JURY. After assize sworn, no intercourse with others permitted. Corrupt communication with jury. Irregularity not corrupt. cutor to move a desertion of the diet (1), and the right of the accused to state objections to variations between the record and the service copy of the libel, or that a full copy has not been served (2), or to complain that he has been misled by the designation of a witness (3), or that a production has not been lodged in the Clerk's hands in due time (4), or to the whole libel including the charge of previous conviction being proved against him (5), ceases absolutely. When the jury have been sworn, no private communication may take place between them and any person, nor may they leave Court except under charge of an officer until they have delivered their verdict or been discharged by the Court (6). But if at an early stage of the case, a juryman is taken ill, it is competent, with the consent of the accused, to substitute another juryman in his place, and reswear the whole jury, the witnesses deponing again to what had been taken down as their evidence (7). Any corrupt communication with the jury by the prosecutor, or any other person, to the prejudice of the accused, will entitle him to absolvitor (8). But the bare fact that a juryman has been absent for a few minutes, or has even had conversation with others before final enclosure, will not annul the proceedings, and the Court will investigate the matter so as to decide whether the irregularity have been of such high degree, as to compel them to do so (9). 1 Hume ii. 305.-Will. Paterson and David Auchinclose, Jan. 28th 1828; Syme, 312. 2 Hume ii. 249, 250.- Will. Wright, H.C., Nov. 23d 1835; 1 Swin. 6 and Bell's Notes 225. 3 Act 9 Geo. IV. c 29, § 11. 4 Ann Kerr and others, H.C., March 2d or 3d 1857; 2 Irv. 608 and 29 S.J. 274.-Alex. Watt, H.C., March 21st 1859; 3 Irv. 389. 5 Will. Cox, Dundee, April 23d 1872; 2 Couper 229 and 44 S. J. 380 and 9 S. L. R. 451. 6 Hume ii. 417.-Alison ii. 631, 632. 7 Denis Lundie, H.C., June 22d 1868; 1 Couper, 86. 8 Hume ii. 404, referring to Act 1587, c. 91. 9 Hume ii. 417, 418, and cases of M'Naughton: Bishop: Nairne: Mac DEFENCE. The first proceeding after the jury have been sworn SPECIAL is to read to them any special defence lodged. The prosecutor then proceeds to lead his proof. short statement of the rules applicable to proof is that can be given here A GENERAL RULES all AS TO PROOF. witnesses First, as regards parole proof, many disabilities of Disabilities of witnesses are now abolished. Thus infamy, near rela- abolished. tionship, agency, defective citation, non-citation, ultroneousness, &c., are no longer pleadable to exclude witnesses (1). Chidren, however young, may be examined if they have sufficient intelligence to understand the obligation to speak the truth (2), and of this it is the duty of the children. judge to satisfy himself by examination, and also, if he see fit, by the evidence of others (3). In some cases it has been held enough, and in others not enough, that the child knew he should tell the truth. form ther opinion on the manner as well as on the What knowwords of the child (4). There is no fixed limit as to requisite. age. A child of three years old was in one case rejected; but the case was special (5); and in a later case a child of three-and-half years old was examined, No limit as ivor and Macallum: and Lyle there. -Alison ii. 632, 633.-Rob. Macdonald, Invemess, Sept. 26th 1821; Shaw, 43. 1 Act 9 Geo. IV. c. 29 § 10.-11 Geo. IV. and 1 Will. IV. c. 37 § 9.3 and 4 Vict. c. 59-15 Vict. c. 27. 2 Dickson ii. § 1672.-Hume ii. 341.-Alison ii. 433.-John H. Pirie and others, Aberdeen, April 19th, 1830 Bell's Notes 246.-Matthew Baillie, July 16th 1830; Bell's Notes 246.