Slike strani


PROOF BY PRO- that the first was read when the second was emitted, the presumption being that the procedure was regular Must all decla- (1). The prosecutor is bound to produce all the decla

rations be produced?

rations (2). But the fact that the accused has emitted a previous declaration which is not produced, will not exclude that produced, if the previous one was not emitted before a magistrate (3). Where all are produced and some excluded on objection, the accused cannot object to the others being read (4). But where one of several is excluded, the accused, if the others are read, may insist upon the excluded one being read also, if so advised (5).

A declaration is evidence of its contents. Whether

D. evidence of


tent to modify?

Is parole compe- it can be challenged as to the accuracy of phrases or passages, and evidence brought in support of the objection, is a question about which difference of opinion prevails (6). A declaration is evidence only as regards the person who emits it (7), and is evidence against him, but not in his favour. The prosecutor is alone entitled to put them in evidence. The accused cannot demand that a declaration be read if the prosecutor objects (8), Although the declaration of a

D. within control of prosecutor.

D. of person insane.

1 Alex. Duncan and Sam. Hippesley, Aberdeen, Oct. 3d 1821; Shaw 45.

2 Hume ii. 326 case of Whyte in note 2.-Alison ii. 572-Thos. Loch, Inverness, April 21st 1837; 1 Swin. 494 and Bell's Notes 240.(The contrary was held in an early case, Hume ii. 326, case of Anderson in note 2).

3 Alison ii. 573, case of Johnston there.

4 Hume ii. 326 case of Stansfield in note 2.- Hume ii. 331 case of Mackechnie and M'Cormick in note 1.-Alison ii. 573 and cases of Brannan and Craw and Cruickshanks there.-Daniel Gilchrist and Angus M'Iver, Inverness, Sept. 1835; Bell's Notes 240.

5 Hume ii. 326 case of Stansfield

in note 2.-ii. 329, case of Wylie in note 2.-ii. 330, case of Steward with quotation from interlocutor in note 1.-Alison ii 573.

6 Dickson ii. § 1427.-Hume ii. 332. Alison ii. 576. Houston Cathie, Dec. 9th 1833; Bell's Notes 243. See also Burnett 493, case of MacNaught in note.

7 Dickson ii. § 1428.-Hume ii. 325, 326, 327. - Alison ii. 576, 577.-John Macallum and Will. Corner, H.C., July 22d 1853; 1 Irv. 259, Lord Justice General Macneill's charge.

8 Dickson ii. § 1428.--Alison ii. 577, case of M'Queen and Robson there.-Elizabeth Kennedy or Potts, Glasgow, Dec. 27th 1842; 1 Broun 497 (and another case in note) and Bell's Notes 285.


maniac is inadmissible as evidence, it is an element in PROOF BY PROtesting whether the accused was truly insane, and is generally read under reservation of the right to direct the jury at the close of the case that it is not evidence (1). If a person has been examined, but not D. as evidence in tried, his declaration may be used in a trial for perjury, in reference to committed at the trial of another person in reference to the same matter (2).

a case of perjury

same matter.

A declaration emitted by a person afterwards examined as a witness cannot be used in evidence by the accused (3).

a civil suit.

Where there has been a civil suit in reference to a Proceedings in matter which gives rise to a criminal charge, it is competent to produce the statements and declarations of the accused in the civil case (4). And where it was alleged that a note by the Lord Ordinary in a civil suit had led to the forgeries libelled, the note was allowed to be put in evidence (5). But extracts of Kirk-session kirk-session minutes bearing to contain confessions, are not admissible (6).


The written deposition of a person who is dead is admissible (7), whether the person were the party injured or not, if he would have been a competent witness (8), But it is not competent to use the 1 Alex. Milne, H.C., Feb. 9th, 10th, 11th, 1863; 4 Irv. 301 and 35 S.J. 470.

2 Alison i. 481.-Margaret Ross, Stirling, Sept. 3d 1836; 1 Swin. 297 and Bell's Notes 240.

3 Geo. Milne, Aberdeen, April 28th 1866; 5 Irv. 229.

4 Hume ii. 326, case of M'Iver and M'Callum there.-Alison ii. 557.-ii. 577.-Alex. Humphreys or Alexander, H.C., April 29th to May 3d 1839; 2 Swin. 356 and Bell's Notes 240.

