DESERTION IN Court (1). DIET. Further, the prosecutor is not entitled to have the relevancy of the defence discussed at the calling of the diet, in order that he may see whether it will be advisable for him to move the desertion of the diet (2). Desertion of the diet simpliciter does not necessarily prevent a trial on a new libel (3). If the prosecutor, instead of moving a desertion pro loco tion simpliciter. et tempore, move a desertion simpliciter, he cannot prosecute again (4), but a desertion of "the libel" on the prosecutor's motion, does not preclude the prosecutor from raising a new libel (5). The right to move a desertion pro loco et tempore, does not cease until an assize has been sworn (6). Prosecutor moving deser Desertion of "libel. Desertion competent till assize sworn. ASSIGNING INTERPRETER. PLEAS IN BAR. On the diet being called, the Court, if the accused has no legal adviser, appoint him counsel, or in the Sheriff Court, an agent, unless he expressly decline professional services (7). If he be deaf and dumb (8), or do not understand English (9), the Court appoint an interpreter. The first matter to be disposed of is any plea in bar Pupilarity and of trial which may be raised, such as pupilarity or present insanity. The Court in such cases allows a insanity. 1 Hume ii. 276, and case of Archibald there, and cases of Macphie and Edgar in note 1.Alison ii. 98.-ii. 355, 356.-John Ross and others, Glasgow, May 5th 1848; Ark. 481 (Lord Mackenzie's opinion). Hannah M'Atamney and Henry or John M'Atamney, Dundee, April 6th 1867; 5 Irv. 363 and 39 S.J. 386 and 4 S. L. R. 1. 2 Rob. Forsyth and others, Stirling, April 27th 1866; 5 Irv. 249. 3 Edward Tabram, H.C., May 23d 1872; 2 Couper 259 and 44 S.J. 416 and 9 S. L. R. 469. 4 Hume ii. 277, and case of Leslie there.-Alison ii. 357. 5 Stewart v. Mackenzie, Inverness, April 29th 1857; 2 Irv. 616 and 29 S.J. 345. 7 John Ross and others, Glas gow, May 5th 1848; Ark. 481.John Martin, H.C., July 22d 1858; 3 Irv. 177. 7 Act 1587 c. 91.-Hume ii. 283, 284. Alison ii. 370, 371.-John Hannah and Hugh Higgins, Dumfries, Sept. 17th 1836; 1 Swin. 289. In this case, as no counsel appeared at Circuit, the Court appointed the Sheriffs to defend. 8 Hume i. 45, case of Campbell in note 2.-David Smith, Perth, April 28th 1841; Bell's Notes 231.-Donald Turner, Glasgow, Sept. 25th 1861; 4 Irv. 93. 9 Allan Maclean, Dec. 1st 1828; Shaw 202 and Bell's Notes 231.Murdo Mackay and others, Jan. 31st and Feb. 21st 1831; Bell's Notes 231. proof without impanelling a jury (1). If pupilarity be PLEAS IN BAR. proved, the Court will at once assoilzie the accused. Where insanity is proved, the Court find that the accused cannot be tried, and order him to be confined till the Royal pleasure regarding him be known (2). Although no question as to sanity be raised, the Court, if they see cause, will, ex propria motu, investigate whether the accused be a fit subject for trial or not (3). jurisdiction. found irrelevant. Another plea in bar is, that the Court has not Want of jurisdiction. Another is that of res judicata. First, Res judicata. as regards the libel: if the accused have been placed Trial on libel at the bar, on a libel, and that libel has been found the same as one irrelevant by the Sheriff-Substitute, it is incompetent to place him on his trial on a libel in precisely the same words before the Sheriff (4). But, on the other hand, a judgment in the Sheriff Court is not binding on the Justiciary Court (5). The plea which oftenest occurs is, that of "tholed an assize; that is, that the case has already been brought to proof, and cannot be tried again. If this be truly the fact, the accused is entitled to claim exemption from further trial (6). But the previous trial must have Previous trial 1 Hume ii. 143, 144, and cases of Simpson and Caldwell there, and cases of Hunter: Lyall: Essen: Warrand: Smith: and Campbell or Bruce in note 2 and *.