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In High Court.
In criminal letters,
The libel concludes—“ All which, or part thereof, being found proven by the verdict of an assize, o:
admitted by the judicial confession of you, the said “ John Brown, before the Lord Justice General, Lord
Justice Clerk, and Lords Commissioners of Justiciary, you, the said John Brown, ought to be punished with the pains of law, to deter others from
committing the like crimes in all time coming." In cases for Circuit, after the words Commissioners of Justiciary follow the words “in a Circuit Court of
Justiciary to be holden by them, or by any one or
more of their number, within the burgh of in “ the month of in this present year 18–." In criminal letters the conclusion is the same except that in Supreme Court cases the words “Our Lord “ Justice General,” &c., are used instead of “the Lord
Justice General,” &c., and in Sheriff Court cases the words “ before me or any
my substitutes,” are used instead of the words “ before our Lord Justice General,” &c.
Where the words “being found proven by the verdict of an assize" were omitted, the accused objected after the jury were sworn to their returning any verdict, and the objection was sustained (1). The words “to deter all others," &c., though of invariable style, are not material, the indictment being
complete with the words “pains of law” (2). In Will in criminal criminal letters the will or direction to officers of law
forms the conclusions of the libel. In jury cases in the Sheriff Court, the will names two diets of compearance, the second being nine clear days after the first (3). The libel is signed on each page.
Criminal letters are signed by the Clerk of the Court; Indictments by the Lord Advocate, or one of his deputes.
Inventories of articles, or circumstances ; or appendices, setting forth the tenor of documents are placed
Omission of statement as to verdict fatal.
Words "to “deter," &c. not essential.
1 Hugh M'Neillage. Inverary, April 2d 1863; 4 Irv. 357 and 35 Sept. 18th 1850 ; J. Shaw 459. S. J. 515.
2 Dawson v. Maclennan, H.C., 3 Act 16 and 17 Vict. c. 80 $ 35
INVENTORY AND APPENDICES.
after the conclusion in indictments, and after the will INVENTORY in criminal letters, and headed "Inventory" or "Ap- DICES, pendix referred to in foregoing indictment" (or "criminal libel "), as the case may be. Where there "inventory" (or "appendix"), No.
is more than one ---referred to," &c., is the form. They must be Must be signed. signed as the libel is, by the prosecutor in an indictment, and by the Clerk of Court in criminal letters (1). An objection that the inventory of criminal letters was not signed by the Clerk but by the Advocate Depute was sustained (2).
Appended is a list of the prosecutor's witnesses. LIST OF The names must be substantially correct. If John be Name must be substantially put for James, or Low for Law, the result is that the witness who is afterwards produced, is not the person of whom notice was given (3). And this rule is not affected by the statutory regulation, that if the accused has been misled by the name and designation given, the objection shall be stated before the jury is sworn, for where either is not only misleading but ab solutely wrong, the objection may be stated although the jury have been sworn, the question being the identity of the witness (4). But a mere difference of spelling will not found an objection, unless it truly alter the name (5). The rules in reference to the Rules as to naming of the accused apply to the naming of witnesses, cused generally Where a witness was named "Octavius Decimus Tre
zivant," the objection that "Decimus" should have
1 Alison ii. 318, 319.-ii. 593. 2 J. Reid and M. Shirreffs, H.C., May 29th 1826; Shaw 157.
3 Hume ii. 370, cases of Stevenson and others: Mackenzie: and Kennedy in note 2-ii. 371, cases of Gray Smith and Brodie: and Smith there.-Alison ii. 411, 412, and cases of Campbell and Mackay: and Car there.-David Muir, Inverary, Sept. 12th 1821; Shaw 55.
4 Act 9 Geo. IV. c. 29 § 11-John M'Cabe and others, Glasgow, Jan. 12th 1838; 2 Swin. 20-Pet. Kelly and others, Glasgow, Sept. 23d 1843; 1 Broun 618.
5 Hume ii. 158, case of Cook in note 3. The designation here was that of the injured party in the libel, but the principle is the same. Alison ii. 411 to 413.
Designation once given may be referred to.
been "Undecimus' was repelled, as one Christian name and one surname would have been enough (1).
In designing witnesses, all that is necessary is to supply the accused with information to enable his advisers to find them. Accordingly, the designation is usually in the simplest form-" now or lately a "constable in the Edinburgh Police,"-spirit dealer,
now or lately residing in Lyon's Lane, in or near "Port Glasgow" (2). Where the witness has no fixed residence, a reference to a place where he has resided, and where he may be "heard of," may suffice (3). The rule that what has once been detailed need not be repeated, applies to witnesses, so that a person once named may be referred to thus :-" Ann Brown, millworker, now or lately residing with Jean Brown, or Aiton, above designed." Mere inaccuracies in the designation will be of no consequence, unless the accused can show that he has been misled (4), and his objection must be stated before the jury are sworn (5),
Inaccuracy of no consequence unless accused misled.
1 Jas. Matheson, H.C., Nov. 20th 1837; 1 Swin. 593 and Bell's Notes 262.
2 The words "now or lately" are invariably used, and cover a period of some months.-Hume ii. 372, case of Knox and others in note 2.Alison ii. 427, 428, cases of Macdougall Jones and others: and Cockburn there.-Chas. Maclaren and others, H.C., Jan. 11th 1823; Shaw 92.
