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MODUS.

giving a narrative of its nature, charges that, in pursuance of the conspiracy, the accused did certain things, the details being such as are necessary to constitute the crime, for the perpetration of which the conspiracy

is said to have been organised. Procuring crime. PROCURING THE COMMISSION OF CRIME.—Charges

of this sort may safely be drawn upon the model of a charge of subornation of perjury, or attempt to suborn. A statement of the scheme, and the enticement (giving its nature, and taking a latitude of some other means “ of inducement, to the prosecutor unknown"), seems all that is necessary to constitute a good charge of attempt to procure.

STATEMENTS
SUPPLEMENTARY
TO NARRATIVE.

facts may be libelled.

The statement of the modus being made, it is not easy to specify what facts, following or resulting, may be set forth. Of course, those facts which are of the essence of the offence, or of an aggravation, such as

the death, in a case of murder, or the danger to life What subsequent in a case of assault, must be set forth. But it becomes

a more difficult question, when details of events subsequent to the offence, but which are not necessary to its constitution, are inserted. The following are instances in which subsequent events may be stated. In cases of fire-raising, it is usual to state that the fire was "thereafter discovered, and by the exertions “ of well-disposed persons was subdued and extinguished" (1). Where the accused was charged with

( falsely taking the oath of possession under the Reform Act, a statement that he thereafter did vote was allowed to remain part of the libel (2). Where the charge was incest, the prosecutor averred, without objection, that in consequence of the incest, the female

1 John M‘Bain, Aberdeen, April 25th 1854; 1 Irv. 461 (indictment). -- John Mackirdy, Glasgow, Oct. 1st 1856 ; 2 Irv. 474 (indictment). -Dan. Black, H.C., Jan. 9th 1857;

2 Irv. 583 (indictment).- Patrick Anderson, Glasgow, Oct. 1st 1861 ; 4 Irv. 95 (indictment).

2 John Barr, H.C., Jan. 23d 1839; 2 Swin, 282 and Bell's Notes 190.

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unusual circumstances.

accused became pregnant and bore a child (1). In Modus.
these cases, however, the facts were mere incidents of
the crime, and could have been proved without notice in
the indictment. The averment was, therefore, plainly
competent, though unnecessary. On the other hand,
the prosecutor has been held not entitled to add to a
charge of assault that the person assaulted “having
“been terrified” by the violence, committed suicide,
there being nothing in the libel to shew that the
suicide was a direct consequence of the assault, and
there being no aggravation in the major (2).

It is in cases where the prosecutor proposes to Allegations of account for unusual circumstances connected with the prosecution, that the greatest latitude of statement of facts subsequent to the offence is permissible. Where the accused in a case of forgery has destroyed the document, it is competent to aver the fact, to account for its non-production (3). Again, it has been found competent to account for delay in bringing the accused to trial, or for latitude taken in specifying time.

case of theft and breach of trust, the Concealment of libel may set forth the means by which the accused concealed his offence, e.g., by failing to enter in the books of his master the sums he received (4). the trial has been delayed by the flight of the accused, it is usual to say "And you, being conscious of your

guilt in the premises, did abscond and flee from “justice.” And where the accused has been pre- Outlawry. viously indicted and outlawed for non-appearance, this fact is also sometimes stated (5). The law is now more strict than formerly as to the Results likely. if

In a

defalcations.

Where Absconding.

. 1 Will. Cuthbert and Isobel 4 Thompson Aimers, Ayr, Sept. Cuthbert, Perth, April 26th 1842; 24th 1857; 2 Irv. 725.-See also 1 Broun 311 (indictment).

Ebenezer Beattie, Dumfries, April 2 John Robertson, Perth, May 28th 1850; J. Shaw 356 (indict8th 1854;

ment). —John Rae, H.C., May 16th 3 Dionysius Wielobycki, H.C.,

1 Irv. 472. Jan. 8th 1857; 2 Irv. 579 (indict- 5 Rob. Potter, Glasgow, May 2d ment).

1844; 2 Broun 151 (indictment).

Irv. 469.

1854;

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AVERMENT OF
MALICE,

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insertion of hypothetical statements of consequences which might have ensued from the crime. It used to be not uncommon to append some such statement as that the accused was "only prevented from com"mitting further depredations by being there and then “ detected in the act of stealing;” or in cases of fireraising, that the fire “would probably have burned the “whole tenement and adjoining houses, if it had not “ been discovered and extinguished ” (1). But such statements, being guesses, seem out of place in a document so strictly logical as a libel.

In cases of murder and other personal injuries, where the prosecutor proposes to prove malice at a considerable interval before the offence, he must give notice in the libel, thus :-“And you the said A. B. “ did previously evince malice and ill will against the “said C. D.” (2). A statement in this form is sufficient without any particulars (3). But it is not relevant to state that the accused did “conceive ” malice, as this does not indicate anything specific (4). Where the malice was evinced by previous violence, it is enough to say: "Did previously evince malice and “ill will against the said C. D., by repeatedly threat“ening, beating, and assaulting her" (5). But such

1 David Muir, H.C., Nov. 28th 4 Will. Alexander and Janet 1836; 1 Swin. 402 (indictment). - Blackwood alias Martin, H.C., Jan. Mary Lorimer, Aberdeen, April 27th 1827 ; Syme 63. But the con19th 1838; 2 Swin. 100 and Bell's ceiving of malice may be set forth Notes 190.-Nicol Laidlaw, July in the preliminary narrative. 13th 1838; Bell's Notes 191.- Agnes Hutton or Cromarty and Harris Rosenberg and Alithia Jas. Connell, H.C., July 21st 1843; Barnett or Rosenberg, Aberdeen, 1 Broun 588. April 16th 1842; 1 Broun 266 and 5 Joseph Rae and Rob. Reid, Bell's Notes 191.

