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Proof of previous




Previous convictions must be proved during the Proof BY proof of the cause, and the mere fact that a statute applicable to the United Kingdom contains provisions convictions. whereby previous convictions may be proved after verdict, will not be held sufficient to alter the universal practice of Scottish Courts (1).

Both as regards parole proof and proof by produc- Secondary tions, it is a fixed rule, that secondary evidence shall evidence. not be received, until the absence of the best evidence has been accounted for (2).

A few words on the sufficiency of evidence may be SUFFICIENCY OF useful. No extrajudicial confession is sufficient for No extra-judicial conviction (3), even though made in a declaration (4). sufficient. What additional evidence shall suffice is a question of circumstances. A merely suspicious circumstance will rarely be enough (5). But where the proof of theft consisted of a confession and evidence that the accused, who before the offence had been destitute, had after it a considerable sum, he was convicted (6). And, in a case of sending threatening letters, the accused was convicted, the only evidence, besides confessions, being that the letters contained statements which she had told others were in them, and that there was similarity between her hand-writing and that of the letters (7).

Previous convictions may be proved by an extract Proof of previous sworn to as applying to the accused (8).



1 Will. Cox, Dundee, April 23d 1872; 2 Couper 229 and 44 S. J. 380 and 9 S. L. R. 451.

2 John S. Montgomery, Aberdeen, Sept. 25th 1855 ; 2 Irv. 222.

3 Dickson ii. § 1464 – Thos. Hunter and others, H.C., Jan. 3d 1838; Bell's Notes 239 and Swinton's Special Report.

4 Dickson ii. § 1430.-Hume ii. 324 and case of Ramsay in note 3.Alison ii. 578, 579, and case of Dun

lop and others there.--Arch. Duncan and Chas. Mackenzie, Dec. 30th 1831 ; Bell's Notes 239.

6 Ann Duff and Janet Falconer, Dec. 19th 1831; Bell's Notes 239.Jas. Douglas, Nov. 17th 1834 ; Bell's Notes 240.

6 Jobn Buchanan, Nov. 17th 1837 ; Bell's Notes 240.

7 Elizabeth Edmiston, H.C., Jan. 15th 1866 ; 1 S. L. R. 107.

8 Act 34 and 35 Vict. c. 112, 18.



One witness insufficient.

Socii alone insufficient.

Two witnesses not necessary to every fact.

Circumstantial proof.

Recent possession in theft.

The evidence of one witness is not sufficient to convict (1), unless this be declared sufficient by statute as regards the particular offence. If there be a statute making it sufficient, such evidence may suffice, although there be no penuria, and other witnesses might have been called (2). If a witness be corroborated by circumstances (3), or by the accused's declaration or confession, this is sufficient (4). On the other hand, two or even more socii criminis, require corroboration by witnesses, or circumstances, or confessions (5). Whether the evidence of one unsuspected witness, supported by that of a socius, may be sufficient, is a disputed point (6). It is not necessary that there should be two witnesses to prove any fact (7), or even any single act in a continuous crime, such as incest, or treason (8). Even a substantive aggravation may be proved by one witness (9).

Circumstantial proof alone may suffice (10). In the cases of some crimes such proof is often all that can be obtained. Thus, recent possession of stolen pro

This statute removes the difficulties
which arose in John Docherty or
Doherty, Glasgow, April 22d 1864 ;
4 Irv. 501.-John Patrick and
others, Aberdeen, Sept. 21st 1866;
5 Irv. 308 and 39 S. J. 3.

appear to have been in all of them some elements of additional proof.

7 Dickson ii. §§ 2039, 2040.— Hume ii. 384, 385.-Alison ii. 551. 8 Dickson ii. §§ 2040, 2041.Hume ii. 385.-Alison ii. 552.

