Slike strani


moving deser

Desertion of # libel."


assize sworn.


Court (1). 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 Prosecutor 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 prose-
cutor from raising a new libel (5). The right to move

a desertion pro loco et tempore, does not cease until an competent till

assize has been sworn (6).

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
INTERPRETER. 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 insanity.

present insanity. The Court in such cases allows a

1 Hume ii. 276, and case of gow, May 5th 1848 ; Ark. 481.-
Archibald there, and

John Martin, H.C., July 22d 1858 ;
Macphie : and Edgar in note 1.- 3 Irv. 177.
Alison ii. 98.-ii. 355, 356.-John 7 Act 1587 c. 91.-Hume ii. 283,
Ross and others, Glasgow, May 5th 284.-- Alison ii. 370, 371.-John
1848 ; Ark. 481 (Lord Mackenzie's Hannah and Hugh Higgins, Dum-
opinion).-Hannah M.Atamney and fries, Sept. 17th 1836 ; 1 Swin. 289.
Henry or Jolin M'Atamney, Dun- In this case, as no counsel appeared
dee, April 6th 1867 ; 5 Irv. 363 and at Circuit, the Court appointed the
39 S.J. 386 and 4 S.L.R. 1.

Sheriffs to defend.
2 Rob. Forsyth and others, Stir- 8 Hume i. 45, case of Campbell in
ling, April 27th 1866; Irv. 249. note 2.-David Smith, Perth, April

3 Edward Tabram, H.C., May 28th 1841 ; Bell's Notes 231.-Don-
23d 1872 ; 2 Couper 259 and 44 ald Turner, Glasgow, Sept. 25th
S.J. 416 and 9 S.L.R. 469.

1861 ; 4 Irv. 93.
4 Hume ii. 277, and case of Leslie 9 Allan Maclean, Dec. 1st 1828 ;
there.--Alison ii. 357.

Shaw 202 and Bell's Notes 231.5 Stewart v. Mackenzie, Inver- Murdo Mackay and others, Jan. 31st ness, April 29th 1857 ; 2 Irv. 616

and Feb. 21st 1831; Bell's Notes and 29 S.J. 345.

231. 7 John Ross and others, Glas.





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).


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 or 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;" Tholed an 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


regular and for same act.

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

rato alias Mayatos, H.C., April 6th
1864; 4 Irv. 485.-Thos. Arnot,
H.C., June 6th 1864; 4 Irv. 529.

3 Alison i. 659, 660.-John War-
rand, H.C., Jan. 17th 1825; Shaw
130.-Will. Douglas, H.C., May
28th 1827; Shaw 192.-John Bar-
clay, H.C., Feb. 4th 1833; Bell's
Notes 4.

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.


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.
Fraser, H.C., July 12th 1852; 1
Irv. 66 and 24 S. J. 614.-Dorward
v. Mackay, H.C., Jan. 29th 1870; 1
Couper 392 and 42 S.J. 305 and 7
S.L.R. 265.

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.

1 Hume ii. 468, 469, and cases of Wallace and Macrachan and others there. Alison ii. 618.

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.

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).


to depone, cannot be tried after.

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 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

measure of

witness called


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


not bar trial.

does the indemnity
actually used as a

the promise is made (5). Nor take effect until the party is witness (6).

It is not a good objection to proceedings that the case of outlaw.

1 Hume ii. 469 and case of Menzies there -Alison ii. 618.-John Sharp, H.C., Aug. 23d 1820; Shaw 19. The case of a minor being on the jury is now only illustrative, as such a fact could not now vitiate a trial, it being incompetent to make such an objection after the jury are sworn. Act 6 Geo. IV. c. 22 § 16. See Timothy Glennan and Chas. Bradly, H.C., March 15th 1839; 2 S.J. 382.

2 Alison ii. 453, 454.-Hare v. Wilson, H.C., Jan. 26th and Feb. 2d 1829; Shaw 205 and Syme 373 and Bell's Notes 260 and 1 S. J. 48 and 62.

3 Hume ii. 367, and case of
Smith and Brodie there.-See 4
Irv. Appx. Debate in House of

4 Pet. Jefferson and Geo. Forbes,
Perth, April 22d 1848; Ark.


5 Arch. Miller and Susan Brown or Miller, H.C., Jan. 3d 1850; J. Shaw 288.-Alison ii. 454, 455, contra.

6 Andrew Peebles and David Whitehead, Glasgow, Dec. 1833; Bell's Notes 261.-John Macdonald and others, Dec. 7th 1837; Bell's Notes 261.




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).

It is not competent to look at the productions in Striking out considering the relevancy (9). Where an objection to

relevancy is sustained, it is sometimes obviated by

1 Arch. Miller and Susan Brown July 14th 1832 ; Bell's Notes 234. or Miller, H.C., Jan. 3d 1850 ; J. -Geo. Brown, H.C., July 3d 1839; Shaw 288.

2 Swin. 394 and Bell's Notes 234, 2 Jas. Wilson, H.C., May 31st (Lord Justice Clerk Boyle's opinion.) 1830; Shaw 231 and Bell's Notes -Thos. Brown Harper, Jan. 8th 228.

1840 ; Bell's Notes 234. Sam. 3 Michael Hinchy, H.C., July

Michael, H.C., Dec. 26th 1842; 1 18th and 20th 1864 ; 4 Irv. 559.

Broun 472.-John Ray, H.C., May 4 Act 31 and 32 Vict. c. 95,

16th 1854 ; 1 Irv. 472 (Lord Justice

General Macneil's opinion). $7.

8 Act 31 and 32 Vict. c. 95. § 7. 5 Geo. Mackay, H.C., March 26th

-Smith v. Lothian, H.C., March 1873; 2 Couper 413.

21st 1862 ; 4 Irv. 170 and 34 S. J. 6 Act 11 and 12 Vict. c. 79 $ 9. 467.

7 Richard Smith, July 16th 1829; 9 Jas. Paton, Ayr, Sept. 22d Bell's Notes 234.-Jas. M.Kechnie, 1858; 3 Irv. 208 (Lord Ardmillan's Stirling, June 18th 1832, and H.C., opinion).

be stated at first diet.

Productions not t be looked at.


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