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allowing the prosecutor to strike out the words. this will not be permitted where the effect of the alteration is to constitute a truly different charge (1). The law is not clearly fixed as to the competency of No alteration alterations being made without the consent of the charge. accused (2). In some cases, the Court allowed an al- Does striking teration although the accused objected (3). In a consent? later case, though the Court refused to permit the alteration proposed, it was stated that in doing so they did not decide the general question (4). More recently, the Court have expressed opinions against the practice of striking out passages (5), and have refused to do so except of consent of the accused (6).


The libel having been found relevant, the accused, SEPARATION where there is more than one charge, may move the Court to order the counts to be tried separately, it being in the discretion of the Court to grant or refuse the motion (7). Any accumulation of charges which may tend to injustice will be checked (8).

1 John Spiers and others, H.C., March 25th 1836; 1 Swin. 163 and Bell's Notes 232.

2 Hume ii. 280.-Alison ii. 365, 366. The statement of the law by Alison is undoubtedly much too broad.

3 Hume ii. 280, case of Murphy and others in note a. - Edward M'Caffer and others, Glasgow, Sept. 23d 1823; Shaw 165.-Daniel Mackenzie and others, Glasgow, May 4th 1839; 2 Swin. 354 and Bell's Notes 232.

4 Malcolm M'Gregor, and others, Perth, April 28th 1842; 1 Broun 331.

5 John Kermath, H.C., June 4th 1860; 3 Irv. 602.-Dawson v. Maclennan, H.C., April 2d 1863; 4 Irv. 357 and 35 S. J. 515 (Lord Justice General Macneil's opinion).

6 Henry V. Jardine, H.C., July 19th 1858; 3 Irv. 173.-Will. Dudley, H.C., Feb. 15th 1864; 4 Irv 468 and 36 S. J. 332.-See also Mitchell v. Campbell, H.C., Jan. 5th

1863; 4 Irv. 257 and 35 S. J. 159.
-But see observation by Lord
Cowan in Geo. Richardson and
Sam. Davidson, Dundee, Sept. 13th
1866; 5 Irv. 296 and 2 S. L. R. 271.
-His Lordship's observations are
not quoted in the S. J., the report
of which is in Volume xxxix. p. 3.

7 Hume ii. 172, 173, 174, and
cases of Young and Buchanan there.
-Alison ii. 238, 239.-Will. Burke
and Helen Macdougal, H.C., Dec.
24th 1828; Shaw 203 and Syme
345 and Bell's Notes 181.-Will.
Turner and John Morison, July
17th 1833; Bell's Notes 183.-John
Thompson alias Peter Walker,
Glasgow, Dec. 22d, 23d, 24th 1857;
2 Irv. 747 (Lord Justice-Clerk
Hope's charge).-Elizabeth Duncan
and Ann Brechin, Perth, Sept. 29th
1862; 4 Irv. 206 and 35 S. J. 51.--
Edward W. Pritchard, H.C.,July 3d
to 7th 1865; 5 Irv. 88.

8 Jas. Gibson and others, Dundee, Sept. 5th 1871; 2 Couper 128.



Where more than one person is accused in the same libel, the Court will, on cause shown (1), or if it appear that it will be oppressive to send all the accused to trial at once (2), order them to be tried separately. But it is not a sufficient ground per se for separating trials, that one accused proposes to examine the other as a witness (3).

When the preliminary questions have been disposed of, the accused is called on to plead. Every plea which is not a direct and unambiguous admission, is beld a plea of “Not Guilty.” The same is held if the prisoner refuses to plead, or remains silent (+). And where the accused was so deaf that he could not be communicated with except with the greatest difficulty, the Court would not receive any other plea than one of not guilty (5). The plea is taken both to the charge and to any charge of previous conviction that may be in the libel (6).

Ambiguous plea held not guilty.

Accused remaining silent or deaf.

