MODUS. or the like, it should be stated to have been "to the "prosecutor unknown” (1). But these words need not be used in reference to every incidental point, as to which latitude is taken. Where a libel charging child-murder stated the child to have been tied up along with a stone or other substance, weighing," &c., without saying "to the prosecutor unknown," the words," or other substance," were struck out on objection, but not on the ground of the absence of the words "to the prosecutor unknown" (2). And in a previous case a libel which contained only the words " or some other heavy substance," was sustained" (3). Again, a libel which charged that the accused deceived "by means of these or other similar or false representations," was successfully objected to on another ground, but no objection was stated on the ground that the words "to the prosecutor unknown," were not used, nor was this noticed as a defect by the Court (4). It is common in charging an offence involving many details, after describing what was done, to take a general latitude without using the words "to the prosecutor unknown." Thus, in a case of complicated assault, the words "and did otherwise. "maltreat and abuse him," may be added (5). In a case of riot, such expressions as-" and did otherwise. "conduct yourself in a riotous and outrageous manner," are allowable. Charges of using improper practices to children always contain the words "and use other lewd, indecent, and libidinous practices towards the said," &c. Lastly, in cases of fire-raising such expres 1 Will. Flockhart and others, Feb. 16th 1835; Bell's Notes 193.John and Jas. Christie, H.C., March 12th and May 31st 1841; 2 Swin. 534, 2 Swin. 543 note, and Bell's Notes 197. 2 Mary Wood, H.C., Nov. 7th 1856; 2 Irv. 497 and 29 S.J. 5. 3 Thos. Braid and Mary Braid, Jan. 27th 1834; Bell's Notes 194. 4 Henry Hardinge and Lucinda Edgar or Hardinge, H.C., March 2d 1863; 4 Irv. 347 and 35 S.J. 303. The word," or" between the words "similar" and "false" were struck out to obviate the objection which was sustained. 5 Geo. Forbes and others, Perth, Oct. 11th 1858; 3 Irv. 186 and 31 S.J. 37. sions as, "and by setting fire to various other parts of MODUS. narrative of The right to take a general latitude is not confined Latitude in to the incidental circumstances or pertinents of the modus. charge, but applies to the whole narrative. In a case of child murder, after describing the mode, there may be added, "or did otherwise maltreat and abuse your “said child in some other manner, and by some other means, to the prosecutor unknown." Or in a case of house-breaking, "having thus, or in some other manner, to the prosecutor unknown, forcibly ob"tained entrance," &c. (3). But care must be taken, Words of latitude both as to the words themselves, and as to their position in the libel. If they are so expressed as to form an independent charge, they will be held irrelevant. Where a clause of this sort was detached from the rest 1 Harris Rosenberg and Alithia Barnett or Rosenberg, Aberdeen, April 16th 1842; 1 Broun 266 and Bell's Notes 194. 2 Reuben Brooks and Frederick W. Thomas, Glasgow, Dec. 31st 1861; 4 Irv. 132. 3 Hume ii. 192, 193, and case of Stewart and others there, and case of M'Mahon in note a-ii. 195, case of Gilchrist in note 1.-Alison ii. 302 to 305.- The following selections from a multitude of others in the reports, may serve as illustrations of this rule :- Thos. Braid and Mary Braid or Morrison, H.C., Jan. 27th 1834; 6 S. J. 220.-Rob. Reid, H.C., June 22d 1835; 13 Shaw's Session Cases 1179 and Bell's must not constitute an independent narrative. Monrs. able if it point to a mode not similar. of the narrative by a separate averment of time and place" or you did then and there inflict some mortal "injury upon your said child in some manner and by some means to the prosecutor unknown," the Court held it irrelevant. The clause was doubly objectionable. The "then and there" separated it off, and made it a substantive and independent charge, and the absence of any such words as "otherwise " or "other" precluded the idea of the clause being intended merely to cover some other violence of the same sort as that previously described (1). This Clanse objection- latter objection illustrates another rule, which is, that the clause must be so worded as to imply only a similar mode to the one specially described. Thus, in a case of falsehood, fraud, and wilful imposition, where the prosecutor used the words "by these or other "similar [or] false representations," the disjunctive 'or" in brackets was struck out, as in its position as a disjunctive from "similar," it pointed to dissimilar Clause of latitude representations (2). Again, the words by which a general latitude is taken must be in their proper position. If they are thrust in anywhere else, so as to be separate from and not merely an addendum to the detail of the manner of the act, they will be held irrelevant. In a case of murder, after the description of the modus had been concluded, and the prosecutor had made his averment that the deceased died in consequence, it was held not competent to bring in a general statement, thus :-" and was thus [or in some must be connected with specific clause. other way, and by some other means to the prose"cutor unknown] murdered by you." The words in brackets, so placed, are not a mere amplification of the mode described, but are put in opposition to the word 1 Ann M'Que, H.C., Feb. 20th 1860; 3 Irv. 552 and 32 S. J. 478. 