culpable violation and neglect of duty aforesaid, and MODUS. "in consequence of your not taking the necessary "means and precautions to prevent danger and in"jury to the lieges," and the same clause was repeated in libelling the cause of death, &c.; the words in italics were held irrelevant, as the narrative, thus expressed, charged two causes combined-first, the breach of duty described; and, second, some other unexplained delinquency. Nor was the objection held to be affected by an averment that it was the accused's duty "to take all necessary means and precautions to

prevent danger," &c. (1). Where a charge of culpable homicide contained an alternative, "or did culp"ably and recklessly use a sword or cutlass," the charge was held irrelevant, as not implying anything criminal, the sword not being said even to have been drawn, and the word "use" being held far too vague (2). Where the accused was charged with receiving for his master a bill for £15, 18s., and embezzling "the said "bill or promissory note, or the said sum of £15, 18s,” but there was no statement that the accused had power to endorse the note, and had failed to account, the Court ordered the words "or the sum of £15, 18s." to be struck out (3). And on the same principle, the Court, in another case, though not holding the libel irrelevant, animadverted on the accused being charged with having received sums for his master, "partly in "bank cheques, which you forthwith cashed," and then embezzling the sum they represented, without its being stated where the cheques were cashed, or whether it was the cheques or the cash he embezzled, or whether he had authority to cash the cheques or not (4). A charge of theft of turnips was held irrelevant, it being

1 Wm. Dudley, H.C., Feb. 15th 1864; 4 Irv. 468 and 36 S. J. 332.

2 Thos. Philips, Glasgow, April 23d 1863; 4 Irv. 385 and 35 S. J.

3 John Mackenzie, H.C., July 20th 1846; Ark. 97.

4 Robt. Stevenson, H.C., Nov. 8th 1854; 1 Irv. 571.

MODUS.

averred that the accused feloniously put sheep to feed
on another man's turnips, and then alleged that he
did" steal and theftuously away take . . . a quantity
"of turnips," on the ground that the averment about
the sheep made it uncertain whether it was intended
to charge theft by the feeding on the ground only, or
by actual removing of turnips, or both (1). A charge
of uttering a forged bill was held irrelevant, where the
species facti set forth were that the accused, having
forged several names upon a bill stamp, and written
£50 in figures upon it, uttered it as genuine by deli-
vering it to a teller at a bank, "in order that a bill
"of exchange for £50 sterling might be written above
"the foresaid subscriptions on the face of the said
"stamped paper, and be discounted or cashed." It
was held that these last words did not necessarily
imply that it was to be discounted or cashed by the
teller (2). But the addition of the words "
by the
"said A. B.," to the words "be discounted or cashed,"
would have made the charge relevant (3). A charge
of falsehood, fraud, and wilful imposition to obtain
lodgings and food was held irrelevant, because though
it was stated that the accused made false statements,
and that the person providing the lodgings and food
was deceived thereby, it was not made clear that the
falsehoods were told in order to obtain the fraudulent
advantage (4). A charge of theft was held irrelevant
which set forth that the accused stole a locked
chest, and then that they did break it open and steal
certain articles from it, on the ground that if the ac-
cused stole the locked chest they also necessarily stole

1 Alex. Robertson and others, Aberdeen, Sept. 20th 1867; 5 Irv. 480 and 40 S. J. 1 and 4 S. L. R. 251.

2 Michael Steedman, H.C., Feb. 6th 1854; 1 Irv. 363.

3 Same case, H.C., Feb. 27th 1854; 1 Irv. 369 and 26 S. J. 318. 4 Jas. Wilkie, Stirling, Sept. 13th 1872; 2 Couper 323 and 45 S. J. 3 and 10 S. L. R. 17. See also Margaret Sharp, Glasgow, April 25th 1874; 2 Couper 543.

its contents, and could not steal them again (1). But MODUS.
this rule may not apply in a strictly statutory case.
Where a statute declared it a special offence to steal a
letter out of a post-bag in one section, and a special
offence to steal money out of a letter in another sec-
tion, a libel was held relevant which charged a con-
travention of both sections by first stealing a letter
which contained money, and then opening it and steal-
ing the money (2).

uncertain terms

The following are instances of indictments held Objections to objectionable in consequence of the use of uncertain sustained. terms: In a case of child murder, the difficulty of putting a fixed meaning on the word "expose," when taken by itself, was fatal (3). In a case of culpable and reckless fire-raising, a statement that the accused did "allow" a light to come in contact with a certain article was held irrelevant (4). A charge of uttering a piece of paper resembling a bank-note, by delivering it to certain persons, " in order to be exchanged" for genuine money, was held not relevant, as the mere delivering of the paper " in order to be exchanged" did not imply that it was delivered "as genuine," which might have been implied in the case of a paper said to be a forgery (5). The libel should have contained some such statement as "meaning and intending the "same to pass for, and be received as a genuine

1 Jas. Stuart v. Alexander Low, Aberdeen, April 15th 1842; 1 Broun 260 and Bell's Notes 8.-See David Walker, Stirling, Sept. 3d 1836; 1 Swin. 294 and Bell's Notes 209where, in a similar case, it was held that the true locus delicti was the place where the box was taken, not the place where it was subsequently broken open.