1 Hume ii. 175, 176, and cases of Will. Cleary and others, H.C., Jan. Macnicol and others : and Stirling 26th 1846 ; Ark. 7. and others there. --Alison ii. 240 to 3 Jane Macpherson or Dempster 244, and cases of Kettle and others: and others, H.C., Jan. 13th 1862 ; and Young and others there. Rob. 4 Irv. 143 and 34 S. J. 140.--Adam Surrage and others, H.C., Sept. Coupland and Will. Beattie, Dum7th 1820; Shaw 22.-James Bar- fries, April 14th 1863 ; 4 Iry. 370 net and others, June 10th 1831; and 35 S. J. 454. (The motion for Shaw 245 and Bell's Notes 182.-- separation of trials is not mentioned (Mr Bell places the name of Kettle in the rubric).-See also Peter Lunfirst in this case). —Felix Higgins die and Will. Heron, Perth, April and others, March 4th 1833 ; Bell's 1833 ; Bell's Notes 182.--Adam Notes 182 and 5 S. J. 317.-Thos. Baxter and others, H.C., March 4th K. Rowbotham and others, H.C., 1867 ; 5 lrv. 351. -M'Garth and Mar. 15th to 19th 1855 ; 2 Irv. 89 others, Bathgate, H.C., May 14th and 27 S. J. 338.-Rob. Hawton and and 15th 1869 ; 1 Couper 260 and Will. G. Parker, H.C., July 15th

41 S. J. 442 and 6 S. L. R. 494. 1861; 4 Irv. 58 and 33 S. J. 646.--- 4 Jas. Currie, Ayr, Sept. 1833 ; Margaret M'Ibeer and Andrew Mul- Bell's Notes 231. - Alex. Cooper, len, Glasgow, Dec. 30th 1869; 1 Glasgow, Sept. 23d 1843; 1 Broun Couper 390.


6 Angus Hutton, Inverness, April 2 Hume ii. 179, and cases of 1840; Bell's Notes 231. Elliot and others : Myles : and 6 See the cases of Pet. Davidson Moubray and others there.-Ter- and others, H.C., May 27th 1872 ; 2 ence Clancy and others, Glasgow, Couper 278 and Jas. Kelly, H.C., May 3d 1834; Bell's Notes 183.- June 28th 1872; 2 Couper 310.

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If the accused pleads guilty," his plea is recorded PLEADING. and signed by him, or his procurator for him, if he Plea of guilty. cannot write. If he plead only to a part of the charge, or of several charges, the prosecutor must state whether he is willing that the plea be accepted. The prosecutor Prosecutor not need not accept a plea of guilty, but may proceed after it has been recorded to lead evidence (1). If he agree to accept the plea, he may move for sentence, and the Court pronounce it (2), unless they see reason to postpone sentence in order to consider what the punishment should be. If there be more than one accused, One accused pleading guilty. and only one pleads guilty, the trial generally proceeds without the prosecutor moving for sentence until the case of the other accused is disposed of.

accepting plea.

character after

After a prisoner has pled guilty, he may bring evi- Evidence to dence of character, either by certificates or by wit- plea of guilty. nesses (3), but he is not entitled to prove that he had no felonious intention, or any similar fact which is truly matter of defence (4). It is probable that the prosecutor would be found entitled to lead counter Counter evidence evidence to that led by the accused in support of character (5). The Court also allow the accused to be Statement in heard in mitigation of punishment.

to character.


Where the plea is "not guilty," or is not accepted, JURY. the accused, if the case be in the Supreme Court, is at once remitted to knowledge of an assize (6), unless the citation was to two diets of compearance. In that case the Court, on the motion of the Lord Advocate or his Deputy, may remit to the next Circuit competent to try the case, or ordain the accused to com

1 David Haggart and Will. Forrest, July 12th 1820; Shaw 16.Jas. Gordon or Garden and Will. Gordon or Garden, H. C., July 16th 1827; Syme 245.-David Peter and John Smith, H.C., Feb. 19th 1840; 2 Swin. 492 and Bell's Notes 233.Will. Brash and Rob. White, H.C., March 17th 1840; 2 Swin. 500.

2 Act 9 Geo. IV. c. 29 § 14.

3 This is matter of daily practice. The rules as to such evidence will be noticed in treating of proof.

4 Jas. Johnston, H.C., July 24th 1848; Ark. 528.

5 See Jas. Nimmo and Jas. Forsyth, H.C., March 13th 1839; 2 Swin. 388.

6 Act 11 and 12 Vict. c. 70, § 9.


Remit to assize unnecessary in Sheriff Court.

pear in the High Court, the time intervening in both cases being not less than ten clear days (1), and the Court may ordain him to be conveyed to such prison as they may see fit in the meantime, without prejudice to his right to bail or letters of intimation under the Act 1701, c. 6 (2). If the case be in the SheriffCourt, proceedings are stayed till the second diet. At a second diet, the accused is again called on to plead, and if he persevere in pleading "not guilty," a jury is balloted. In the Sheriff-Court, an interlocutor remitting him to the knowledge of an assize is not Balloting jury. necessary (3). The jury is balloted by the Clerk of the Court from the list which contains the names of special and common jurors, the common being in the proportion of two-thirds of the whole number (4). The accused cannot object that a full jury has not been summoned (5), or that all the jurors summoned are not present (6), or object to go to trial because of a blunder as to a name, or a variation between the record and the copy of the jury list served upon him. The prosecutor and each accused has five peremptory challenges, of which not more than two may be challenges of special jurors (7). A peremptory

Delay to second diet.

