In many cases the statement of the modus begins MODUS. with a preliminary narrative, to make the subsequent Preliminary details of the crime intelligible, or to make the circumstances to be detailed infer guilt of the crime charged. E.g., in cases of culpable homicide it is common to give a narrative, before the statement of time and place, setting forth that the accused occupied a particular position, or entered into a particular contract, and that it was his duty to do certain things, or to observe certain precautions. Where such a pre- Distinguishing liminary narrative is given not merely to make the rative from charge intelligible, but to set forth things to be facts which, combined with the circumstances to be averred, constitute the guilt, it is usual to indicate the transition from the preliminary statement to the charge by such words as- -" YET NEVERTHELESS you did upon the "5th day," &c. preliminary nar offence. tion to affirma sistent with The statement of the charge must be considered in Charge in relatwo aspects; first, as regards its consistency with the tion and major. affirmation of the accused's guilt at the commencement of the minor, and second, in its relation to the major. First, then, the charge must be consistent with the Must be conaffirmation at the outset of the minor (1). If affirmation. two crimes be libelled alternatively in the affirmation, it will not do to detail them cumulatively in two separate narratives (2). If a distinct narrative is given as to each, the narratives must be separated by a disjunctive as "or otherwise." Where several persons were charged in the affirmation as guilty of both and each or one or other of the crimes charged, while the facts set forth as applicable to some of the accused implied guilt of only one of the offences charged, the libel as against them was found relevant only as regarded that crime (3). 1 Hume ii. 181. 2 Michael Hill, H.C., Jan. 9th 1837; Bell's Notes 189. 3 Will. Rankine and others, Glasgow, April 1831; Bell's Notes MODUS. crimes in major, charge in major native. As regards the relation of the narrative to the major, Must support all the first requisite is, that the charge set forth species facti relevant to support all the crimes in the major Unless where (1). But this does not mean that where one charge contains an alter- in the major contains an alternative-as where the major speaks of a "bill of exchange or other obliga"tory writing "that the narrative may not be confined to one thing (2). The general description of the major may be restricted in the subsumption, just as when a coining statute makes it an offence to possess a die, or a press, or a cutter, the full guilt of the Act is implied in a charge that the accused possessed Or in statutory any one of them. Statutory offences also form an exception to the rule. Where a section of a statute is quoted in the major, setting forth several crimes, it is usual to quote the whole section, though facts applicable to one of the offences only are to be set forth in the narrative. offences. Narrative must infer crime charged. If particular mode of essence tion that this the * The next requisite is, that the statement of the modus come up to and infer the crime charged (3). Consistency with the major, and sufficient specification, are the two things necessary. If what is charged in the narrative have no relation to the crime named in the major, the whole indictment is irrelevant. But even where it has a relation to it, there are many points in which particularity is necessary, e.g., if the of crime, allega- essence of a crime consist in an act having been done mode essential. in a particular way, the charge is not relevant, unless it set forth that the act was done in that way. Thus, the characteristic of stouthrief being that property is taken by masterful violence, a subsumption which did not state that the property carried off was master'fully" taken, but only "wickedly, feloniously, and 1 Jas. Chisholm, H.C., July 9th 1849; J. Shaw 241. (The rubric of this report is misleading).-Will. Cowan, Ayr, Oct. 1st 1862; 4 Irv. 213 and 35 S. J. 2. 2 John Reid, H.C., Jan. 8th 1842; 1 Broun 21 and Bell's Notes 186. 3 Hume ii. 184, case of Yorston, and others there. * Vide 289. "theftuously," was held irrelevant (1). Again, where MODES. the major charged fraud by discounting a bill, accepted by only one of two drawers, which had been drawn and endorsed by A.B. on express condition that it should not be discounted, unless both of two drawers should have accepted, the specification of the modus set forth that the accused had induced A.B. to draw and endorse on that condition, but in setting forth that he did draw and endorse, and deliver the bill, stated the condition thus-" On the express condition "and undertaking by you that the said bill should "not be discounted by you the said or delivered "for the purpose of being discounted, or in any way "used as a document of debt," the charge was held irrelevant, as the condition as to the signature of the drawers in the major, was not properly covered by this subsumption (2). Statutory crimes afford the best statutory word illustration of this rule, the slightest variation by altered. omission or addition, sometimes even of a word, or the substitution of one phrase or word for another, being often sufficient to render the indictment irrelevant. Where a statute made it an offence "knowingly" to possess certain articles, the omission of that word was held fatal (3). Again, a statute which enacted that “if "any person shall wilfully, maliciously, and unlawfully "shoot," &c., was held not properly libelled on by a narrative which substituted the words, "wickedly and 'feloniously " (4). Also, where a statute made the possession of certain articles" without lawful excuse to be a crime, the objection that the libel used the words "without lawful authority," caused the prosecutor to move that the diet be deserted (5). In a 1 Thos. M'Gavin and others, Stirling, April 25th 1844; 2 Broun 145. 