1 Dickson ii. § 2038.-Hume ii. 383.-Alison ii. 551.

2 Jopp v. Pirie, Aberdeen, April 15th 1869; 1 Couper 240.

3 Dickson ii. § 2039.-Hume ii. 384. Alison ii. 551.-Duncan Macmillan, Jan. 9th 1833; Bell's Notes 273.

4 Dickson ii. § 2039.-Alison ii. 552.

5 Margaret Campbell or Brown, Perth, Oct. 4th 1855; 2 Irv. 232.

6 Hume ii. 383.-Alison ii. 554.Alison refers to cases quoted in vol. i. 243 et seq., to show that such evidence is sufficient. But there would

9 Richard Cameron, H.C. Nov. 7th 1839; 3 Swin. 447 and Bell's Notes 274-Jas. Davidson, Glasgow, Dec. 21st 1841; 2 Swin. 630 and Bell's Notes 274. These cases overrule the cases of John Davidson, Perth, April 24th 1838; 2 Swin. 102 and Bell's Notes 273, and Elizabeth Connor and Susan Dougharty, Glasgow, Sept. 20th 1838; 2 Swin. 194 and Bell's Notes 274. The report of this last case was pronounced inaccurate by Lord Cockburn in the case of Cameron.

10 Dickson i. § 281.-Hume ii. 385. -Alison ii. 552.


perty without any reasonable explanation given, is in SUFFICIENCY OF law sufficient circumstantial evidence to convict of theft (1). What shall be held recent possession has never been defined. In one case, possession two months after the offence was held not sufficiently recent to infer guilt (2). Of course, the nature of the things in question may make a difference as to the inference to be drawn from mere possession, and also as to the time which may be held recent (3).

question of

Sometimes a question of sufficiency arises inciden- Incidental tally. Where the indictment is alternative, and sufficiency. aggravations are charged in reference to one crime, it may happen that, after proof of the corpus delicti, the Court consider that the prosecutor has failed to prove the offence, to which the aggravations relate. The question then arises whether proof of the aggravations is admissible. It would appear that, except in an extreme case, the Court would not interfere (4).

act not examined.

It is a general rule that a party is only bound to All witnesses of bring sufficient evidence. If facts be witnessed by a hundred people, it is sufficient to call a few.

Space is wanting to notice the numerous cases in which questions arise as to the effect to be given to certain classes of evidence, e.g., the weight to be attached to previous convictions in judging whether Previous convicthere was guilty knowledge or intent. By a recent guilty knowstatute, in cases of reset, convictions of crimes involving fraud or dishonesty, or the possession of other goods than those libelled, stolen within the previous twelve

tion to prove


1 Hume i. 111.-Alison i. 320.Dickson i. § 334.

2 John Hannah v. Hugh Higgins, Dumfries, Sept. 17th 1836; 1 Swin. 289.

3 See Dickson i. § 334.

4 See Gilbert Macallum, H.C., March 7th 1836; 1 Swin. 64 and Bell's Notes 180 (proof disallowed).

-Ann Scott and others, H C., Mar.
21st 1842; 1 Broun 131 and Bell's
Notes 32.-Mary Adams or Adam-
son, H.C., Feb. 13th 1843; 1 Broun
519 and Bell's Notes 180.--See also
observations by Lord Justice Clerk
Boyle in John Dawson, March 14th
1835; Bell's Notes 31.



in lists.

in causa at



SUFPICIENCY OF months, may competently be proved in evidence of

guilty knowledge (1).

Before leaving the subject of evidence, it is necessary to mention one or two matters. Both in the Supreme and Sheriff Courts, the judge must take notes of the evidence (2).

When an incidental question presents itself, e.g., as to the competency of a witness, or the Witnesses not

lodging of a production, or the like—witnesses may be examined who are not in the lists lodged (3).

The accused may, at the desire of the Court, examine May be examined

a witness in causa, though not included in the desire of Court. lists (4).

