CHARGING TIONS. magistrate, the objection was sustained (1). But a MODE OF direct statement that the person held the office at the AGGRAVAtime is not indispensable, if it be necessarily implied. In a case of assault upon a clergyman, it may be inferred from a narrative such as this-"you having "formed the wicked intention of assaulting and beat"ing the reverend John Brown, minister of the parish "of did, in pursuance of said inten"tion, go to the manse of -, being the "for of injuring dwelling-house in which the said reverend John "Brown lived." (2) Again, where the aggravation Aggravation consists in the crime being committed against persons persons in engaged in executing their duty, it must be averred duty. that the accused knew them to have been so engaged (3). But an express statement is not requisite. Where mobbing and rioting was charged as committed "the purpose of obstructing and assaulting officers of "the law in the execution of their duty," it was held that this necessarily inferred knowledge that they were officers (4). And it is not necessary to describe the exact duty upon which the officers were engaged (5). Where one crime is charged as an aggravation of an- One crime as other, as where housebreaking is charged as an aggra- another, full vation of theft, the crime which constitutes the aggra- necessary. vation must be described as specifically as in a separate indictment for that offence. As regards libelling aggravations, it may suffice to 1 Geo. Cameron, Inverness, April 28th 1832; 5 Deas and Anderson 257 and Bell's Notes 187. 2 David R. Williamson, H.C., June 13th 1853; 1 Irv. 244. Alex. Alexander and Jas. Alexander, H.C., Jan. 22d 1842; 1 Broun 28, and Bell's Notes 102.Geo. Maclellan and others, H.C., Dec. 26th 1842; 1 Broun 478 and Bell's Notes 187.-Mr Bell in his Notes, p. 186, incorrectly states that in the case of Alexander the rele- 4 Helen Yuill and others, H.C., 5 Michael Devitt and Rose Davidson, H.C., June 12th 1843 (unreported); see J. Shaw 233 note.Telfer v. Moxey, H.C., June 2d 1849; J. Shaw 231. aggravation of narrative MODE OF hab. rep. state that all aggravations except previous convictions, and the charge of being a habit and repute thief, are set forth in the body of the charge. Allegations of previous conviction, and habit and repute, are inserted Prev. con. and at the end-" and you the said John Brown, are habit "and repute a thief, and have been previously convicted "of theft, "-" and you the said Thomas White have "been previously convicted of the crime of assault." In libelling a previous conviction of a crime depending on guilty knowledge, such as uttering, it is sufficient to say that the accused has been previously convicted of the crime" of using and uttering " a certain thing as genuine," without adding, "knowing the same to be forged," as the guilty knowledge is necessarily implied in the conviction (1). Conviction of LIBELLING DECLARATION. declaration signed. The last statement of fact relates to the emitting of a declaration. The form is invariable-" you, the "said A. B., having been apprehended and taken be"fore C. D., Sheriff of Midlothian, did, in his presence "at Edinburgh on the 14th day of June 1864, emit " and subscribe a declaration." If the prisoner re fused to sign, or was unable to write, the form is— I did emit a declaration which was subscribed by him "in your presence, you having declined to sign the same," or you having declared that you could not Statement that "write," (as the case may be). Where the declaration was not said to be signed, the prosecutor was not allowed to found upon it. (2). But it is not essential that the libel should state that the signature of the magistrate was appended in the presence of the accused (3). Any substantial mistake in stating before whom declarations were taken, will be fatal (4) When Libelling several there is more than one declaration emitted before the declarations. 1 David Scott and Geo. Sinclair, Nov. 19th 1832; Bell's Notes 188. 2 Ronald Gordon, H.C., Dec. 21st 1846; Ark. 196. 3 Margaret Plenderleith or Dewar, H.C., June 21st 1841; 2 Swin. 558 and Bell's Notes 278. 4 Angus M'Iver, Inverness, Sept. 1835; Bell's Notes 276. DECLARATION. same magistrate, it may be stated that the accused LIBELLING did, in presence of, &c., and upon certain dates, "emit "two several declarations." Where there were four declarations, the words, "did, in his presence on the "13th, 15th, 26th, and 29th days of March 1858, "emit and subscribe four several declarations," were held to make it competent to prove that one declaration was emitted on each of these days, and objection to the words as ambiguous was repelled (1). PRODUCTIONS. The indictment proceeds to enumerate the articles LIBELLING to be produced at the trial, thus:" Which declara"tion, as also a medical report or certificate, bearing to "be dated 18th April 1864, and to be subscribed Douglas Maclagan, M.D., Henry D. Littlejohn, M.D., F.R.C.S., or to be similarly dated and subscribed; "as also a hammer, as also a pair of tongs, as also an "extract or certified copy of a conviction of the crime "of assault, obtained against you, the said John Brown, under the name of John Barron, before the "Police Court of