-John Buchan, Nov. 25th 1833; Bell's Notes 246.-Joseph Hempson, Jan. 9th 1839; Bell's Notes 247. 3 Dickson ii. § 1676. 4 The following cases illustrate the point: John M'Carter, Nov. 14th 1831; Bell's Notes 247.-Wal Judges ter M'Beth, H.C., March 4th 1867; 5 Irv. 353. In these cases the evi- 5 John Thompson alias Peter ledge by child to age. AS TO PROOF. Age at trial is considered. GENERAL RULES after proof of what it had said at the time of the offence (1). The age at the time of the trial is to be considered, rather than its age at the date of the crime, unless it was then very young and a long interval has elapsed (2). Spouse not competent except where injured party. Injured spouse cannot decline, Spouses cannot give evidence for or against each other, except where the spouse is the injured party (3). Where the offence was committed against a wife and child, it was held that the wife could be examined as to the injury to herself, but not as to that to the chill (4). But a witness cannot be excluded on this plea, unless there be proof of a true marriage (5). An injured spouse cannot decline to give evidence (6). The injury need not be bodily. Where a husband was charged with falsely accusing his wife of a crime, she was held admissible (7). It has not been decided whether a spouse injured by forgery, committed by the other, is a competent First spouse in witness (8). But in bigamy cases the injured spouse of the first marriage is inadmissible (9). Where in a Injury need not be bodily. bigamy case. 1 Janet Millar, Ayr, April 6th 1870; 1 Couper 430. 2 Dickson ii. § 1675.-Hume ii. 342.-Alison ii. 435. 3 Dickson ii. §§ 1716, 1717.Hume ii. 349, and case of Goldie in note 2--ii. 400, case of Smith and Stephenson in note 2.-Alison ii. 461.ii. 620. In one case where the husband killed the seducer of his wife detected in the act of adultery, he was allowed to examine her to prove that he had caught them in the act. Hume ii. 400, 401, case of Christie there. 4 George Loughton, March 14th 1831; Bell's Notes 252. There might be cases in which such a distinction would be almost impossible, e.g., Hugh Mitchell, H.C., Nov. 7th 1858; 2 Irv. 488 where the accused was charged with assaulting his wife, and by his violence causing her to squeeze to death the child in her arms. 5 Henry Reid, Ayr, April 11th 1873; 2 Couper 415 and 45 S. J. 504. In this case the prisoner's statement in his declaration, that a woman was not his wife, was held good evidence against his objection to her examination on the ground that she was his wife. 66 6 Dickson ii. § 1723.-Alison ii. 462, states only that "he suffering 'party may be allowed to give evi"dence."-Will. Commelin, Dumfries, Sept. 17th 1836; 1 Swin. 291 and Bell's Notes 252. 7 Elliot Millar, Jedburgh, Sept. 17th 1847; Ark. 355. 8 Alex. Fegan and Elizabeth Mackenzie or Hyde, Glasgow, Sept. 15th 1849; J. Shaw 261. 9 Dickson ii. § 1717.-Hume ii. 349, case of Rodger in note 3.-Alison i. 540,541.-ii. 462.-John Armstrong, H.C., July 15th 1844; 2 Broun 251. AS TO PROOF. depone to point? case of bigamy the Crown was about to prove the GENERAL RULES statements of a person alleged to be dead, and proposed to prove the death by the accused's first husband, on the ground that this was merely an incidental can spouse point, the evidence was refused, but with no decision incidental as to its competency (1). But the grounds on which the rule of law is based, would seem sufficient to exclude the spouse even on such a point, in a case where he had so great an interest. objection to a witness that he (or she) is the spouse of Spouse of the injured party (2). The children or parents of the Children of accused cannot decline to depone (3), and his pupil children are competent witnesses (4). It is no injured party. accused. A