3 John Skeldoch, Perth, April 18th 1830; 5 Deas and Anderson, 149.
4 Hume ii. 372, cases of Gardiner Macdonald and Black: Gray: Cowan Stewart: and Burnett and Ross in note 2.-Alison ii. 416 to 419.
5 Act 9 Geo. IV. c. 29 § 11. This enactment almost entirely put an end to the critical objections formerly taken. The following are a few of the cases prior to the Act:
(1.) Cases in which objections were sustained-J. Stewart, Perth, Sept. 17th 1824; Shaw 122.-Ann M'Gill or Mizzlebrook and Andrew Macdonald, H.C., Nov. 27th, 1826; Syme 18-Mysie or Marion Brown or Graham, H.C., March 13th 1827; Syme 152.-(2.) Cases in which objections were repelled.-G.Johnston and J. Ferguson, Perth, Sept. 16th 1822; Shaw 78.- Archibald Ormand, H.C., Dec. 9th 1822; Shaw 92. Chas. Maclaren and others, H.C., Jan. 11th 1823; Shaw 92.Will. Wilson, Aberdeen, Sept. 19th 1823; Shaw 102.-Joseph Bogle and others, H.C,, Nov. 22d 1824; Shaw, 129.-Jas. Mitchell and John Sharp, H.C., July 11th 1825; Shaw 134.-Will. Thomson and others, H.C., Jan. 22d 1827; Syme 56. A great many cases both ways will also be found in Hume ii. 370 to 374.-Alison ii. 414 to 425 and Bell's Notes, 262, 263, 264.-See as a re
and it will not be listened to even then unless enquiries were made in order to find the witness (1). And where the accused has found the witness, notwith-before jury standing errors in his designation, he has no ground of No objection if complaint (2). The question whether there may not be a good objection to a witness on the ground of in
Is objection erer correct designation, even after the jury are sworn, is competent after
jury sworn ? one which has not yet been decided. But it is thought that, according to the analogy of the cases already mentioned, where a wrong name was held to found an objection after the jury were sworn, cases might occur in which a wrong designation of a witness would found an objection even if made after the jury were sworn. For a wrong designation may as completely destroy identity as an error in name. Suppose that the prosecutor puts in his list, “ David Black, stonemason,” residing at a place named. The accused's legal adviser accordingly enquires at the place after David Black, stonemason, and finds him. But at the trial a different man is put into the box, and it turns out that this person is David Black, a weaver. Here there is direct prejudice to the accused. For he found the
. person described, and therefore had no objection to state before the jury were sworn. But the prosecutor having misled the accused as to identity, could hardly fall back on the statute, and maintain that the objection came too late; otherwise when there were two personsof the same name living in the same place, it would be always in the power of the prosecutor, to give notice of the wrong one, and then by appealing to the statute to shut out all objection founded on his having misled the accused. Nor does the Act imply anything so unjust, for it pro
cent case Jas. Williamson, H.C., Nov. 18th 1866 ; 5 Irv. 326 and 3 S.L.R. 54.
1 Alison ii. 426,-ii. 409, case of Rodgers there.-Geo. M‘Kay, alias Bain and others, Inverness, April
13th 1839; 2 Swin. 344 and Bell's Notes, 263.
2 Jas. Wortley and Jas. Green, Dumfries, Sept. 24th 1828; Syme appendix p. 50.
vides only that no objection founded on inability to find the witness, or his having been misled or deceived in his enquiries, shall be received after the jury is
But in the case supposed, the objection is not that the accused has been misled in enquiring, but that he has been misled by having a person pointed out to him by the indictment, when, in fact, the prosecutor intends to call a different person, about whom the accused never heard until he was called.
The list of the witnesses is signed by the prosecutor in both modes of libelling (1).
List of witnesses signed.
In will of letters.
Letters of diligence.
The warrant for citing the accused, witnesses, and assize, is in criminal letters contained in the will. In the case of indictments, the Clerk of Court, on exhibition of the indictment or a copy signed by the Crown agent (2), or upon a requisition containing the necessary information, signed by the Lord Advocate or his Depute, or the Crown Agent or first or second Clerk in the Crown Office in Edinburgh (3), issues letters of diligence.
The libel may be executed by a macer of Court or messenger-at-arms, or by a Sheriff or Steward's officer of the county where the execution takes place (4). The officer must be duly vested in his office, but need not have the warrant with him at the time of citation (5).
A full copy is served on the accused, with a short notice of citation upon it, and signed by the officer and one witness (6). A “full copy” is not held to
Must be duly vested.
1 Hume ii. 249.- Alison ii. 318, Campbell 338.—Walter Crawford, 319.
Jedburgh, Sep. 31st 1822 ; Shaw 2 Act 11 and 12 Vict. c. 79 2. 89.-Act 11 and 12 Vict. c. 79 $ 6.
3 Act 31 and 32 Vict. c. 95 $ 11. 5 Act 9 Geo. IV. c. 29 $ 7.As regards citing witnesses, where Alison ii. 327. there are two diets, see $ 9.
6 Act 9 Geo. IV.c. 29 $6.-Hume 4 Hume ii. 242.--Alison ii. 328.- ii. 243.-Alison ii. 312.
* Full copy."