Edinburgh, on the 17th day of " June 1851; as also, extracts or certified copies of "two several convictions of the crime of assault ob"tained against you the said John Brown, under the name of John Brown, alias John Barron, before the "Sheriff Court of Edinburghshire, each with a jury, "at Edinburgh, on the 20th day of October 1854 and 18th day of November 1857 respectively, being to "be used against you, the said John Brown, at your trial, will, for that purpose, be in due time lodged in "the hands of the Clerk of the High Court" (or "Circuit Court," as the case may be) "of Justiciary, before "which you are to be tried, that you may have an opportunity of seeing the same." No elaborate de 1 John Macleod, Inverness, April 28th 1858; 3 Irv. 79 and 30 S. J. 521. The phraseology was ambiguous. The following would have been better: "did in his presence emit "and subscribe four several decla- LIBELLING PRODUCTIONS. Elaborate description unnecessary. scription is required, if sufficient information be given to enable the accused to know what to look for in the Clerk's hands. In one case the words " part of a dress" were held too vague, as it should have been stated whether it was a male, female, or child's dress that was meant (1). Where a book, which was to be produced, was described as a "day-book kept by" A. B., while the book actually produced was blank and contained no writing whatever, the production was withdrawn upon the objection that such a book could not be truly said to be "kept" by any one (2). But where it was objected that a production was libelled on as a "penny piece," and that the article produced was so worn as to be practically only a piece of copper, and further that it was at any rate of a coinage which had been called in, and not a current coin, the objection was repelled (3). The dates and names by which medical reports, &c., are described, must be correct. A medical report was withdrawn which was described as signed, "Octavius D. Trezivant," while in reality it was signed "Octavius U. Trezivant" (4). In cases where the articles have already been described, it is former descrip- sufficient to refer to the former description :-" The money above libelled, or part thereof." But such a reference must be so expressed as not to create ambiguity (5). Articles de scribed before, tion may be referred to. Convictions so described as to prevent mistake. If convictions be so described as to prevent mistake, punctilious adherence to the form above given is not required. Where "two complaints and convictions, "dated respectively 18th Dec. 1832 and 16th Dec. "1837," were libelled on, the objection that the date of the first though correct as regarded the conviction, 1 Mary Wood, H.C., Nov. 7th 1856; 2 Irv. 497 and 29 S. J. 5. 2 Joseph M. Wilson, H.C., June 8th 1857; 2 Irv. 626 and 29 S. J. 561. 3 Jas. Bell and others, H.C., Jan. 19th 1846; Ark 1. 4 Jas. Matheson, H.C., Nov. 20th 1837; 1 Swin. 593 and Bell's Notes 276. 5 John Wilson and Donald Macgregor, Perth, Sept. 1834; Bell's Notes 277. PRODUCTIONS. to state name accused was not the date of the complaint, was repelled (1). LIBELLING Again, in a case where there were two accused, one conviction being libelled on as obtained against “you, "the said John Mackie," and the libel charging another as obtained "against you," without adding the name, and concluding with the usual statement that they were to be used in evidence" against you, the "said John Mackie," the description of the second conviction as applicable to John Mackie was held sufficient (2). Where previous convictions have been ob- Not necessary tained against the prisoner under different names, under which these names should be stated in the libel, but their convicted. absence is not fatal (3). A conviction in a Sheriff Court jury case is properly described as "before the Libelling "Sheriff, with a jury," although the prisoner pleads confession in guilty and is sentenced without a jury being empanelled (4), even where this is done at the first diet when no jury is present (5). Where the previous Coining conviction was under the Coining Acts, and was described being " of the crimes and offences set forth in "the before recited section of the statute above "libelled, or of one or other of them," the objection was repelled that this did not state of what the panel had been convicted (6). Convictions in coining cases should be recited in the Scottish mode, the section of the statute relating to this matter not applying to Scotland (7) conviction on sheriff court. convictions appended by A long series of articles may be appended and re- Articles ferred to, thus-"as also the books, writings, and inventory. other articles specified in an inventory hereto an"nexed and referred to, or part thereof." 1 Catherine Rae or Allan, July 8th 1840; Bell's Notes 276. 2 Alex. Rae and John Mackie, Aberdeen, April 1830; Bell's Notes 277. 3 Margaret Brown or O'Hara, H.C., May 23d 1842; 1 Broun 352 and Bell's Notes 276. 4 Catherine Connolly or M'Kay, H.C., July 11th or 14th 1859; 3 5 George M'Rae, H.C., Nov. 7th 6 Andrew Dott and Thos. Dott, Perth, Oct. 2d 1855; 2 Irv. 228. 7 Chas. S. Davidson and Stephen Francis, H.C., Feb. 2d 1863; 4 Irv. 292 and 35 S. J. 270. |