5 Alex. Humphreys or Alexander, supra.

6 Alison Punton, H.C., Nov. 5th 1841; 2 Swin. 572 and Bell's Notes

283.-Will. Cuthbert and Isobel
Cuthbert, Perth, April 26th 1842;
1 Broun 311 and Bell's Notes 283.

7 Dickson ii. § 1965.-Hume ii. 407, and several cases in note 1.ii. 409, 410, and case of Downie there. Alison ii. 604.-ii. 623. — Jas. Gow, Nov. 11th 1831; Bell's Notes 291.-Thos. Hunter and others, H.C., Jan. 3d. to 11th 1838; Bell's Notes 291 and Swinton's Special Report.

8 M'Intosh, Aberdeen, April 18th 1822, mentioned erroneously in Alison ii. 516, as having occurred at Inverness; see 2 Irv. 175, note. -John Stewart, H.C., June 4th 1855; 2 Irv. 166 and 27 S.J. 408.


Deposition of a

Declaration of


PROOF BY PRO- declaration emitted by another person accused on the same charge, who has died before the trial (1). It is deceased person. not necessary that the deceased should believe himself dead co-accused. to be dying when he emits the deposition (2). Such depositions are generally taken by a magistrate, but a declaration deliberately made, though without an oath, and taken down "by any creditable person," is admissible (3). It is essential that the paper itself be produced (4), and be sworn to as correct, and as freely Precognition of emitted by the deceased, when sane (5). The precognition of a deceased person is inadmissible (6), but when a precognition had been practically made part of a solemn declaration by being read over to the deceased, and declared to be truth by him, in sworn declaration, it was admitted (7). A deposition of a person still alive is inadmissible, even of consent (8). Deposition of one A declaration in writing by the spouse of the accused is inadmissible (9). But where the wife of the accused was the injured party, and the charge was that he had falsely accused her to the authorities as guilty of a crime, the declaration which she emitted when examined upon the false charge was held admissible, as part of the res gesta of the offence of the husband (10).

alive, or of spouse of accused.

Declaration by wife falsely accused.

1 Hume ii. 410.-In the case of Reid there mentioned, the accused seems to have been allowed to found on the declaration of a deceased co-accused, but only by indulgence.

2 Hume ii. 407, case of Elphin-
ston in note 1.-Alison ii. 605.-
Jas. Bell, H.C., June 22d 1835;
Bell's Notes 292 and 13 Shaw's
Session Cases 1179. Isabella
Brodie, H.C., March 12th 1846;
Ark. 45. John Stewart, H.C.,
June 4th 1855; 2 Irv. 166 and 27
S.J. 408.

M'Intosh, Perth, April 26th 1838; 2 Swin. 103 and Bell's Notes 292.-Chas. Ormund and Will. Wylie, Glasgow, May 11th 1848; Ark. 483.-Alison ii. 608 contra.

7 Bridget Kenny or Lynch, Dundee, Sept. 13th 1866; 5 Irv. 300 and 39 S.J., 2 and 2 S.L.R. 273. -Carl J. Peterson and Luciana Dilucca, Aberdeen, April 28th 1874; 2 Couper 557.

3 Hume ii. 407.-Alison ii. 607. 4 Alison ii. 607.

5 Hume ii. 407.

6 Dickson i. § 106.--Murdoch M.

8 Hume ii. 410, case of Chalmers and others in note 1.-Alison ii. 516,--ii. 609.-Paul Cavalari, Glasgow, Sept. 28th, 1854; 1 Irv. 564.

9 Hume ii. 400, case of Goldie in note 2.

10 Elliot Millar, Jedburgh, Sept. 17th 1847; Ark. 355.


Accused's letters

others not evi

The accused's letters, except those to his agent as to Proof by his defence, are evidence, though found undespatched in his possession (1). And his private books and and papers. diary may be evidence. But though they may be read and commented upon by the accused if produced by the prosecutor, they are not evidence in his favour, and a state of affairs made up by a professional man from the accused's books and his own statements, the books not being produced, was not admitted in evidence (2) Letters or books or diaries of other Letters, &c., of persons are not in themselves evidence.

