MODUS. Latitude in general struc ture. administered. The Court held it necessary to libel such a case very distinctly, and that it was not sufficient to say that the accused failed to inquire as to the age and state of health of the person injured, and that a clear statement, indicating whether it was neglect of duty by a competent person, or improper assumption of a character by an incompetent person that was the basis of the charge, should be given (1). The following are illustrations of the latitude allowed in the general structure of charges of this class :-In a case of culpable neglect of duty, the charge set forth certain precautions which should have been taken, and that "all and each, or one or more of the precautions tions neglected."aforesaid," were culpably and recklessly omitted. An objection to this charge was repelled (2). Where the accused was charged with adding links of improper shape and construction to a chain, with defective materials and insufficient workmanship, the objection that the libel did not specify in what respect the things above detailed were faulty, was repelled (3). An in All or one or more of precau of sheriff's injunctions. Libelling neglect dictment which set forth that certain injunctions had been issued by the Sheriff in regard to the precautions to be taken in certain operations, was held relevant, the objection that the Sheriff had no power to issue such injunctions, and that therefore the libel was irrelevant, being repelled, on the ground that the Sheriff had power to issue such injunctions, and that the libel was not laid on the injunctions of the Sheriff alone, but on the narrative that these had been adopted by the accused's employers, and enjoined on him by them; and further, that the accused not only neglected these, but all other proper precautions for the safety of the lieges (4). A charge of culpable homicide, by 1 Chas. Buchan, Stirling, May 5th 1863; 4 Irv. 392 and 35 S. J. 461. 2 Jas. Finney, H.C., Feb. 14th 1848; Ark. 432. 3 Geo. Stenhouse and Arch. M'Kay, H.C., Nov. 8th 1852; 1 Irv. 94. 4 Jas. Auld, Aberdeen, Sept. 23d 1856; 2 Irv. 459 and 29 S. J. 3. firing a rifle in the direction of a place described as MODUS. "public," and "frequented by the lieges," was held relevant, though there was no further statement of culpa in the firing than that it was "culpably and "recklessly" done (1). In cases of culpable homicide, where the death results from disease supervening on Death from the injury, it is not necessary to allege anything in vening. reference to the disease. disease super ATTEMPT TO MURDER.-A charge of attempt to Attempt to murder at common law, sets forth— I. An averment of the acts done by the accused,such as that he fired at a person, or administered poison, or mixed poison with food, and placed it at a certain place in order that a certain person might take it, or gave the food to some one described, telling him to give it to a certain person, as the case may be; and— II. That he did this with intent to murder the said person (2). murder at common law. Charges under the statute making certain attempts Statutory to murder or injure capital (3), contain— I. A statement that the accused "wilfully, maliciously, and unlawfully" did certain acts described against a person described, II. (Where the offence is not charged as committed with fire-arms, in which case no averment of intent is necessary), "with intent in so doing, or by means "thereof, to murder, or maim, or disfigure, or disable "the said," &c.; and attempts to murder or injure. III. (Where the charge is one of throwing acids, a further statement is necessary, viz.), that the person was maimed, disfigured, or disabled, or did receive other grievous bodily harm, as the case may be. The words "maim" and "disfigure" are only used "disfigure 1 George Barbier and others, Inverness, Sept. 25th 1867; 5 Irv. 482 and 40 S. J. 1 and 4 S. L. R. 251. 2 See Madeleine H. Smith, H.C., June 30th 1857; 2 Irv. 641 and 29 S. J. 564 (Indictment). - Samuel 3 Act 10 Geo. IV. c. 38. "Maim" and when used. MODUS. Not practice to aver person a in cases of shooting, stabbing, and throwing acids. Although the Act speaks only of "His (Her) Majesty's British subject." subjects," it is not the practice to aver that the person attacked was a subject of Her Majesty (1). This offence is Concealment of pregnancy. Procuring abortion. CONCEALMENT OF PREGNANCY. charged by an averment I. That at a certain time and place the accused brought forth a (fe)male child (or a child the sex of which is unknown, as the case may be), II. That she did not call for, and make use of help or assistance in the birth; and III. The child was afterwards found dead or is missing (as the case may be). Although it is usual to state the sex, or that it is unknown, indictments in which no mention of the sex was made have been sustained, and the sex seems of no consequence. It is not necessary to state that the child was full grown (2). The statement at the end of the charge may be either confined to one or other of the averments of "found dead" or "amissing," or both may be stated alternatively. It is usual to state where the child was found, but it is not indispensable (3). PROCURING ABORTION.