2 Henry Hardinge and Lucinda Edgar or Hardinge, H.C., March 2d 1863; 4 Irv. 347 and 35 S. J. 303. thus," and are therefore a new and irrelevant MODUS. averment (1). permissible mode of essence It is not competent to take any such latitude as that Latitude not spoken of, where the essence of an offence consists in its where exact having been done in a particular manner, and where, if it of charge. were done in any "other" manner, it would cease to be the offence charged. This is especially true of statutory offences, where the offence must be proved as described in the statute. Thus it is incompetent to add to a statutory charge the words "or in some other way, and by some other means to the prosecu"tor unknown" (2). cular offences, It will not be possible, consistently with the limits Modus in partiof this work, in treating of the modus in the case of particular crimes, to notice every offence. It is hoped that the selection made will meet the requirements of ordinary practice, and that the forms given may be found useful by analogy in the case of crimes not specially noticed. THEFT. In the ordinary case it is sufficient to Theft, ordinary state I. That the accused "did wickedly and feloniously "steal and theftuously away take," II. certain property described, being III. ("the property" or) "in the lawful possession "of" a certain person described. case. In cases of child-stealing "away carry" is substi- Child-stealing. tuted for " away take," and "in the care and lawful "custody of," for the words, "the property in the law"ful possession." away. First, the taking away. It is usual where the The taking place of a theft has been described at large as a street, or a road, to add to the statement of the "taking "away," such words as "from the person of John 1 Mary Wood, H.C., Nov. 7th 1856; 2 Irv. 497 and 29 S. J. 5.Ann M'Que, H.C., Feb. 20th 1860; 3 Irv. 552 and 32 S. J. 478. 2 Will. Newman, H.C., July 14th 1856; 2 Irv. 439. Ꮓ MODUS. Some cases require more specification. Cases where property is lawfully in possession of thief. "Brown," &c., or "from a cart then standing there." But such a statement is not essential (1). Although an indictment which charges theft in the general manner stated above, is relevant to infer that crime, there are cases in which, according to practice, the prosecutor must give further details in order to entitle him to a conviction. Thus, where a theft is committed of an article which originally came lawfully into the custody of the thief (as in the case of an overpayment, or of post letters, or things hired or delivered for a specific purpose), the libel should state the circumstances; e.g., "the said James Laurie having de"livered to the said Robert Michie a bank or banker's "note for £20 sterling, in order that he might get the "same changed, and return with and deliver the change "thereof to the said James Laurie, the said Robert "Michie did," &c. (2). In one case, where the libel charged that the accused received a £5 note from A. B. "for the purpose of being changed, and the change returned to the said" A. B., and then added only that the accused stole the note, the charge was found irrelevant, there being no averment that the accused had failed to return the change, and there being thus no certainty as to how the lawful custody of the note merged into an illegal appropriation (3). Where an article is lent for a time and stolen by the borrower, it is not enough to aver that it was lent for a short time and that the accused failed to return it, and stole it, without an averment of its being lent 1 Margaret Smith or Spalding, Aberdeen, April 25th 1854; 1 Irv. 463. 2 Rob. Michie, H.C., Jan. 28th 1839; 2 Swin. 319.-See also Thos. Paterson, H.C., July 22d 1840; 2 Swin. 521 (Indictment). 3 Margaret Mills, H.C., July 10th 1865; 5 Irv. 196.-The distinction between this case and that of Michie was, that from the terms of the libel in Michie's case, the accused was only a hand to convey the note to some other person to be changed, whereas the expressions in Mills' case indicated rather that the accused was herself to give change for the note, which therefore was her property, unless she failed to give change for it. |