2 Thomas Forgan, Inverness, April 25th 1871; 2 Couper 30 and 43 S. J. 427 and 8 S. L. R. 493. 3 John Anderson, H.C., Dec. 14th 1846; Ark 187. 4 James Affleck, H.C., May 23d 5 John Robison and Margaret must not be MODUS. poaching case, the words "armed with a gun or guns "or other offensive weapon or weapons," was held irrelevant to infer guilt under a section of a statute, which spoke only of entering land with "any gun, "net, engine, or other instrument, for the purpose of taking or destroying game" (1). And a charge that the accused did, "all and each, being to the number "of three together, or one or more of you," unlawfully enter land to destroy game, was held irrelevant under a statute which spoke only of "persons to the "number of three or more together" (2). If the charge had said they did all and each, or one or more of them, "in company with other persons to the pro secutor unknown, being to the number of three or "more together, unlawfully enter," &c., it would have. been relevant (3). But as expressed, the words "or one or more of you" were a negative alternative of the words "being to the number of three or more together." A charge under a statute enacted to prevent malicious obstruction of railways was held bad, because while the Act spoke of doing something so as "to obstruct any engine or carriage, using any railway, or to endanger the safety of persons conveyed "in or upon the same," the charge only set forth the placing of a stone on a railway with the intent to obstruct a train, and that it would have done so, and have endangered the lives of the passengers by that fries, Sept. 29th 1842, the words on. or causing the same to be de"livered or tendered," were struck out, not being in the statute libelled Lord Moncrieff's MSS. And in the case of Will. Mackendry and others, Ayr, April 19th 1859, the substitution of the words "three "or thereby" for the statutory words "three or more," was held incompetent.-Lord Ivory's MSS. 1 Malcolm M'Gregor and others, Perth, April 28th 1842; 1 Broun 331 and Bell's Notes 118. (The charge was cumulative under 9 Geo. IV. c. 69, §§ 1, 9. The words used were applicable to a contravention of the 9th section, but not to a contravention of the 1st.) 2 Malcolm M'Gregor and others, Perth, April 28th 1842; 1 Broun 331 and Bell's Notes, 186. 3 Rob. Henderson and Jas. Blair, March 12th 1830; Bell's Notes 196. -Duncan Stewart, Perth, April 1841; Bell's Notes 196. train, had it not been removed, and did not aver MODUS. actual danger caused (1). with major, not to position in stood. The narrative may further be inconsistent with the Inconsistent major, by failing to describe the accused as having averring facts us been in the position required by the terms of it. which accused Where a statute declared that any creditor of a bankrupt swearing falsely in any oath emitted under the Act, should be liable to certain penalties, a charge was held irrelevant, because it did not state that the accused was a creditor (2). Where the charge was fraudulent concealment by a bankrupt, the libel was held irrelevant in respect it was not said that the accused was proprietor of the articles concealed (3). The narrative must also be consistent with the Narrative must not go beyond major by confining the charge within the limits major. covered by it. It is not relevant in a charge of fireraising, which applies only to certain kinds of property, to aver that the fire consumed movable goods, there being no allegation of intent to defraud insurers, or the like (4). Again, theft not being an ordinary act of a mob, it is not permissible in a charge of mobbing and rioting to state that the mob carried off articles theftuously," there being no charge of theft in the major (5). The rule is always most stringently applied Rule stringent in in statutory offences. In a night poaching case, the words or were in the near neighbourhood of the said "lands," were struck out, not being justified by the words of the statute (6). Where the accused was charged under a poaching statute with being at a certain place, and with certain instruments, "for the "purpose of taking or destroying game or rabbits," 1 David Miller, H.C., July 24th 1848; Ark 525. 2 Matt. Steele and Rob. Smellie, Feb. 10th 1823; Shaw 96. 3 Rob. Moir and John Moir, H.C., Dec. 5th 1842; 1 Broun 448 and Bell's Notes 186. 4 Dan. Black, Glasgow, Dec. 23d 1856; 2 Irv. 575. 5 John Harper and others, H.C., Nov. 21st 1842; 1 Broun 441 and Bell's Notes 110. 6 John Reid and others, Jedburgh, April 25th 1836; 1 Swin. 202 and Bell's Notes 233. statutory cases. |