2 Henry Goldwyre, H.C., Nov. 7th 1856; 2 Irv. 494 (indictment). -Alex. Mackay, Inverness, Sept. 24th 1861; 4 Irv. 88. There was, in the libel in this case, an alter

native of simple theft, in which
were coupled together, as consti-
tuting only one theft at common
law, the two acts making the sepa-
rate statutory offences, the prose-
cutor thus distinctly recognising
the principle of the case of Stuart
and Low, supra.

3 Elizabeth Kerr, H. C., Nov. 8th
and 26th 1860; 3 Irv. 627 and 33
S. J. 34.

4 Jas. Stewart and John Walsh, H.C., Jan. 14th 1856; 2 Irv. 359.

5 Peter Gibb, H.C., Nov. 18th 1833; Bell's Notes 185

MODUS.

Latitude to meet discrepancies of

proof.

“note of the . . . . Bank” (1). Where the accused was charged with culpable homicide, in so far as by the violence of an assault he was committing upon his wife, he did "force or cause" his wife, "when in a state of alarm or excitement," to compress or squeeze a child in her arms, the words "force or," and the words "when in a state of alarm or excitement," were struck out on objection, and it was then held that the charge setting forth simply that he did "cause" his wife to compress the child was relevant, as implying that she was physically compelled to compress or squeeze the child (2). In a charge of culpable homicide the following clause occurred-" and it moreover being your duty in your capacity aforesaid [in any "event], and independently of any such signal, as aforesaid, more particularly when knowing [or having good "reason to know], that you were approaching a station," &c. The words between brackets were struck out (3). Where the libel in a case of obtaining goods by falsehood, fraud, and wilful imposition stated the goods to have been delivered " to you, or your order," the Court held that though this did not amount to a legal defect, it was not advisable to depart from the practice of naming the individuals said to have received the goods for the accused (4).

66

It is next necessary to notice the alternative latitude information and allowed to cover trifling differences between information and proof. In stating a sum of money or the age of a person, after naming the exact sum or number of "Or thereby." years, the words "or thereby" may be added. Every reasonable latitude will be allowed under these words, but it may depend on circumstances what shall be

1 See Alex. Lindsay and Robert Struthers, H.C., Nov. 19th 1838; 2 Swin. 198.

2 Hugh Mitchell, H.C., Nov. 7th 1856; 2 Irv. 488. (The rubric of the report is inaccurate. It states that the words "force or cause"

were deleted, whereas only "force or" were struck out).

3 Alex. Robertson, H.C., Feb. 8th 1859; 3 Irv. 328.

4 Jas. Wilson, H.C., March 6th 1854; 1 Irv. 375.

held reasonable.

Questions rarely arise as to the MODUS. limit which these words will reach. In the only case in which they led to discussion (one of indecent assault upon a girl), it was held that "twelve years of age, or thereby," would cover the case of a child within sixteen days of thirteen years of age (1). age (1). cutor is entitled to take a general latitude

The

The prose

as to circumstances which may not be certain. Thus, where the libel charges the use of a weapon or instrument named, he may add "or with some other weapon (or "Other weainstrument) to the prosecutor unknown" (2). Again,

66

pon," &c.

"payment."

in the case of embezzlement of money paid to the "Other mode of accused in various forms, it is relevant to state the payments as made in a particular manner described, or by some other mode or modes of payment, the particular mode or modes being to the prosecutor "unknown" (3). Or in a case of mobbing, the prosecutor after libelling the common purpose, may add or for some other unlawful purpose to the prosecutor "unknown" (4).

justify special

Circumstances may make latitude permissible which Special facts in the ordinary case would not be so. Where, in a latitude. charge of bigamy, the first marriage was set forth as celebrated by a clergyman named, "or by some other clergyman to the prosecutor unknown," the latitude was held admissible, the prosecutor stating on his responsibility that it was essential, and the marriage having taken place sixteen years before (5).

Where the prosecutor takes a latitude by stating Is it always that an act was done "with some other instrument,' "to prosecutor

previous indictment, which was ob-
jected to, see 2 Swin. 534.

4 Geo. Smith and others, Glas-
gow, May 3d 1848; Ark. 473.-
Michael Hart and others, H.C.,
Nov. 10th 1854; 1 Irv. 574 and 27
S.J. 2.

5 John Armstrong, H.C., July 15th 1844; 2 Broun 251.

necessary to add

"unknown?"