-Alison i. 659. 2 Act 20 and 21 Vict. 71, § 87.The following instances (besides those referred to in Hume ii. 143, 144, and in Alison i. 660 and Bell's Notes 4), may be referred to, of a plea of insanity in bar of trial being raised. Adam Sliming or Sliman, H.C., March 15th 1844; 2 Broun 138.-Euphemia Lees, Jedburgh, Sept. 18th 1845; 2 Broun 484.Peter Peanver, H.C., Nov. 16th 1850; J. Shaw, 462.-Thos. or Alex. Smith or Frizzard or Tizzard, H.C., July 19th 1858; 3 Irv. 167.-Johannis Manolatos alias Jean Mar "Tholed an rato alias Mayatos, H.C., April 6th 3 Alison i. 659, 660.-John War- 4 Longmuir v. Baxter, H.C., Nov. 29th 1858; 3 Irv. 287 and 31 S. J. 33. 5 Geo. Fleming, Dundee, Sept. 13th 1866; 5 Irv. 289 and 39 S.J. 1 and 2 S.L.R. 271. 6 Hume ii. 465, 466, and case of Hannah in note 1.-Alison ii. 615, 616.-Jas. Watt, H.C., Feb. 16th 1824; Shaw 113.-Rob. Hosie and others, H.C., May 15th 1837; 1 Swin. 507 and Bell's Notes 302. assize. regular and for same act. PLEAS IN BAR. New offence emerging bar's plea of tholed. Trial stopped by unforeseen accident. been regular (1), and must have been for the same crime, depending upon the same evidence, and not for what is truly another crime, though having a semblance of connection with the offence originally charged (2). On the other hand, the prosecutor cannot evade the objection of res judicata, by merely calling the same facts by a different name (3). If after the previous trial an event has occurred, which changes the character of the offence (as for example where a trial for assault has taken place, and the party who was assaulted dies), the plea of res judicata will not be listened to in bar of a trial for murder or culpable homicide (4). Lastly, if the previous trial was stopped by some unforeseen accident, such as the illness of the juryman (5), or of the accused (6), or proved to be a nullity Sarah Anderson or Fraser and Jas. 1 Hume ii. 468, 469, and cases of 2 Alison ii. 617, and case of Paterson there.-Galloway v. Somerville, Glasgow, Oct. 5th 1863; 4 Irv. 444 and 36 S.J. 185.-Glen v. Colquhoun and others, Glasgow, Oct. 6th 1865; 5 Irv. 203. 3 Hume ii. 466.-Alison ii. 615, 616. 4 John M'Neill, Perth, April 21st 1826; Shaw 162.-Isabella Cobb or Fairweather, Perth, April 14th, June 6th, and Nov. 21st 1836; 1 Swin. 176, 227 and 354, and Bell's Notes 299.-John Stevens, Glasgow, Jan. 11th 1850; J. Shaw, 287. -Jas. Stewart, Ayr, Sept. 11th 1866; 5 Irv. 310 and 2 S.L.R. 276. -These cases over-rule John Robertson, Glasgow, May 5th 1832; 5 Deas and Anderson 261 and Alison ii. 616. 5 Mary Elder or Smith, H.C., Feb. 5th and 12th 1827; Syme 71 and 76 and Shaw 176.- Margaret Pringle, H.C., Nov. 11th 1830; Shaw 235 and Bell's Notes 300.Jean Grant and others, H.C., July 12th 1838; 2 Swin. 165 and Bell's Notes 295.-John Leckie, Jan. 4th 1841; Bell's Notes 295.-Donald Ross, Inverness, Sept. 29th 1842; 1 Broun 434 and Bell's Notes 295.Hugh M'Namara, H.C., July 24th 1848; Ark. 521.-Elizabeth Leman or Wilson, H.C., Jan. 31st 1852; 1 Irv. 144. (In these last three cases a single juryman was balloted to fill the place of the juryman who was taken ill).-Geo. Jackson, H.C., Jan. 17th 1854; 1 Irv. 347.-Will. Smith, H.C., Dec. 22d 1853, and April 12th, 13th, 14th 1854; 1 Irv. 378. 6 Agnes Chambers or Macqueen and Helen Henderson, H.C., July 25th 1849; J. Shaw 252.