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Indecent practices, case of children.
A charge of attempt is as above, except that the averment of penetration is omitted, and " attempt to “have," is used instead of “had thus."
BESTIALITY.—A charge of bestiality sets forth in the most general terms that the accused“ did have “ unnatural carnal connection” with a “certain animal,” describing to whom the animal belonged.
An attempt is charged in equally general terms (1).
INDECENT PRACTICES.—Charges of impropriety towards children set forth—
I. That the accused did wickedly and feloniously use lewd, indecent, and libidinous practices and behaviour
II. Towards a person named,
III. Being then six years of age or thereby, or otherwise under the age of puberty,
IV. By doing certain things described, and “ by “ using other such lewd, indecent, and libidinous prac“ tices and behaviour towards the said —," &c.
Where, in addition to using lewd practices, the charge is “seducing and debauching" the minds of children thereto, a statement is added, that the accused did so seduce and debauch the child and induce it to do certain things described. In a charge of this sort, without assault, and not committed on a person of immature intellect, or by a person who had any charge of the child, such as a parent or teacher, it is not permissible to state the child, if a girl, to have been" under or about" the age of puberty, as that may mean above puberty, in which case, without some of the elements above mentioned, there could be no relevant charge (2). The case of boys may possibly admit of a charge in such terms (3).
Where indecent exposure is committed, not in the 1 Jas. M'Givern, H.C., May 16th 3 Andrew Lyall, Perth, April 1845 ; 2 Broun 444.
26th 1853 ; 1 Irv. 218 remarked 2 Rob. Philip, H.C., Nov. 2d upon by Lord Justice Clerk Hope 1855; 2 Irv. 243 and 28 S. J. 1. in the case of Philip supra.
Seducing and debauching.
Age of female child must be specitic.
form of lewd, indecent, and libidinous practices, but Modus. as an outrage on public comfort and respectability, Elaborate specigreat particularity is necessary. For it may be a indecent exquestion of nicety, where the line is to be drawn between mere carelessness and criminality. Where the charge relates to public exposure, what is indispensable seems to be, a statement that the accused did
I. “Wickedly and feloniously” expose himself in a manner particularly described,
II. At a place described, being a place of public resort, or visible from a place of resort near it,
III. That it was done in view of certain persons named, or that the persons are to the prosecutor unknown (1).
A charge was held irrelevant where it was not set forth that the place was public, or whether the only building mentioned in the libel was inhabited, or who was annoyed (2).
Where the charge consists of acts of indecent Exposure to the exposure, not in a place of public resort, but to the viduals. annoyance of individuals, the circumstances must be set forth with such minuteness, as necessarily to imply a deliberately indecent act of exposure.
DEALING IN OBSCENE WORKS.—A charge for this Obscene works. offence states that the accused did
I. Wickedly and feloniously” publish a book, named by its title, by exposing the same for sale, and did then and there wickedly and feloniously expose the same for sale, and that,
II. The said book contains "lewd, impure, gross, " and obscene passages,” devised, contrived, and in
outrage of indi
1 But see De Belmont v. Lang, H.C., June 28th 1871; and Glasgow, Sept. 28th 1871 ; 2 Couper 95 and 43 S. J. 522 and 8 S. L. R. 600, where a conviction, on a summary complaint, which stated only
that the act was done “in view of “ two females,” without further specification, was sustained.
2 Mackenzie and others v. Whyte, H.C., Nov. 14th 1864 ; 4 Irv. 570 and 37 S. J. 68.
tended to vitiate and corrupt the morals of the lieges, particularly the young, and to create in their minds inordinate and lustful desires, &c.,
III. The passages are either quoted, or it is averred that they are unfit to be set forth at length or read in Court, and that a copy of the book “is now lodged ” with the Clerk of Court, to enable the accused to see the passages which are described by the pages in the book (1).
It is not sufficient to set forth that a book named was all, or the greater part thereof, of the tendency above described (2).
BLASPHEMOUS OFFENCES. —A charge of dealing in blasphemous books sets forth that the accused did
I. Wickedly and feloniously expose for sale a book described by its title, and did
II. Publish, vend, and circulate the said book, by exposing the same for sale, and where this is the fact, by selling and delivering it to a person described, in consideration of a sum of money named, paid to the accused as the price, and
III. That the book was "profane, impious, and blasphemous,” and contained passages denying the truth and authority of the Scriptures, and of the Christian religion, and "devised, contrived, and “ intended” to asperse, vilify, ridicule, and bring into contempt Scripture and Christianity, particularly certain passages quoted.
