COMPLAINT. Extreme accuracy not re quired. PROSECUTION BY nate the prosecutor incorrectly (1) the same result will follow. But great accuracy of detail is not required, Thus, that the person who signed a complaint at the instance of the procurator-fiscal was not named as procurator-fiscal in the complaint, was held not fatal (2). Again, in a prosecution for desertion of service it was held not a good objection that the complaint was signed by a procurator for the complainer (3). Again, a complaint addressed to His Majesty's Justices of Peace of the County of was not held invalid because, when presented, Queen Victoria had succeeded to the throne, and because the name of the county had not been filled up (4). Further, a much more general reference to a statute founded on is permissible than would be sanctioned in a regular indictment (5) and in some cases rather vague statements of the locus (6) and untechnically worded statements of the modus (7) have not been held fatal. It has also been held that a conviction following on petition praying for penalties not prescribed by the statute under which it is brought, is not invalid, if the petition did pray for the statutory penalties, and these only were inflicted (8). And complaints under the Summary 1 Lockhart v. Molison, Glasgow, April 23d 1868; 40 S. J. 393. 2 M'Vie and Linch v. Dykes, H.C., May 28th 1856; 2 Irv. 429 and 28 S. J. 416.--See also Forrest v. Macfarlane, H.C., July 21st 1852; 1 Irv. 75. 3 Robertson v. Barrowman, H.C., Dec. 5th 1853; 1 Irv. 324 and 26 S. J. 147. See also Raper or Reaper v. Duff, H.C., Feb. 6th 1860; 3 Irv. 529 and 32 S. J. 478 (a day poaching case). 4 M'Kenzie v. Jeffrey, H. C., June Byrnes and others v. Dick, and 6 Whitton or Stormonth v. Drum mond, H.C., March 12th 1838; 2 Swin. 62 and Bell's Notes 152.Russel v. Lang, H.C., June 1st 1844; 2 Broun 211.-See also Hamilton v. Girvan, H.C., June 15, 1867; 5 Irv. 439 and 39 S. J. 510 and 4 S. L. R. 104. 7 M'Cartney v. Guthrie, H.C., Jan. 16th 1838; 2 Swin. 23 and Bell's Notes 192.-See also Bisset v. Mackay, H.C., March 3d 1855; 2 Irv. 68 and 27 S. J. 244; Johnston v. Robson, H.C., May 25th 1868; 1 Couper 41 and 40 S. J. 512 and 5 S. L. R. 537.-De Belmont v. Lang, Glasgow, Sept. 28th 1871; 2 Couper 95 (See p. 102). 8 Chisholm and others v. Black and Morrison, H. C., June 12th 1871; 2 Couper 49 and 43 S. J. 445. COMPLAINT. Procedure Act may be amended, in matters not chang- PROSECUTION BY ing the character of the offence (1). ceeding on com may be fatal. served. Where the complaint is not directed against a per- Warrant proson in custody, the ordinary procedure is that a warrant plaint. is granted to cite the party to appear, or to apprehend him, as the case may require. The want of such a want of warrant warrant may be fatal to all subsequent proceedings (2); and this is particularly the case where a law-abiding person is arrested not flagrante delicto, but subsequent to the offence (3). But it is not necessary to serve Complaint not the complaint or any list of witnesses upon the accused (4), unless this be enjoined by special statute. And where a copy is given at citation, the omission of an unimportant part of the complaint in the copy will not necessarily be fatal (5). If the warrant is Terms of warrant merely to "convene" the accused, it is not competent instant trial. to apprehend him (6); and if it be to bring the accused into Court "for examination," it is not competent when he is brought up, at once to try him (7). Further, if a Statute appoints the serving of the com- Warrant to applaint, it is not competent to issue a warrant for service statutory. apprehension, unless the summons has been disobeyed, or there is reason to anticipate that the accused will 1 Act 27 and 28 Vict., c. 53, § 5.