 35 S. J. 52.

4 Walter D. Ure, H.C., Feb. 15th 1858; 3 Irv. 10 and 30 S. J. 310.

5 Hume ii. 169.-Alison ii. 230,

231. Will. Buchan and Alex.
M'Intyre, Dec. 7th 1829; Bell's
Notes 177.

6 Hume ii. 168, 169.-Alison ii

7 Bernard Greenhuff and others, H.C. Dec. 19th 1838; 2 Swin. 236.

8 Hume ii. 169.-Alison ii. 235, 236; Rob. G. Neill, H.C., Feb. 3d 1873; 2 Couper 395.


Several names describing one crime.

MAJOR PROPOST- may be libelled, coupled by the word "or,” to cover

different aspects of the case on 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 as describing only one crime (1). But care must be taken where or” is so used that it does not necessarily read as an alternative (2). It would appear that the same will hold where several words are combined in practice to describe one crime, as “ falsehood, fraud, and wilful im"position,” though the prosecutor proceed afterwards to describe them as crimes, if the subsequent details of the libels 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, but Too lavish use of separated by such words as as also ” (3). A too

lavish use of alternatives, which may mislead the accused or compel him to be prepared to meet a great variety of cases without sufficient reason, will not be permitted (4).

Where what is not a crime at common law, or by statute, the act ancient law, is declared criminal by the legislature, the must be quoted.

statute must be quoted in the major proposition (5). Statute is quoted

And it is the practice where a statute passed since the if special penalty Union, and which it is proposed to found upon, intro

duces anything to the prejudice of the accused, contrary or in addition to the common and ancient statute law estimate of the offence, to libel the statute


Crime by special

common law offence.

1 John M‘Rae or M.Crae and Catherine M‘Rae or M'Crae, Glasgow, Sept. 20th 1842; 1 Broun 395 and Bell's Notes 175.

2 Geo. Arrol, Dumfries, May 5th 1869; 1 Couper 250.

3 Jas. Maitland, H.C., Feb. 7th 1842; 1 Broun 57.-Rob. Smith and Jas. Wishart, H.C., 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 Russell or Inglis, H.C., June 29th 1863; 4 Irv. 418 and 35 S. J. 611 (Lord Justice - General Macneill's opinion).

6 Alison ii. 228.


"THAT ALBEIT by an Act passed in the .


<< "

'year of the reign of her present Majesty, Queen Vic-
"toria, chapter . . .
. . and entituled an Act for con-
solidating and amending the laws against offences
relating to the coin,' it is enacted by section . . . of
"the said Act, that, &c.,"-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, WHEREAS, 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 offences and penal-
ties (1).


[ocr errors]
[ocr errors]

1 Hume ii. 166, 167.-Alison ii. 228, 229.

2 Alison ii. 229; Will. Hardie, Jan. 24th 1831; Bell's Notes 170.John Docharty and Philip Docharty, Glasgow, Jan. 1831; Bell's Notes 170.-Eugene E. A. Whelps, H.C., July 25th 1842; 1 Broun 378.-Geo. Duncan, H.C., Dec. 21st 1852; 1 Irv. 130.-Will. Newman, H.C., July 14th 1856; 2 Irv. 439.

3 John Stuart and Catherine

[ocr errors]
[ocr errors]

statute quoted.

At one time this

The whole clause should be given, though much of Whole clause of it may not apply to the case (2). was not strictly attended to (3). But it may not be necessary to quote the whole of a clause which does not specify the offence, but only makes provision for the trial of accessories as principals, or the like (4). If the Act be described, and the section quoted Title not quoted properly, it is not necessary to quote the title (5). Where the charge is under one section, which makes One section respecial reference to another section, upon which its other both intelligibility depends, it is necessary to quote that other (6). But the explaining section is held to be Explanatory quoted narrativè only, and therefore, it is no objec- though Court no

ferring to an


section quoted jurisdiction.

Wright or Stuart, H.C., July 14th
1829; Bell's Notes 170.-Michael
Broggan, 1830; Bell's Notes 170.

4 Geo. W. Holmes, H.C., March
1st 1869; 1 Couper 221 and 41 S. J.
318 and 6 S. L. R. 389.

5 Will. Maclaren, H.C., 23d May 1836; 1 Swin 219 (this point is not mentioned in the rubric), and Bell's Notes 171.

6 Thos. Lauder and Will. Longmuir, Ayr, May 1st 1844; 2 Broun 177.




« PrejšnjaNaprej »