a verdict finding the accused guilty of stealing a part VERDICT. 'of the articles libelled " was a good conviction (1). Whether this was right may be doubted, as the question of the extent of the theft was left undecided, and such a verdict might be returned unanimously, though the case as to each article libelled should be held proved only by separate minorities of the jury. of acquittal. Where the jury are called upon to return a formal Formal verdict verdict of acquittal in consequence of a charge being abandoned by the prosecutor, or of a direction from the Court, the 'guilty" (2). proper verdict is one of "not insanity. If the jury hold the accused insane at the time of Verdict of the offence, they acquit on the ground of insanity. Further, if at any stage of the trial they arrive at the conclusion that he is then insane, a finding to that effect is recorded (3). Absolvitor. sence required. On acquittal, the Court at once assoilzie the accused, SENTENCE. and dismiss him from the bar; unless cause be shown for detention and committal upon a different charge (4). But absolvitor will not be pronounced if the accused Accused's preis not present, except in special circumstances (5). In one case, where the accused was taken ill, the Court of consent of the prosecutor, dispensed with his attendance (6). Where the acquittal is on the ground Procedure where 1 Brodie v. Johnston, H.C., Nov. 24th 1845; 2 Broun 559. 2 Thos. Galloway and Pet. Galloway, H.C., June 27th 1836; 1 Swin. 232 and Bell's Notes 297.-Arch. Phaup, H.C., Nov. 9th 1846; Ark. 176.-This course was not followed in some cases: see Felix Jordan or Jardine, H.C., Nov. 7th 1826; Syme 13.-Chas. M'Mahon and Margaret M'Mahon, H.C., Dec. 10th 1827; Syme 281. John Craig, H.C., Oct. 30th and 31st 1867; 5 Irv. 523. 3 Act 20 and 21 Vict. c. 71 § 87. --See Alex. Milne, H.C., Feb. 9th, 10th, and 11th, 1863; 4 Irv. 301 and 4 Hume ii. 464, and case of Mac- 5 Hume ii. 471.-Alison ii. 653. too broad a statement. There 6 Alex. Humphreys or Alex- insanity found. SENTENCE. Prosecutor moving for sentence. Restriction of libel. Plea in bar of judgment. Delay only if plea at once stated. of insanity, the accused is ordered to be detained in custody till the royal pleasure be known (1). When the verdict convicts, the prosecutor moves the Court to pronounce sentence. If he do not ap pear, or decline so to move, no sentence can be pronounced (2). Further, the Lord Advocate or his deputes may at any period of the trial of a capital case, and even after verdict, restrict the pains of law to an arbitrary punishment (3). The accused is entitled to be heard, if he has any ground to oppose judgment, and therefore no sentence, except one of outlawry, can be pronounced in his absence (4). Again, if at the time when sentence is moved for he be not in his senses, from whatever cause, the diet must be adjourned (5). If the Court do not see cause for delay, they will not adjourn to allow the accused to prepare reasons in arrest of judgPlea in bar not ment, unless they are then and there stated (6). No libel or evidence. plea in bar of judgment, grounded on objections to the libel (7) or evidence (8) will receive attention. And it is not a good objection to aver that during the trial a juryman was out of the custody of the officers of Court. Such an objection must be stated before the jury are allowed to return their verdict (9). Objections must power of Court. either relate to the insufficiency of the verdict, the admissible as to Objection to 1 Acts 20 and 21 Vict. c. 71, and 34 and 35 Vict. c. 55. 2 Hume ii. 470, 471.-Alison ii. 653.-Marion Nicolson or Mailer, Mar. 2d 1829; Bell's Notes 300.— Alex. Smith, Ayr, April 11th 1842; Bell's Notes 300. 3 Hume ii. 134.-Where both common and statute laws are libelled on the restriction may be limited to the common law.-See Hume ii. 168 and cases of Anderson and others and Ferguson there. 4 Hume ii. 470,471.-Alison ii. 653. 5 Hume ii. 471, and cases of M'Cullin, and Gray there.-Alison ii. 653. 6 Hume ii. 463, case of Nairne and Ogilvy there.-Alison ii. 651. 7 Will. Allan, H.C., Feb. 4th 1872; 2 Couper 402. 8 Hume ii. 467, and case of Tawse in note 1 referring to p. 302, note 1. -Alison ii. 651. 9 Pet. Luke, Dundee, Sept. 13th 1866; 5 Irv. 293 and 39 S. J. 2 and 2 S. L. R. 273. powers of the Court, or the state of the accused. SENTENce. Almost the only question raised as to the power of the Court has been the case of a trial on Circuit taking place in a different month from that mentioned in the libel; and the objection in arrest of judgment was repelled (1). Where a female alleges pregnancy as a Case of pregnant ground for delay in pronouncing a capital sentence, a remit is made to skilled persons, and if pregnancy exists, the diet is continued from time to time, till after delivery (2). female. sistent with The sentence must be consistent with the charge Sentence conand the laws on which it is founded. If the libel charge and law pray for imprisonment, a sentence to pay a fine is invalid (3), and vice versa (4); or if the libel be founded on a statute which appoints a particular punishment, failure to inflict that exact punishment renders a sentence nugatory (5). The same holds if penalties authorised as alternatives are imposed cumulatively (6). Where the sentence imports deprivation of liberty, Period of conthere must be a fixed period. Even a sentence of imprisonment "not exceeding" a certain period is invalid (7). finement definite. The sentence is announced by the presiding judge, Passing sentence. and minuted and signed by the Clerk of the Court in the record; but in capital cases the old form of sentence, which is signed by all the judges present, is 1 Jas. M'Kay and John Broadly, Glasgow, Oct. 2nd 1861; 4 Irv. 97 and 34 S. J. 1.