—Jackson and Fulton v. Jones, H.C., June 1st 1867; 5 Irv. 409 and 39 S: J. 450 and 4 S. L. R. 70; Morris and Boyd v. the Earl of Glasgow, H.C., Dec. 24th 1867; 5 Irv. 529 and 40 S. J. 108 and 5 S. L. R. 136. 2 Robertson v. Mackay, H.C., July 21st 1846; Ark. 114.-Jameson v. Pilmer, H.C., June 2d 1849; J. Shaw 238.-Hunter v. Johnston and Robson, H.C., June 30th 1854; 1 Irv. 519.-Stevenson v. Watson, H.C., Feb. 7th 1857; 2 Irv. 592 and 29 S. J. 184.-See also Cogan or Devany v. Anderson, H.C., Dec. 16th 1854; 1 Irv. 588. 3 Bain v. O'Neil, H. C., Dec. 14th 4 Ayton v. Haig, H.C., March 6 Crawford v. Wilson and Jamie- 7 Clark v. Stevenson, H.C., Nov. 19th 1853; 1 Irv. 309 and 26 S. J. may preclude prehend where PROSECUTION BY abscond (1). COMPLAINT. Want of oath. Incomplete warrant. Oppression. at bar and tried. Cited on one charge, tried on another. Where the oath of a credible witness is a statutory preliminary of the summons or warrant, the want of such oath, duly connected with the proceedings (2), and covering the charge to be made (3), will be fatal. Again, where the statute required the oath to be emitted by the complainer, proceedings following on an oath by another person were set aside (4). And where a warrant did not include a power to cite witnesses in terms of a statute, the conviction, though proceeding on a plea of "guilty" was quashed (5). If summary power is oppressively exercised, the Witness placed Supreme Court will set aside the proceedings. Where a person who had been cited as a witness, was, on his appearing, placed at the bar, tried, and convicted, the .conviction was quashed (6). And the same result -followed where a person cited on one charge, was Want of proper tried on a different charge (7). Again, where a .woman was told verbally that she was to be tried for reset, and no further intimation was made to her for five days, when an officer came to her house and told her she was wanted at the police office, the Court held that there had been no proper intimation, and sus intimation. 2 Smith v. Forbes and Low, supra. -Simpson v. Crauford and Dill, H.O., Dec. 22d 1851; J; Shaw 523 and 24 $. J. 141 and 1 Stuart 239,-Blythe and Taylor v. Robson, H.C. June 10th 1853; 1 Irv. 235 and 25, S. J.^446 and 2 Stuart 453.-Cochrane and others v. Blair, H. C., April 4th 1859; 3 Irv. 396 and 31 S. J. 452.Mackenzie v. Maberly, H.C., Nov. 21st 1859; 3 Irv. 459 and 32 S. J. 5.— Trainer v. Johnston, H. C., Jan. 5th 1863; 4 Irv. 264 and 35 S. J. 161. -Logan v. Coupland, H.C., Dec. 14th 1863; 4 Irv. 453 and 36 S. J. 4 M Neill v. Coltness Iron Coy., H.C., Dec. 10th 1842; 1 Broun 454. 45 Cockburn v. Johnson and Robson, H,C., June 3d 1854; 1 Irv. .492 and 26 S. J. 456. 6 Ritchie v. Pilmer, H.C., Dec. 20th 1848 J. Shaw 142. 7 Craig v. Steel, H.Ç., Dec. 20th ,1848; J., Shaw 148.-Orr. Macal'lum, H., June 25th 18557 2′′Irv. 183 and 27 S. J. 500.—Mackenzie v. Maberly, H.C., Nov. 21st 1859; 3 Irv. 459 and 32 S. J. 5., & COMPLAINT. pended the conviction (1). Refusal of reasonable PROSECUTION BY delay to prepare a defence, is a good ground for setting Refusal of reaaside a conviction (2). And where the proceedings sonable delay. are otherwise hasty and irregularly commenced, failure to give time for a proper defence may be ground for setting aside a conviction, although delay was not asked by the accused (3). This is specially true where the accused is a child, and still more so if the child is lawbiding, and is tried in the absence of its parent (4). But except in such cases, a conviction In ordinary case will not be set aside on the ground of time not being asked. allowed to prepare a defence, where no request for delay was made at the trial (5). And the demand must be recorded if it is to be founded on (6). delay must be Ordinary rules In summary procedure the ordinary rules of evi- EVIDENCE. dence apply, and substantial deviation from them, applicable. such as incompetent evidence being received on behalf of the prosecution (7), or competent evidence for the defence refused (8), will nullify the proceedings. 