But letters dence unless proved to have been delivered to the accused, or found trace in his possession, may be used, always excepting privileged letters from his agent. And letters written in correspondence with the accused are admissible (3). Drafts or copies of letters not proved to have been sent Drafts or copies. to the accused, are not admissible (4). But where a copy only was produced, it was held sufficient to make it admissible, that the previous and subsequent letters shewed that the original had been received (5). Copies of letters to foreign witnesses requiring their attendance at the trial, and their answers refusing to attend, are admissible (6). The books or diaries of persons other Books, &c., of than the accused are not evidence against him (7), although they might be admissible in his favour if 1 Hume ii. 396.--Alison ii. 611.

traced to him.

Madeleine H. Smith, supra. 2 Harris Rosenberg and Alithia 5 Madeleine H. Smith, H.C., Barnett or Rosenberg, Aberdeen, June 30th to July 9th 1857 ; 2 Irv. April 16th 1842; 1 Broun 266 and 641 and 29 S. J. 564. Bell's Notes 285. It may be doubted 6 Joseph M. Wilson, H.C., June whether in any case such a docu- 8th 1857 ; 2 Irv. 626 and 29 S. J. ment would be received, as such 561. As to the question whether matters should be proved by parole the existence of a copy excludes of the witness, he of course being parole of the contents of a docuentitled to look at his state to re- ment lost or destroyed, vide Dickfresh bis memory.

son i. § 149. 3 Dickson i. § 107.-Madeleine 7 Case of Smith supra.-See obH. Smith, H.C., June 30th to July servations by Lord President Mac9th 357 ; 2 Irv. 641 and 29 S. J. neill in Hogg v. Campbell and 564.

others, June 9th 1864 ; 2 Macph. 4 Dickson i. § 107.-Case of 1158.



Conspiracy cases exceptional,

Trifling errors will not exclude.

Unstamped receipts.

Opposite party may found on writing produced.

the person was dead. In cases of conspiracy, papers found upon the accused, though apparently never used or published, and though the writers be unknown, may be used against all the conspirators (1). But the prosecutor may not without notice, extend his proof by using letters written long before the date fixed as the commencement of the conspiracy (2). As a general rule, documents which come into existence after the accused has been apprehended, are not evidence against him (3), except as general proof of the existence of the conspiracy

Trifling errors or informalities will not exclude documents.

A clerical error in the date of a declaration even was not held fatal (4), and unstamped receipts are admissible (5).

If any writing, such as a business book, be produced by either party, the whole of it may be made use of by the opposite party ; though not necessarily to the effect of making that to be evidence for the opposite party which would otherwise be incompetent, but merely of entitling him to have it read, and to comment upon it (6).

1 Hume ii. 396, 397.-Alison ii. 1842; 1 Broun 266 and Bell's Notes 612, 613. – Thos. Hunter and others, 281.—Peter Dale and Jane Macauley H.C., Jan. 3d to 11th 1838; 2 or Dale, Glasgow, May 1834 ; Bell's Swin. 1 and Bell's Notes 281. Notes 280. Jas. Cumming, John Grant, and 6 Alex. Humphreys or Alexanothers, H.C., Nov. 7th and to 25th der, H.C., April 29th 1839; Bell's 1818; J. Shaw 17.-Besides the Notes 284 (2d notice on that page) point mentioned in the rubric, and Swinton's Special Report. But another point relating to a similar where the Crown libelled on question is reported at p. 54.

Crown office letter book, for certain 2 Case of Cumming and others, letters only, the Court held that the supra.

accused could not claim to see or 3 Alison ii. 613.

make use of the rest of the book. 4 Jas. Robertson, Perth, July Joseph M. Wilson, H.C., June 6th 28th 1850 ; J. Shaw 447.

1857; 2 Irv. 626 and 29 S. J. 561. 6 Alison ii. 610, case of Bramwell The report does not explain whether there.—John Mackenzie, H.C., July this ruling proceeded on the ex20th 1846 ; Ark. 97.- See also Harris pediency, on public grounds, of reRosenberg and Alithia Barnett or laxing ordinary rules in the case of Rosenberg, Aberdeen, April 16th Crown office books.


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