PROFANITY.—The term profanity is rarely applied in modern practice, except to breaches of the peace committed in churches during service. No form can be useful, as circumstances must, almost necessarily, affect the form of charge. A narrative of the facts,
A prefaced by such words as wickedly, wilfully, and “ profanely” seems to constitute the only requisite of such a charge.
1 Henry Robinson, H.C., Nov. 9th 1843 ; 1 Broun 643.
2 Henry Robinson, H.C., July 24th 1843 ; 1 Broun 590.
PERJURY AND OTHER CASES OF MAKING OATH TO Modus. FALSEHOOD.—A charge of this sort contains
Perjury, &c. I. A narrative of the circumstances which led to the oath being emitted,
II. A statement that the accused was duly sworn to speak “the truth, the whole truth,” &c.,
III. That he wickedly and feloniously, and knowingly, wilfully, and falsely deponed, “ in the following
words,” which were taken down at the time and signed, or (if the oath was not reduced to writing), that he “wickedly,” &c., deponed“ in the following or similar terms,
IV. “ Whereas the truth is, and it will be proved, “ that the facts, or part thereof, so sworn to by you, " the said John Brown, are false, and were known to you at the time to be false,"
V. “Inasmuch as, the truth is, and you well knew “ that—" &c., &c., as the case may be.
The words, “and it will be proved,” are sometimes inserted again in the “inasmuch ” clause, but this seems unnecessary.
Where the oath was taken down and signed, it is not necessary to aver that it was read over before being signed (1). Where the oath is not in the form of evidence given on oath, instead of the second and third heads above, the charge bears that the accused did falsely, &c., swear an oath, in the terms quoted (2).
The statement of the facts must expressly relate to, Facts stated and be an exact negative of, the statements in the and negative oath. Where it was averred that the accused, speaking of an agreement, swore it did not apply to“
every article," and the charge qualified the statement that the agreement did apply to every article by the words, “ or at least all articles
except wood, hay, and
1 Janet Turnbull, H.C., March 13th 1833; Bell's Notes 98 and 5 S. J. 337.
2 John Barr, H.C., Jan. 230 1839; 2 Swin. 282 (indictment).
straw,” the clause was beld irrelevant (1). Again, where it was libelled that the accused's state of affairs, subscribed as relative to his oath in bankruptcy, did not contain a full and true account of his estate, this allegation was struck out, there being no statement that it was not a full and true account when the oath was emitted (2). But where it was objected that the averment of fact did not contradict the false deposition, as the accused was said to have sworn “I “ repaid Mr Doig about ten pounds,” whereas the truth was affirmed to be “ that you had not repaid £10 to
Mr Doig,” the objection was repelled, probably because the averment was made distinct by the statement that the accused had not paid the said Alex. Doig any sum of money” (3.)
Where the perjury consists in distortion or falsification of facts which did occur, it is usual to deny the statements made seriatim. But if the statement of the facts is made a direct negative of the deposition, by stating any fact which makes it impossible that the latter should be true, that is enough. Thus, if the deposition bear that the accused witnessed certain things at a certain time and place, it is sufficient to allege the truth to be he was not at the place specified by him at the time sworn to, “and did not see or hear
any of the circumstances deponed to by him, as “having then and there taken place.”
SUBORNATION OF PERJURY.— The charge sets forth
Form where statement makes truth of oath impossible.
1 Thos. Bauchop, H.C., July 6th 1840; 2 Swin. 513 and Bell's Notes 93.–See also Hume i. 367, and case of Lawson there.
2 Will. Inglis and Catherine Inglis, Glasgow, April 23d 1863 ; Irv. 387 and 35 S. J. 461. See also John M.Kay or M‘Key, H.C., Nov. 26th 1866 ; 5 Irv. 329 and 39 S. J. 43 and 3 S. L. R. 54.
3 Jas. Henderson, Perth, Sept.
30th 1862; 4 Irv. 208 and 35 S. J. 52. The rubrics of both reports seem to lay down a very doubtful proposition, not supported by the reports themselves, viz., that it is not necessary
" that the facts which “ the prosecutor sets forth and in“ tends to prove against the panel, “ should be a direct logical contra“ diction of "the oath.