1 Cogan or Devany v. Anderson, H.C., Dec. 16th 1854; 1 Irv. 588. 2 Orr v. Macallum, H.C., June 25th 1855; 2 Irv. 183 and 27 S. J. 500.-Mahon or M'Mahon v. Morton, H.C., Feb. 6th 1856; 2 Irv. 383 and 28 S. J. 197.-O'Brien and others v. Linton, H.C., Feb. 21st 1857; 2 Irv. 603 and 29 S. J. 241. 3 Crawford v. Blair, H.C. Nov. 17th 1856; 2 Irv. 511 and 29 S. J. 12.-Williamson or Graham v. Linton, H.C., Nov. 24th 1856; 2 Irv. 558 and 29 S. J. 25.-See also Blyth and Tait or Blyth v. M'Bain, H.C., Feb. 20th 1852; J. Shaw 554 and 24 S. J. 265. 4 Meekison v. Mackay, H.C., Feb. 15th 1849; J. Shaw 159.-Gray v. M'Gill, H.C., Feb. 27th 1858; 3 Irv. 29 and 30 S. J. 511.-Jameson and others v. Mackay, H.C., Nov. 24th 1862; 4 Irv. 246 and 35 S. J. 54. 5 Mackean v. Wilson, H.C., Dec. 9th 1848; J. Shaw 132.-Bennet v. Hinchy, H.C., Feb. 6th 1860; 3 Irv. 6 Johnston v. Robson, H.C., May 7 Cochrane and others v. Blair, H.C., April 4th 1859; 3 Irv. 396 and 31 S. J. 452. 8 Leadbetter v. The Garnkirk Coal Coy, and Miller, H.C., Dec. 6th 1841; 2 Swin. 620 and Bell's Notes 307.-Bell and Shaw v. Houston, H.C., Jan. 22d 1842; 1 Broun 49. THOLEING ASSIZE. FORMS OF PRO The rules as to tholeing an assize apply to summary procedure. When a case went to trial, and the justices being equally divided gave no judgment, a conviction on a subsequent complaint was quashed (1). A few observations on procedure may be useful. The ordinary rule that the proceedings must be in cused essential presence of the accused, applies to summary procedure, but many special statutes authorise a trial in absence, where the accused fails to appear. But a conviction CEDURE AT Presence of ac unless dispensed with by statute. Magistrate who signs warrant Objections, &c., recorded. in absence will not be sustained if the citation served on the accused called him to appear on a different day from that of the trial, although the separate citation was superfluous, and though it referred to an accompanying copy of the deliverance of the magistrate on the complaint in which the true date was stated, and service of a copy of which was the proper citation (2). But the mere service of an unnecessary citation along with the summons in such a case, will not nullify the service if it be not misleading (3). The same magistrate who signs the warrant need need not try case. not try the case (4). All objections to competency and relevancy, and all requests for delay, &c., must be recorded, and the deliverances thereon signed by the magistrates (5). But where the objection was recorded and signed, and the deliverance on it was expressly implied in the subsequent proceedings, the fact that therewas no special signed deliverance was not held 1 Doward v. Mackay, H.C., July 29th 1870; 1 Couper 392 and 42 S. J. 305 and 7 S. L. R. 265. 2 Waddell v. Romanes, H.C., March 4th 1857; 2 Irv. 611 and 29 S. J. 291. 3 Harcourt and Priestly v. Low, H.C., Jan. 14th 1861; 4 Irv. 1 and 33 S. J. 131. 4 Leadbetter v. The Garnkirk Coal Coy. and Miller, H.C., Dec. 6th 1841; 2 Swin. 620 and Bell's Notes 126.-Tough v. Jopp, Aberdeen, April 28th 1863; 4 Irv. 366 and 35 S. J. 472. 5 Giles v. Baxter, H.C., March 15th 1849; J. Shaw, 203.-Christie v. Adamson, Perth, Oct. 1st 1853; 1 Irv. 293.-M'Vie and Lynch v. Dykes, H.C., May 28th 1856; 2 Irv. 429 and 28 S. J. 416. |