Special and


Full jury not summoned or present.

Peremptory challenge

Made when balloted.

1 Act 31 and 32 Vict. c. 95 § 4.
2 Ibid. § 8.-See as to bail John
Lawrence, H.C., Jan. 15th 1872; 2
Couper 168.

3 Act 16 and 17 Vict. c. 80, § 35.
-Christie v. Simpson, H.C., May
28th 1856; 2 Irv. 432 and 26 S.J.

4 Without entering at length into the question of qualification of jurors, &c., it may be mentioned that the number of jurymen to be summoned is regulated by the Court, one list signed by a judge being sufficient for each Circuit Court, and one list for each meeting of the High Court, although there may be more cases than one set down for trial. See Acts 6 Geo. IV.

c. 22, § 15.-11 and 12 Vict. c. 79, §§ 4, 5.-See also Hume ii. 308 et seq. passim.-Alison ii. 376 et seq. passim.

5 Hume ii. 306, and cases of Hardie and Carruthers there. But see Maculloch and others, H.C., Jan. 23d 1832; 5 Deas and Anderson 52 and 4 S.J., 273 where trials were adjourned, all the jurors who had been cited from two particular places having been countermanded, owing to the prevalence of cholera. Bell apparently refers to the same case on p. 237 of his Notes. He gives the name of Neill.

6 Hume ii. 306, cases of Wylie and Watson there.

7 Act 6 Geo. IV. c. 22, § 16.

challenge must be made at once when the juryman is Jury. balloted (1). Cause must be shown for challenge of Farther chal

lenges on more jurors than two special and three common. No cause shewn. rule can be laid down as to what is a sufficient ground for rejecting a juryman. But the following are mentioned in the text books :-Infamy, outlawry, insanity, deafness and dumbness, blindness, minority, enmity, relationship (2). The objection that a juryman is not Non qualificaqualified to serve can only be decided by his oath (3). Five special jurors and ten common jurors are balloted. Proportion of If the accused be a landed man, he is entitled to have common. a majority of landed men on the jury (4). A foreigner Landed jury. cannot claim that all or any of the jurors be foreigners Foreigner. (5). The jury being balloted, are sworn by the Clerk of Court (6). Of consent of prosecutor and accused, a Swearing Jury. jury which has been balloted for a previous case may be re-sworn to try another case (7). But it is not competent to take some of the old jury, and ballot a sufficient number to make up fifteen. The whole of the previous jury must be taken, or a new ballot for the whole fifteen must take place (8). If the judge is Affirmation insatisfied that a juror has conscientious objections to taking an oath, he may permit him to make a solemn affirmation (9) Whenever the jury are sworn, the right of the prose


Swearing of

jury bars 1 Act 6 Geo. IV. c. 22, § 16.- 8th and 13th 1858; 3 Irv. 3 and 30

objections. Dawson v. Maclennan, H.C., April S.J. 309.- Such an indulgence 2d 1863 ; 4 Irv, 357 and 35 S.J. 515. seems to have been allowed in early One case seems to be rather counter times. In one case it is recorded to this rule, John Maclean, Perth, that the accused being an EnglishOct. 3d 1836; 1 Swin. 278 and Bell's man, was allowed a jury “consistNotes 238.

ing mostly of Englishmen : 2 Hume ii. 310, 311.-Alison ii. Richard Rumbold, June 28th 1865; 385, 386.

Fountainhall, 365. This matter 3 Act 6 Geo. IV. c. 22, $ 16. is finally settled by the Act 33 Vict.

4 Hume ii. 311.- Alison ii. 386, c. 14 & 5. 387.–Donald Kennedy, H.C., Dec. 6 Hume ii. 316.- Alison ii. 390, 3d 1838; 2 Swin. 213 and Bell's Notes 238.—David R. Williamson, 7 Act 6 Geo. IV. c. 22, § 18. H.C., June 13th 1853 ; 1 Irv. 244 8 Daniel or Donald Stewart, note.

March 13th 1829 ; Bell's Notes 237. 6 Frederick Itansen, H.C., Feb. 9 Act 31 and 32 Vict. c. 39.


desertion or


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