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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 ques-
tion of the extent of the theft was left undecided, and
such a verdict might be returned unanimously, though

as to each article libelled should be held proved only by separate minorities of the jury. Where the jury are called upon to return a formal Formal verdict

of acquittal. verdict of acquittal in consequence of a charge being abandoned by the prosecutor, or of a direction from the Court, the proper verdict is one of “not 'guilty” (2). If the jury hold the accused insane at the time of Verdict of

insanity. 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).

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 pre

sence required. is 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

insanity found. 1 Brodie v. Johnston, H.C., Nov. 10th, and 11th, 1863 ; 4 Irv. 301 and 24th 1845; 2 Broun 559.

35 S.J. 470.
2 Thos. Galloway and Pet. Gal- 4 Hume ii. 464, and case of Mac-
loway, H.C., June 27th 1836; 1 iptosh there.
Swin. 232 and Bell's Notes 297..- 6 Hume ii. 471.- Alison ii. 653.
Arch. Phaup, H.C., Nov. 9th 1846; Alison states that the prosecutor
Ark. 176.-This course was not fol. must be present, or absolvitor can-
lowed in some cases :

see Felix
not be pronounced.

This seems
Jordan or Jardine, H.C., Nov. 7th too broad & statement. There
1826; Syme 13.--Chas. M'Mahon could scarcely be a better ground
and Margaret M‘Mahon, H.C., Dec. for absolvitor than the failure of
10th 1827; Syme 281. John the prosecutor to appear and show
Craig, H.C., Oct. 30th and 31st cause against it.
1867 ; 5 Irv. 523.

6 Alex. Humphreys or Alex3 Act 20 and 21 Vict. c. 71 $ 87. ander, H.C., April 29th to May 1st --See Alex. Milne, H.C., Feb. 9th, 1839; 2 Swin. 356 and Bell's Notes

Prosecutor moving for sentence.

Restriction of libel.

Plea in bar of judgment.

SENTENCE. 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 appear, 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 Delay only if cause, the diet must be adjourned (5). If the Court stated. 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

plca at once

admissible as 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.

sistent with

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).

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 im

. prisonment “not exceeding” a certain period is invalid (7).

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, 1853; 1 Irv. 236 and 25 S. J. 446 Glasgow, Oct. 2nd 1861 ; 4 Irv. 97 and 2 Stuart 453. and 34 S. J. 1.-A similar objec- 4 Orr v. Macallum, H.C., June tion had been repelled in ques- 25th 1855 ; 2 Irv. 183 and 27 S. J. tions of citation.-See Mary M.Far

500. lane or Taylor, Glasgow, May 1st 5 Ferguson v. Thow, H.C., June 1843; 1 Broun 550.-John M'Neill, 30th 1862; 4 Irv. 196 and 34 S. J. Glasgow, May 1st 1844 ; 2 Broun 587. -- Gardner v. Dymock, H.C., 149.

Jan. 9th 1865 ; 5 Irv. 13 and 37 S. 2 Hume ii. 471, cases of Nairne: J. 189. and Langlands there, and cases 6 Methven v. Glass, H.C., Dec. of Geddes : and Cunningham in 20th 1848; J. Shaw 146. note 1.

7 Grant v. Grant, H.C., Dec. 3d 3 Hood v. Young, H.C., June 10th 1855; 2 Irv. 227 and 28 S. J. 49.

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finement definite.

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Date from which sentence operates.

Sentence cannot be altered in substance.

SENTENCE. 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 Time of execu- on the expiry of the first period (2). A capital sention of capital sentence, tence 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

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). А blundered sentence which has been in no way issued or acted on, may be superseded by a correct one (5). 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 pro

nounced (6). 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. and cases of Tweedale : and Mac- See Hume ii. 472.

nish and Drysdale in note 1.-ii. 2 John Graham, H.C., Nov. 21st 477, and case of Fife there.-Ali1842; 1 Broun 445.

son ii. 660, 661.-But see Stewart 3 11 Geo. IV, and 1 Will. IV. v. Boyd, H.C., Dec. 13th 1855 ; 2

Irv. 327 and 28 S. J. 104.-Clark4 Hume ii. 473, and cases of Hay: son v. Muir, H. C., July 19th 1871 ; and Jack there.-Alison ii. 656. 2 Couper 125 and 43 S. J. 589 and

5 Forbes v. Duncan, H.C., Nov. 8 S. L. R. 681. 20th 1865; Irv. 213 and 38 S. J., 7 M'Garth and others v. Bathgate 47 and 1 S. L. R. 36.

H.C., May 14th and 15th 1869; 1 6 Hume ii. 476, and case of the Couper 260 and 41 S. J. 442 and 6 Magistrates of Edinburgh there S. L. R. 494.

c. 37.




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.

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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.

1 Act of Adjournal, March 17th 1827.-See Alison ii. 39.


on complaint

Must aver what


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

47 and 1 S. L. R. 35.-See also Wil-
son v. Dykes, H.C., Feb. 2d 1872;
2 Couper 183 and 44 S. J. 251 and
9 S. L. R. 271.

2 The statutes under which such complaints are generally brought are 9 Geo. IV. c. 29, and 27 and 28 Vict. c. 53

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.

6 Will. M Vey, H.C., Feb. 17th 1844; 2 Broun 102. -Burns v. Moxey, H.C., Feb. 21st 1850; J. Shaw 330.-Galbraith v. Muirhead, H.C., Nov. 17th 1856; 2 Irv. 520 and 29 S. J. 15.-Buist v. Linton, H.C., Nov. 20th 1865; 38 S. J. 47 and 1 S. L. R. 35.

7 Thomson v. Wardlaw, H.C., Jan. 23d 1865; 5 Irv. 45 and 37 S. J. 209.

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