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should be used.
& British statute
ing as therein set forth a third time, actor or art Minor PROPOSI“ and part” (1). If a statute calls an act“
a high Name in statute “crime and offence," or the like, these words are used in the affirmation :-_"you the said John Brown are
' guilty of the statutory crime and offence (or the statutory high crime and offence) above libelled,
actor or art and part.” But where an offence is English terms in created by a British statute, the prosecutor need not need not be foluse terms inappropriate to Scottish form, such as “misdemeanour;" but may use the ordinary form charging guilt of the "statutory crime and offence” (2).
Aggravations must be libelled in the affirmation, or Aggravations in they will be expunged from the major (3), and no aggravation can be libelled in the affirmation, which is not in the major (4). The affirmation of aggravation runs :-"are guilty of the said crime, aggravated as
aforesaid, actor or art and part.” Or where there are more persons than one, and the aggravation does not apply to all :-"you the said John Brown are
guilty of the said crime of theft, aggravated as
aforesaid, actor or art and part; and you the said “ William Black are guilty of the said crime of theft, “actor or art and part.” Or in the case of several different degrees
of aggravation. panels charged with different aggravations :-"you “ the said John Brown are guilty of the said crime of " theft, aggravated as aforesaid, actor or art and part, " and you the said William Black are guilty of the “ said crime of theft, aggravated by your being habit “ and repute a thief, actor or art and part, and you
1 Jas. Bird, Dundee, April 1865 ; Notes 178.-It cannot be doubted (Indictment) following on Geo. that the libel in the cases of MacDuncan, H.C., Feb. 29th 1864 ; 4 Lauchlan and others : and Marr Irv. 474.
and Anderson cited on this page of 2 Geo. Duncan, H.C., Jan. 6th Mr Bell's Notes, were passed per 1842; 1 Broun 4 and Bell's Notes incurium.-Thos. Whitfield and 118.
others, H.C., July 28th 1843; 1 3 Alison ii. 248, and case of Don. Broun 609. aldson and others there.-Peter 4 John Stuart, June 15th 1829; Sutherland, July 4th 1831 ; Bell's Shaw 221.
“ the said David Green are guilty of the said crime
“theft, actor or art and part.” Where the major " said " refer to charged theft, aggravated by habit and repute and major ?
previous conviction, and the affirmation stated :
you the said Donald M-Kellar are guilty of the said “ crime of theft, aggravated by your having been
previously convicted of theft, and you the said “ Robert Devlin are guilty of the said crime, aggra“ vated as aforesaid,” the question was raised whether the words “as aforesaid ” referred to the major, or only to the previous statement regarding the other prisoner, and the additional charge of habit and repute was withdrawn, in deference to doubts expressed by the Court (1). It is thought that these doubts were
( ill founded. The affirmation is in all its parts referable to the major, and the assertion in reference to each accused—"you are guilty,” is an assertion going directly back to the major proposition, and is quite independent of charges against other persons accused. Butit is easy for the prosecutor to avoid risk by not using
the term “as aforesaid,” but by naming the aggravations. Not necessary to Where several crimes were charged in the major,
some as aggravated and others without aggravations, an objection that the affirmation stated the accused to be guilty “of all and each or one or more of the said “crimes, aggravated as aforesaid,” and that this was inconsistent, was repelled (2). And a libel was sustained which charged the accused as guilty “of the “ said crimes, aggravated as aforesaid, or of one or
more of them,” though the Court indicated an
distinguish between charges in affirming aggravation
1 Donald M'Kellar and Rob. Devlin, Glasgow, Sept. 26th 1854; 1 Irv. 562.
2 Gilbert Macallum, H.C., March 7th 1836; 1 Swin. 64 and Bell's
Notes 178.--A similar indictment bad previously passed without objection. – David Wilson and others, Dec. 22d 1828 ; Bell's Notes 177.
opinion that this was not so correct a style as that MINOR PROPOSIabove quoted (1).
aggravated and charges of simi
As it is sufficient in the major, where the same Nor between crime is to be proved to have been committed both in unaggravated its simple and in an aggravated form, to state the lar offence. crime and the aggravation, without stating "theft, as "also theft especially," &c., so in the affirmation, in such a case,—as where an act of aggravated theft and an act of simple theft are to be proved,—it is sufficient to charge the accused as guilty of theft aggravated as aforesaid, without charging that he is guilty of "theft, "and of theft aggravated by, &c.," (2).
be implied in
In statutory cases, affirmation of the aggravation Aggravation may may be implied. Thus, where a statute raises an statutory cases. offence to" a high crime and offence," in the case of a person previously convicted, the aggravation is sufficiently set forth by stating guilt of "the high crime "and offence set forth in the above recited section" (3).
The words "(actors or) actor, or art and part," at the conclusion of the affirmation are indispensable (4). The insertion of the words "art and part" is a statutory solemnity (5) But it is not a good objection to an indictment for concealment of pregnancy that the
1 Will. Rait, H.C., Nov. 17th 1851; J. Shaw 500, and 1 Stuart 48, and 24 S. J. 13.
2 Francis Keane and Patrick M'Cabe, Glasgow, April 25th 1860; 3 Irv. 585 and 32 S. J. 640, overruling David Syme, Nov. 7th 1837; Bell's Notes 179.