-A charge of procuring the abortion of a pregnant woman states— I. That a certain woman having become pregnant, II. The accused wickedly, &c., did a certain act (such as using an instrument in her body, or administering certain drugs), "for the purpose of causing her "to abort, or part in an untimely manner with the "fœtus or child then in her womb," III. In consequence of all which, or part thereof, 1 Some indictments contain an averment to this effect; e.g., David K. Michie, Perth, Oct. 10th 1845; 2 Broun 514 (Indictment drawn by Lord Justice General Inglis). 2 Alison Punton, H.C:, Nov. 5th 1841; 2 Swin. 572 and Bell's Notes 203 (Lord Justice Clerk Hope's charge). 3 Isobel M'Lean or Dobie, Perth, Oct. 7th 1845 (indictment).-Menie or Marion Gilbert, Aberdeen, April 15th 1842; 1 Broun 258 (indictment). the said person was at a particular time "wickedly MODUS, "of her pregnancy." A charge of attempt states the act done as above, Attempt. and avers the wicked and felonious intent of procuring the person to abort, "or part in an untimely manner," &c. ASSAULT.—A simple narrative of the act(s) done is Assault. all that is necessary in a charge of assault. It begins with the general statement that the accused did "wickedly and feloniously attack and assault" and then describes the assault-" and did with a stick "or bludgeon, or some other instrument to the prose"cutor unknown, strike him several or one or more "blows on the head or other parts of his person, and "did kick him," &c., &c. Or again, to take the case of one throwing a person off a carriage, after the general words "attack and assault," follow such words as these: "and did seize hold of him, and did violently throw or push him off the said carriage on which he was "then travelling, in consequence of which he fell upon "the said railway," &c. ing parents. BEATING OR CURSING PARENTS.-To a charge of Beating or cursbeating parents, all that is requisite is I. A similar specification as in a case of ordinary assault by blows, along with II. An averment of the relationship; and— III. A statement that the accused was then above or under the age of sixteen years (as the case may be), and not distracted. The crime of cursing parents is sufficiently charged Cursing. by a statement that the accused did I. Curse a certain person, MODUS. Hamesucken. Rape. Under puberty. Drugs. II. Being his father or mother, as the case may be, III. "Using the words (1) . . ," or similar expressions, IV. The accused being then above or under sixteen (as the case may be), and not distracted. HAMESUCKEN.—To constitute a charge of hamesucken, it must be averred I. That the accused went to a certain house, II. Being the dwelling-house in which A. B. lived, III. With the premeditated purpose of assaulting the said A. B. (2), and IV. That in pursuance of this purpose, he did then and there, within the dwelling-house, "attack and assault the said A. B.," and maltreat him in a manner described, and with certain results, such as effusion of blood and injury to the person. RAPE.-Rape is charged by an averment that I. The accused did "attack and assault" a female described, and did certain acts described, and II. "Did have carnal knowledge of her person forcibly and against her will, and did ravish her.” Where the female is under puberty, this is set forth, and the words "forcibly and against her will" are omitted. A charge of rape may state such facts as the administration of ardent spirits, or of drugs to the female, and that her powers of resistance were thereby totally overcome, or that she resisted as much as she was able in the circumstances (3). Where the female was imbecile and young, the charge stated the acts done to have been "forcibly and without her "will, or notwithstanding of such resistance on her 1 As to the necessity of setting forth the words used, see Hume i. 325. 2 In the case of Rob. Stewart and others, Ayr, Oct. 10th 1849, the objection that the libel did not aver the seeking for the premeditated Lord 3 Duncan Macmillan, Jan. 9th 1833; Bell's Notes 83. |