-See also Marjory Macintyre, and Marjory Lennox or Macintyre, Glasgow, Sept. 25th 1829; Bell's Notes 300. in consequence of some defect for which the prosecutor PLEAS IN BAR. was not responsible, such as a person having personated a juryman or the like, the plea of res judicata will not be sustained (1). prosecutor. to depone, can after. measure of witness called There is one other plea in bar of trial, viz., indemnity Bargain with guaranteed by the prosecutor. If the public prosecutor call a witness, and require the judge to caution him, and Socius called on to inform him that what he says cannot be used against not be tried him, then if he give evidence he cannot be prosecuted for the offence in reference to which he depones. And the libel in support of which he is called is the mea-Libel the sure of his indemnity, even though part of it have not indemnity. been proceeded with (2). The question whether the same result follows where there is no warning and no Is every agreement between the prosecutor and the witness, is by prosecutor one about which there is a difference of opinion (3). The subject matter of the first trial must be substantially the same as that in which the objection is raised (4). And no unauthorised promise by a private Promise by person, or by an inferior official, will preclude the persons does public prosecutor from trying the person to whom the promise is made (5). Nor does the indemnity take effect until the party is actually used as a witness (6). exempt? unauthorised not bar trial. It is not a good objection to proceedings that the Case of outlaw. PLEAS IN BAR. RELEVANCY. pugn libel. accused is an outlaw, the sentence of outlawry being de jure re-called by the accused being arraigned at the bar (1), and it being the interest of the accused to apply to be reponed before the trial, if he thinks himself prejudiced by the fact (2), as the Court will always repone in such circumstances (3). No plea in bar may be stated at a second diet of compearance, except in respect of circumstances that have occurred since the first diet, or where such plea has been reserved by the judge (4). If a plea in bar of trial be sustained, not being of such a nature as to exclude further proceedings against the accused, the Court will at the instance of the prosecutor, grant a new warrant of commitment (5). If no plea in bar of trial be sustained, the accused's objections to the relevancy of the libel are heard, and, if not sustained, an interlocutor of relevancy is proCourt may im- nounced (6). But if the Court consider the libel objectionable, they impugn it, although the prisoner's Objections must counsel decline to do so (7). All objections to relevancy must be stated at the first diet where there are two diets of compearance (8). be stated at first diet. Productions not t be looked at. Striking out passages. It is not competent to look at the productions in considering the relevancy (9). Where an objection to relevancy is sustained, it is sometimes obviated by 1 Arch. Miller and Susan Brown or Miller, H.C., Jan. 3d 1850; J. Shaw 288. 2 Jas. Wilson, H.C., May 31st 1830; Shaw 231 and Bell's Notes 228. 3 Michael Hinchy, H.C., July 18th and 20th 1864; 4 Irv. 559. 4 Act 31 and 32 Vict. c. 95, § 7. 5 Geo. Mackay, H.C., March 26th 6 Act 11 and 12 Vict. c. 79 § 9. July 14th 1832; Bell's Notes 234. -Geo. Brown, H. C., July 3d 1839; 2 Swin. 394 and Bell's Notes 234, (Lord Justice Clerk Boyle's opinion.) -Thos. Brown Harper, Jan. 8th 1840; Bell's Notes 234. Sam. Michael, H.C., Dec. 26th 1842; 1 Broun 472.-John Ray, H.C., May 16th 1854; 1 Irv. 472 (Lord Justice General Macneil's opinion). 8 Act 31 and 32 Vict. c. 95. § 7. -Smith v. Lothian, H.C., March 21st 1862; 4 Irv. 170 and 34 S. J. 467. 9 Jas. Paton, Ayr, Sept. 22d 1858; 3 Irv. 208 (Lord Ardmillan's opinion). |