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thereto.

Interpretation clause not

MAJOR PROPOSI- tion to so quoting it that the Court before which the

charge is brought has no jurisdiction under it (1). Act embodying Where a statute embodies the enactments of another reference made law by reference, (e.g., the statute against incest, which

refers to the 18th chapter of Leviticus,) it is usual
besides quoting the statute, to make an averment to
bring the case within the sanction of the law referred
to. Thus, in the case of incest, after quoting the
statute, it is usual to add such a statement as :-
And albeit, father and daughter are of such persons
“ in degree as are so forbidden in the said eighteenth

chapter of Leviticus.” It is not imperative to quote quoted. a section which gives an interpretation of words used in the clause specifying the offence (2).

Where a Act modified by statute has been modified by a subsequent Act, the

latter must be quoted (3). In the case of a statute Must renewing passed for a certain time and renewed by a subsequent

statute, the question has been raised but not decided, whether the Act renewing it must be quoted (4), but there are obiter dicta against the necessity of doing so (5). A statute merely conferring jurisdiction (6), or giving power to mitigate punishment, or to substitute one punishment for another, as for example, the statute substituting penal servitude for transportation, need not be quoted (7). Nor is it necessary to quote a statute conferring power to make regulations

later, both quoted.

statute be quoted.

Statutes confer-
ring jurisdiction
not quoted.

John M‘Nab and others, H.C.,
March 14th 1845 ; 2 Broun 416.

2 Jas. Graham, 10th Dec., 1832;
Bell's Notes 172.-Geo. Duncan,
H.C., Dec. 21st 1852; 1 Irv. 130.

3 Jas. Martin, H.C., Nov. 16th 1835 ; 1 Swin. 5 note, and Bell's Notes 171.

4 Will. Maclaren, Perth, April 14th 1836; 1 Swin. 177 and Bell's Notes 172.

Same case, H.C., May 23d 1836; 1 Swin. 219 and Bell's Notes

6 Richard F. Dick and Alex. Lawrie, H.C., July 16th 1832; 4 S. J. 594 and 5 Deas and Anderson 513 and Bell's Notes 172. - Will. Mackenzie and others Stirling, April 25th 1844; Lord Justice Clerk Hope's MSS.

7 John Nellis or Neillus, H.C., May 20th 1861 ; 4 Irv. 50 and 33 S. J. 456.-John H. Greatrex and others, H.C., May 9th to llth, 5 Irv. 375 and 39 S. J. 388 and 4 S. L. R. 3.

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TION.

where it is intended to found on the regulations (1), MAJOR PROPOSIor a statute giving facility in libelling, e.g., the Postoffice Statute, giving the prosecutor the right describe letters, &c., as being the property of Postmaster-General (2).

Substantive aggravations must be set forth thus :—" THEFT, especially when committed by a "person who is habit and repute a thief, and has "been previously convicted of theft":"ASSAULT,

especially when committed with loaded firearms, to "the effusion of blood and serious injury of the

person ":" ASSAULT, especially when committed

unaggravated offences together.

un

Iwith intent to ravish." Where more than one act Aggravated and of the same crime is to be charged, and the aggravation does not apply to both or all of the acts, they need not be separately named "theft (as also theft) "especially when committed by means of housebreaking," the words in brackets being necessary (4). And where a crime is charged along with a statement of a specialty, as "theft, particularly "horse-stealing," it is competent to prove the theft of other things besides horses (5). Where there is more Aggravation than one prisoner, and an aggravation applies only to accused. one :-"THEFT, especially when committed by a

applying to one

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person who has been previously convicted of theft," is sufficient without a separate major for each accused (6).

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Statutes mitigat

to ing punishment,

or giving power

the to regulate or

libelling, not quoted.

(3), Aggravations set

forth.

1 Thos. Houston and Jas. Ewing, Glasgow, April 23d 1847; Ark. 252.

2 Act Will. IV. and 1 Vict. c. 36, § 40.

3 Hume ii. 170 and note a.-Jas. Mack, Glasgow, Dec. 22d 1858; 3 Irv. 310.

4 Alison ii. 233.-Rob. Nicolson, June 20th 1842; Bell's Notes 177. -John Livingston and John Seymour, Stirling, Sept. 1832; Bell's Notes 179.-John Reid and Rob. Pentland, H.C., March 11th

1833; 5 S. J. 336 and Bell's Notes 179.-Helen Henderson, H.C., Nov. 6th 1849; Lord Justice Clerk Hope's MSS.-Francis Kean and Patrick M'Cabe, Glasgow, April 25th 1860; 3 Irv. 585 and 32 S. J. 640.

5 Jas. Mitchell and Thos. Donald, Aberdeen, April 15th 1842; 1 Broun 261 and Bell's Notes 177.

6 Alison ii. 233.-And. M'Guire and others, Glasgow, Dec. 30th 1869; 7 S. L. R. 212.

MAJOR PROPOSI-
TION.

Aggravation may be implied by terms of statute.

Intent.

Where intent is charged as part of the crime"assault, with intent to ravish "the prosecutor binds himself to prove the intent, and cannot ask a conviction of the act without the intent (2). To enable him to do this, the intent must be stated as an aggravation :-" especially especially when committed with Previous malice" intent," &c. (3). It is not necessary to charge previous malice in the major to entitle the prosecutor to aver previous malice in the narrative (4).

not charged in major.