-A similar objection had been repelled in questions of citation.-See Mary M'Farlane or Taylor, Glasgow, May 1st 1843; 1 Broun 550.-John M'Neill, Glasgow, May 1st 1844; 2 Broun 149. 2 Hume ii. 471, cases of Nairne: and Langlands there, and cases of Geddes and Cunningham in note 1. 3 Hood v. Young, H.C., June 10th 1853; 1 Irv. 236 and 25 S. J. 446 4 Orr v. Macallum, H.C., June 5 Ferguson v. Thow, H.C., June 30th 1862; 4 Irv. 196 and 34 S. J. 587. Gardner v. Dymock, H.C., Jan. 9th 1865; 5 Irv. 13 and 37 S. J. 189. 6 Methven v. Glass, H.C., Dec. 20th 1848; J. Shaw 146. 7 Grant v. Grant, H. C., Dec. 3d 1855; 2 Irv. 227 and 28 S. J. 49. SENTENCE. Date from which sentence operates. adhered to, and is read out from the Record by the presiding judge (1). Ordinary sentences run from the date of judgment; but where the accused is already undergoing punishment for another offence, it is competent to appoint the new sentence to take effect on the expiry of the first period (2). A capital sentence must fix a date not less than fifteen days or more than twenty-one days after judgment, if south of the Forth; and not less than twenty days or more than twenty-seven days, if north of the Forth (3). Alteration of day If per incuriam, a day within the proper period has Time of execution of capital sentence. of execution. been fixed, or if the day fixed be set apart for a public fast, or the like, the High Court can ordain the execution to take place on a different day (4). A blundered sentence which has been in no way issued or acted on, may be superseded by a correct one (5). Sentence cannot But on the other hand, no alteration or amendment of a sentence as to its substance and effect, can be made by any Court, after the sentence has been pronounced (6). be altered in substance. Adjournments. All adjournments of Court must be made by a proper entry in the Record, by which the Jury are ordered into proper custody, and all concerned ordered to attend at a time fixed by the interlocutor (7). NOTE. It is not possible to notice at length the peculiarities of treason trials and trials of Peers. In reference to the former, see Hume i. 536 et seq. passim. For a specimen of the latter, see the case of Viscount Arbuthnott, Arkley's Appendix. 1 Act of Adjournal, Aug. 1st 1849. -See Hume ii. 472. 2 John Graham, H.C., Nov. 21st 1842; 1 Broun 445. 3 11 Geo. IV. and 1 Will. IV. c. 37. 4 Hume ii. 473, and cases of Hay: and Jack there -Alison ii. 656. 5 Forbes v. Duncan, H.C., Nov. 20th 1865; 5 Irv. 213 and 38 S. J., 47 and 1 S. L. R. 36. 6 Hume ii. 476, and case of the Magistrates of Edinburgh there and cases of Tweedale: and Macnish and Drysdale in note 1.-ii. 477, and case of Fife there.-Alison ii. 660, 661.-But see Stewart v. Boyd, H.C., Dec. 13th 1855; 2 Irv. 327 and 28 S. J. 104.-Clarkson v. Muir, H. C., July 19th 1871; 2 Couper 125 and 43 S. J. 589 and 8 S. L. R. 681. 7 M'Garth and others v. Bathgate H.C., May 14th and 15th 1869; 1 Couper 260 and 41 S. J. 442 and 6 S. L. R. 494. SUMMARY PROCEDURE. CEDURE NOT TO TREATED OF. It is not possible to treat at length of Summary Pro- SUMMARY PROcedure, a subject which affords materials for a separate BE FULLY Treatise. The intention of the present chapter is to aid the legal practitioner by giving a synopsis of the matters in reference to summary procedure which are to be found in the Reports. TERS ON SIX Cases not serious enough for trial by jury and too CRIMINAL LETserious to be dealt with as police offences may be tried DAYS INDUCIE. on Criminal Letters before the Sheriff, the induciæ of citation being not less than six days (1). But this mode of trial is practically obsolete. COMPLAINT. on complaint Must aver what offence. All other summary prosecutions are conducted by PROSECUTION BY complaint (2). Except where otherwise specially provided, a conviction not proceeding upon a regular Conviction not complaint is illegal (3). The complaint must aver illegal. that which is truly a cognizable offence. If it refer to is truly an a wrong section of a statute (4), or otherwise fail to set forth what truly constitutes an offence (5), or the time or place of the alleged act, a conviction following on it will be set aside (6). Further, if it do not contain a sufficient statement of particulars as enjoined by the statute under which it is brought (7) or desig 1 Act of Adjournal, March 17th 1827.-See Alison ii. 39. 2 The statutes under which such complaints are generally brought are 9 Geo. IV. c. 29, and 27 and 28 Vict. c. 353 3 Law v. Steel, H.C., July 21st 1846; Ark. 109.-Welsh v. Macpherson, Inverness, April 19th 1850; J. Shaw 345. 4 Hopton v. Wicks, H.C., March 5th 1858; 3 Irv. 51 and 30 S. J. 516. 5 Buist v. Linton, H.C., Nov. 20th 1865; 5 Irv. 210 and 38 S. J. 47 and 1 S. L. R. 35.-See also Wil- 6 Will. M Vey, H.C., Feb. 17th 7 Thomson v. Wardlaw, H.C., Jan. 23d 1865; 5 Irv. 45 and 37 S. J. 209. |