3 Where the statute speaks only of "offending" a second time or a third time, without altering the name of the offence, previous convictions are not strictly speaking libelled as aggravations, as without them there may perhaps be no jurisdiction to try the offence at all, but they must be set forth as a
substantive element constituting
4 Hume ii. 239.-Alison ii. 250,
5 Act 1592, c. 153.
Form where time of essence of case.
or art and part are omitted, accession in such a case being impossible (1).
After the affirmation follows the subsumption or
narrative of the crime, It begins :—“In so far as," time, place, and
and then follows a statement of the time, place, and mode of the commission of the crime. The charge sometimes begins with a statement of the facts out of which the crime arose; but as in the ordinary case the statement of time and place occurs at the outset, it will be convenient to defer observations on the detail of the acts done.
It is essential that there be a statement as to the pensable. time of the offence (2). The usual form is “On
:“ the 15th day of April 1865, or on one or other of “the days of that month, or of March immediately
preceding, or of May immediately following.” When it is part of the essence of a crime that it was committed at night, as in night poaching offences, the form is “ by night, that is to say, between the expira“tion of the first hour after sunset, and the beginning “ of the last hour before sunrise, on the night of the
6th, or morning of the 7th day of January 1864, or
on some other,” &c. Three months Three months is the latitude allowed in all always allowed. More only on
cases (3). The prosecutor, if he libel the time more
) indefinitely, must show satisfactorily by his charge that he cannot be expected to confine himself to three months, or to specify any particular time, either from the accused having had facilities for committing the offence without observation, or from the offence being of an occult nature, or the like (4), as, for example,
1 Alison Punton, H.C., Nov. 5th 4 Alison ii. 254, 255, and case of 1841 ; 2 Swin. 572 and Bell's Notes Reid there.-Alex. Grigor, Inver. 81.
ness, April 27th 1832 ; 5 Deas and 2 Rob. Wyllie and Agnes Rich- Anderson 257.- Rob. Smith and ardson, Glasgow, April 26th 1820; Jas. Wishart, H.C., March 23d Shaw 49.
1842; 1 Bronn 134 and Bell's Notes 3 Hume ii. 221.-Alison ii. 251, 216.-Jas. T. Creighton, Dumfries, 252, 253.
Sept. 29th 1842; 1 Broun 429 and
a series of thefts (1) by a shopman (2) or servant (3), TIME. or by a constable in charge of premises (4); or by a from fields, &c. person in co-operation with the owner's son (5); or embezzlements by a clerk, sent to collect accounts (6); or thefts of sheep (7); or appropriation of articles given to clean or repair (8); or cases of incest and adultery (9); or unnatural offences (10); or crimes committed at sea (11). A libel charging cruelty to a Protracted child 66 at many different times between the 1st of July 1838 and the 17th of April 1839, the par"ticular times being to the prosecutor unknown," was sustained (12). A latitude of three months, without Rape-young specification of any day, was allowed in a case of rape on a young child (13). Unusual latitude is permissible Long interval where there is a long interval before the trial, so that witnesses cannot be expected to remember exactly (14).
cruelty to child.
Bell's Notes 216.-An in lictment for a single theft was found relevant in 1832, where a range of four months was taken without explanation.-Will. Martin and Adam Archbild or Archibald, H.C., June 11th 1832; Bell's Notes 215.-It may be doubted whether such an indictment would be sustained now.
1 Alex. Law and Henry Martin, Dec. 27th 1831; Bell's Notes 217.Jas. Macintosh, Inverness, April 18th 1832; Bell's Notes 217.
2 Hume ii. 222, case of Lillie there. Thos. B. Harper, H.C., Feb. 24th 1840; Bell's Notes 216.Will. Stuart and others, Inverness, May 2nd 1866 (not reported).
4th 1838; 2 Swin. 189 and Bell's
6 John Rae, H.C., May 16th
7 Andrew Hempseed, June 11th 1832; Bell's Notes 215.-Geo. Douglas, H.C., Jan. 23d 1865; 5 Irv. 53 and 37 S. J. 354.
8 Elizabeth Warrington, alias Collie, July 15th 1831; Bell's Notes 216.
9 Hume ii. 222, 223, cases of Weir Hamilton: Moor: Haitly: Spence and Blewbatter: and Campbell there.
3 Dawson v. Maclennan, April 2nd 1863; 4 Irv. 357 and 35 S. J. 515 (Lord Justice - General Macneill's opinion). See also Alex. Fraser and Margaret Wright, H.C., March 16th 1835; Bell's Notes 215.-Janet Drummond, July 12th 1832; Bell's Notes 216.
4 Alex. Glennie, H.C., June 27th 1864; 4 Irv. 536.
5 Will. Cattanach, Perth, Oct.
10 Hume ii. 223, cases of Mitchell Hog: Easton and Oliphant there.
11 Hume i. 483.
12 John Craw and Mary Bee or Craw, H.C., Nov. 8th 1839; 2 Swin. 449 and Bell's Notes 217.
13 Will. Carlyle, H.C., June 10th 1839; 2 Swin. 392 and Bell's Notes 215.
14 Hume ii. 223, 224, and cases of Macgibbon Bruce More: Oliphant and Cunningham there. Alison ii. 257.