The import and effect of the words “particularly" and "especially" have never been properly settled (5). Although "especially" is usually held to indicate an aggravation, and "particularly particularly" to be the leading word of an explanation; still it has been held in some cases that "especially" may import nothing more than a particularisation (6), and in some cases particularly" indicates an aggravated offence, as, e.g., in the case of "theft, particularly horsestealing" (7). It would be advisable to avoid

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""

"Particularly" and "especially."

Aggravations may be implied by quotation of the clause of a statute, as where it is enacted in the coining statutes, that when a person has been convicted under it, any new offence shall be a high crime and offence (1).

1 This is not, properly speaking, a mode of charging an aggravation. The Statute makes a previous conviction constitute a new and higher offence.

2 Hume ii. 450, case of Peddie there. Alison ii. 248, 249.-Alex. Wright and Will. Moffat, H.C., Feb. 26th 1827; Syme 136.-John Stuart and Catherine Wright, H.C., June 15th 1829; Shaw 221 and Bell's Notes 180.-See also Hume i. 259, case of Muckstraffick in note *.

3 Alison ii. 249.-John Rae and Rob. Montgomery, Glasgow, Jan. 10th 1856; 2 Irv. 355.

4 Davidson v. Gray, Glasgow, May 7th 1844; 2 Broun 173.

5 See Alison ii. 230, 231, 232, and several cases quoted in Bell's Notes 177, 178.

6 Chas. Macintyre, Inverness, Sept. 14th 1837; 1 Swin. 536 (Lord Medwyn's opinion).-Geo. Kippen, H.C., Nov. 6th 1849; J. Shaw 276 (Lord Justice Clerk Hope's opinion). -See also John Arthur, H.C., March 16th 1836; 1 Swin. 124 (Lord Mackenzie's opinion).

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7 At present, the above is the invariable form. Formerly, especially" seems to have been used as frequently as "particularly."

TION.

using the two words indiscriminately, by using MAJOR PROPOSIespecially" where that which follows is intended to be charged as an aggravation, and " particularly" where specification is the only purpose of the clause.

TION.

The minor proposition contains an affirmation of MINOR PROPOSIguilt" Yet true it is and of verity that you, the Affirmation of " said John Brown, are guilty of the said crime, actor'

guilt.

""

together.

or art and part." Where two are charged together, Several accused the charge runs :-" You, the said John Brown and "William Black, are both and each or one or other of

you guilty of the said crime, actors or actor, or art "and part." If there be more than two accused, "all and each or one or more of you" is the form. If crimes be alternatively put, the form is :-" are Alternative. "guilty of the said crime of robbery, actor or art and "part, or of the said crime of theft, actor or art and

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part." Or if several persons are charged with Persons charged different crimes thus:"You, the said John Brown, offences.

with different

"".

are guilty of the said crime of theft, actor or art "and part, and you the said William Black are guilty "of the said crime of reset of theft, actor or art and

""

different crimes

by

""

part." Where crimes are libelled in the major, not Reference to a nomen juris, but by a detailed statement, it is by number." usual to refer them in the minor by number, thus:"the crime first above libelled," the crime "second above libelled." If there be two crimes to Cumulative be charged cumulatively, the minor sets forth, " are "guilty of the said crimes or of one or other of them." Where there are more than two, "one or more of "( them" is the form. In such a case if the minor states "guilty of said crime," the libel is irrelevant (1). But this does not apply to a crime at common law, Additional to which a statute has punishment (2).

charge.

punishment by

merely applied a higher statute for com

mon law offence.

A large number of indictments for animal stealing have been found in Lord Wood's collection, some of which use the one word and some the other.

1 Alison ii. 246, 247, and cases of M'Innes and Macbride and Rollo there.

2 Alison ii. 247 and case of Gowans there.

MINOR PROPOSI-
TION.

Where the whole section of a statute which creates several offences is quoted in the major, but the accused where clause of is not charged with all of them, the affirmation should

Affirmation

statute contains

several offences. specify the offence alleged to have been committed,

either by using a number-" the statutory offence "first set forth in the before recited section of the "statute above libelled," &c., or by shortly quoting the words of the statute (1). But although this is the more correct form, indictments have passed, in which, although only one of the crimes in the section was to be charged, guilt was affirmed of "the statutory "crimes and offences above libelled, or of one or more "of them." But this is not a good mode of libelWhere the statute sets forth a number of actions, and declares that a person who commits any of them commits "a crime and offence," it is held to set forth one offence only, which may be committed in different ways, and it is sufficient to affirm that the accused is "guilty of the statutory crime and offence "above libelled," although only one of the acts

specified is to be proved (3). Where a statute Statute prescrib- ordains that persons committing a certain offence are

ing different

punishments for to be dealt with in different ways, if the offence is a

2d and 3d offences.

first, second, or third offence, the affirmation in the case of one previously convicted must contain a statement sufficient to bring the offence within the statute, e.g., are guilty of the statutory offence set forth in

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""

the section of the statute above libelled by offend

Statute naming ling (2).

acts separately constituting offence.

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2 See Eugene E. A. Whelps, H.C., July 25th 1842; 1 Broun 878.-Geo. Duncan, H.C., Dec. 21st 1852; 1 Irv. 130.

3 Elizabeth Mackenzie or Stru

thers and David Struthers, Glasgow, Sept. 23d 1842; 1 Broun 422 and Bell's Notes 136.-Will. Newman, H.C., July 14th 1856; 2 Irv. 439.-Geo. Duncan, H.C., Feb. 29th 1864; 4 Irv. 474 and 36 S. J. 404.-Geo. W. Holmes and Edmund B. Lockyer, H.C., March 1st 1869; 1 Couper 221 and 41 S. J. 318 and 6 S. L. R. 389.

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