The accused is always permitted to withdraw his plea of “not guilty” during the course of the evidence, and to tender a plea of guilty, which is recorded and read to the jury, who, as a matter of form, find him

guilty in terms of his confession. SPEECHES, The evidence being concluded, the prosecutor and

the accused may address the jury. The judge then charges the jury, who may return their verdict at once (5), but if they desire to deliberate, they are inclosed under charge of an officer of Court (6). Any intercourse with the jury after inclosure entitles the accused to an acquittal (7). Nor is it necessary, as

1 Act 32 and 33 Vict. c. 99, § 11. 5 Aot 54 Geo. III. c. 67. This Act removes out of the way 6 When the jury are inclosed, it the difficulty referred to in the case is competent in the High Court for of Quarns v. Hart and others, H.C. one judge to remain and receive June 4th 1866; 5 Irv. 251 and 38 the verdict, and assoilzie the S. J. 409 and 2 S. L. R. 53.

accused or continue the diet accord2 Acts 23 Geo. III. c. 45, and 9 ing as the verdict acquits or conGeo. IV. c. 29, $ 17.

victs (Act 9 Geo. IV., c. 29, § 15). 3 This is specially provided by

But this is never done now. statute as regards proof of the cita- 7 The questions which arose fortion of the accused. Act 9 Geo. IV. merly as to intercourse held by the c. 29, $7.—Thomas Mackenzie alias assize with others immediately beM'Kenna, Inverness, April 21st fore inclosure (see Hume ii. 419 to

1 Couper 244 and 41 S. J. 422 passim-Alison ii. 635, 636), can393.

not now arise, as the jury are al-
4 Geo. L. Smith and Rob. Camp- ways inclosed at once, unless they
bell, H.C., Jan 15th to 17th 1855 ; agree in the box.
2 Irv. 1.

with assize after

1869 ;



in the case of intercourse before inclosure, that there SPEECHES, should be proof that it was corrupt or exercised in- INCLOSURE OF fluence on the jury (1). But intercourse for a necessary purpose may not have this result, e.g., if the jury ask for writing materials, and they are thrust below the door (2) or if a juryman is taken ill, and a doctor is admitted (3), or if the jury return to put a question to the Court (4).


The verdict, which may be that of a majority, is VERDICT. announced by the Chancellor of the Jury (5), and taken down in the Record by the Clerk (6), along with any recommendation they may make, all in the presence of the accused (7). If it does not correspond Amendment of with the libel, or is defective or ill-expressed, the Court may ascertain the meaning of the jury, or point out the defect, and cause them to retire for reconsideration (8). But all such proceedings must take place Verdict not before the verdict is recorded. After recording, no explained after modification or explanation of it will be allowed (9),

amended or


1 Acts 1587, c. 92.-1672 c. 16.Hume ii. 419, 420, case of Sanderson there. Alison ii. 634, 635-ii. 639.

2 Hume ii. 420, case of Kirkpatrick and others there. -Alison ii. 635.

3 Geo. Wilson and Rob. Wilson, H.C., Dec. 18th 1826; Syme 38.

4 Hume ii. 424, case of Macneil and others in note a.-Alison ii. 638.

5 The name of the chancellor need not be recorded; Peter M'Kinlay and others, Dumfries; April 17th 1819; Shaw 58.

6 It is not necessary to say anything upon written verdicts, as these are now obsolete.

7 Hume ii. 427, 428. One case is mentioned by Hume (Glasgow and others) where a verdict was received in absence of one of the accused, who fell sick, and it is stated that

he was afterwards sentenced upon
the verdict. It may be doubted
whether this would now be done.
It would have seemed more consist-
ent with principle, to have directed
the jury to return no verdict as to
the person who was sick, and to
have tried him again.

8 Alison ii. 640, 641.-Jas. Alex-
ander, H.C., May 19th 1823; Shaw
99.-Geo. Wilson and Rob. Wilson,
H.C., Dec. 18th 1826; Syme 38.-
Will. Hardie, Jan. 24th 1831; Bell's
Notes 296. Will. Harvey, Nov. 7th
1833; Bell's Notes 296. — Will.
Waiters, Inverness, Sept. 23d 1836;
1 Swin. 273 and Bell's Notes 296.

9 Janet Anderson or Darling, March 12th 1830; Bell's Notes 295.-Thos. Hunter and others, H.C., Jan. 3d to 11th 1838; 2 Swin. 1 and Bell's Notes 296.

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