H.C., July 22d 1817 ; Hume ii. 238, 2 Alison ii. 301.

note 1, and 2 Broun 130, note 1.3 Alex. Marshall, Perth, Sept. Thos. Wilson, H.C., March 14th 1835; Bell's Notes 218.-Janet 1844 ; 2 Broun 129 (indictment). Campbell or Maclellan, H.C., Nov. Dundas M‘Riner, H.C., July 24th 4th 1846; Ark. 137 (See several 1844 ; 2 Broun 262 (indictment).cases quoted by the Lord Justice See also numerous cases mentioned Clerk Hope, in giving his opinion by the Lord Justice Clerk Hope in in this case).

Janet Campbell or Maclellan, H.C.,
Nov. 4th 1846 ; Ark. 137.

MALICE.

expressions must be clearly connected with, and made AVERMENT OF part of the charge of, malice. Where, instead of saying "by maltreating" &c., the charge, after stating the malice, added, "and had on previous occa"sions beaten and maltreated her," this passage was struck out (1). Where there are several charges, it is not necessary to append a separate averment of malice to each; one averment at the close is sufficient (2).

AGGRAVA

by major or affirmation.

It is unnecessary to speak at length of the mode CHARGING of charging aggravations. No aggravation can be TIONS. averred which is not covered by the major. Thus, not covered where a charge of using improper practices to a child, stated that the accused communicated venereal disease to the child, "whereby she was seriously injured "in her person and health," these words were held irrelevant, there being no aggravation in the major (3). In the same way, no aggravation can be charged which is not averred in the affirmation of guilt, e.g., where the affirmation charges theft aggravated by previous conviction only, it is incompetent to aver that the accused is habit and repute a thief (4). Nor may Aggravation the aggravation be stated higher than the averment of higher than it in the major. Where the major charged previous major. conviction of theft only, and the accused was stated to have been convicted of theft by housebreaking, it was held that the conviction could only be founded on as one of theft, without the aggravation (5).

must not be

statement in

It is indispensable that the charge set forth facts Aggravation relevant to support the aggravation(s) in the major,

must be covered

1 Rob. Morrison, Glasgow, Dec. 27th 1842; 1 Broun 499 and Bell's Notes 79.

2 Walter Ronaldson, H.C., May 15th 1856; 2 Irv. 426.

3 Jas. Mack, Glasgow, Dec. 22d 1858; 3 Irv. 310.

4 Will. Harvey and Jas. Macculloch, Feb. 2d 1835; Bell's Notes, 184.

5 Purves Parlan and Watson Parlan. Feb. 27th 1832; Bell's Notes 178.-The proper course in such a case is to allege the previous conviction in general terms as for the crime of theft without mentioning that it was aggravated.-See Alison ii. 591.

MODE OF CHARGING AGGRAVATIONS.

and in the affirmation, e.g. if the charge be theft, aggravated by previous conviction, it must be averred that the accused has been previously convicted of theft (1): or, if the charge be assault, especially when committed by a son upon his father, the subsumption must bear that the injured party was the accused's father; or if the assault be charged as committed with intent to ravish, it must be specifically alleged that such was the intent. Thus, where under the Coining Statute, a certain act following on previous conviction of certain offences, was declared to be a high crime and offence, a charge that the accused was guilty of the high crime and offence was held irrelevant, it not being averred that he had been previously convicted (2). Again, where the following was stated in the major in aggravation of reset—"especially “ where goods stolen by a youth from his employers are “ feloniously resetted by his parents,” but the narrative did not state that the thief was the resetter's son, or that his parents knew the things stolen to have belonged to his employers, the aggravation was passed from on objection (3). In the same way, the words “to the griev“ous injury of the person ” being in the major, the objection that there was no corresponding statement of

fact was held good (4). Where the aggravation consists Aggravation in the fact that the accused or the party injured holds person holding a certain position such as the office of magistrate or

.
minister of religion, constable of police, or the like-
it must be averred that he held the office at the time.
Where it was objected that there was no statement
that the person was a magistrate at the time, although
his designation in the libel described him as being a

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consisting in

1 Elizabeth Cameron or Mathie- 3 Alex. M'Craw and others, July son, H.C., July 14th 1856; 2 Irv.

20th 1831 ; Bell's Notes 187.

4 John Stuart and Catherine 2 Will. Morrison and Mary Cur- Wright, June 15th, 1829 ; Bell's ran or Smith, Glasgow, Dec. 28th Notes 180.-See also John Runcie, 1864; 4 Iry. 582.

Inverness, April 1832; Bell's Notes

445.

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