person wholly insane or idiotic at the date of the Insanity. offence or at the time of the trial is inadmissible. It sufficient. is not sufficient that he has been insane, unless it was very recently before the offence, or between the offence and the trial (5). It will not absolutely exclude a Delusions not witness that he has delusions, however serious, unless these relate to the subject matter of the trial. In other cases, the defect must be such that the witness is non compos mentis-one who cannot understand the nature of an oath, or whose memory cannot be relied on at all. credibility. All other defects only affect credibility (6). They only affect Accordingly it is not sufficient to exclude a witness that he is a patient in a lunatic asylum (7). But Incapacity to persons so weak in intellect that they cannot take an or idea of a 1 Ann Barr or Paterson, Glasgow, Dec. 28th 1860; 3 Irv. 649. 2 Hume ii. 343, cases of Redpath: and Brown and Wilson in note 2. 3 Dickson § 1720.-Act 3 and 4 Vict. c. 59 § 1. 4 Mary A. Cairns and others, H.C., Feb. 15th 1841; 2 Swin. 531 and Bell's Notes 249.-See also Alison Punton, H.C., Nov. 6th 1841; Bell's Notes 250. Formerly they were not. Hume ii. 346, cases of Cunningham: Blinkhorn: and Devan or Divine in note 3. 5 Dickson ii. § 1682.-Hume ii. 340.-Alison ii. 435, 436.-Thos. Meldrum, H.C., Dec. 11th 1826; Syme 30.-Jas. Sheriff and John Mitchell, Aberdeen, April 27th 1866; 5 Irv. 226 and 38 S. J. 376. 6 Dickson ii. § 1683; Hume ii. 340 and case of Love and other there. Thos. Meldrum, H.C., Dec. 11th 1826; Syme 30. 7 Case of Sheriff and Mitchel supra. understand oath, future state. AS TO PROOF. GENERAL RULES Oath (1) or have any notion of a future state, are inadmissible (2). And in one case where the witness had lost the power of speech, and could only indicate an affirmative or negative answer to the questions put to him, the alleged cause of the infirmity being paralysis, the evidence was rejected, there being no proof that the cause was paralysis, or that if it was, that it had not affected the mind (3). Mere defective memory from age will not exclude a witness, unless he be non compos mentis (4). Defective memory from age. Dumb witnesses. Deaf and dumb witnesses are admissible, although they have no education, and can only converse by gestures (5), provided they know right from wrong, and are aware of the existence of a God, and of the evil of telling what is untrue (6). In one case, a deaf and dumb witness was examined, though she had no What education idea of a Supreme Being, the witnesses deponing that requisite. Atheism. she knew right from wrong, but her mother stating that she could not say whether the girl knew that it was wrong to tell a lie (7). This case goes, it is considered, rather too far. In a previous case, a deaf witness who was judged to be "naturally honest and "trustworthy," but unable to comprehend the obligation to speak the truth, was rejected (8). A witness who does not believe in a God who forbids and punishes falsehood, is inadmissible. The law on this point is uncertain, particularly as to the 1 John Murray, Inverness, May 2d 1866; 5 Irv. 232 and 38 S. J. 377. 2 Duncan M'Gillivray, Nov. 10th 1830; Bell's Notes 264.-Hugh M'Namara, H.C., July 24th 1848; Ark. 521. 3 Thos. O'Neil and Daniel Gollan, Glasgow, April 29th 1858; 3 Irv. 93. 4 Dickson ii. § 1681. 5 Margaret Farquhar and others, Jan. 8th 1839; Bell's Notes 245. John S. Montgomery, Aberdeen, Sept. 25th 1855; 2 Irv. 222.-Geo. Howieson, Glasgow, Sept. 28th 1871; 2 Couper 153 and 44 S. J. 6 and 9 S. L. R., 70. 6 Dickson ii. § 1686.-Alison ii. 436, 437. 7 Edward Rice, Glasgow, April 21st 1864; 4 Irv. 493 and 36 S. J. 556. 8 Jas. White, Stirling, April 27th 1842; 1 Broun 228 and Bell's Notes 246. |