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Housebreaking with intent to steal may be aggra- AGGRAVATION, vated by previous conviction, but it is not an aggravation that the accused is habit and repute a thief, or has been convicted of theft (1). Assuming that shipbreaking with intent is a relevant charge, it may be a question whether a previous conviction of housebreaking can be charged in a case of shipbreaking and

vice versa.

The punishment is either imprisonment or penal PUNISHMENT, servitude according to circumstances. Under the Statute against breaking into buildings to destroy goods above referred to, a capital sentence is competent. No such case has occurred for a long time, but according to the practice in analogous cases, a capital sentence would not now be demanded by the Crown.



This charge does not seem ever to have been sus- QUESTION
tained. In two cases the charge was withdrawn (2).
There appears to be no reason for holding it to be
irrelevant. In some cases, the proof of the intent
would be difficult, e.g., if a servant were detected
using a key to open a desk, there might be doubt
whether there was theftuous intent, as distinguished
from mere indulgence of curiosity. But it is easy to
suppose a case where there could be a doubt, e.g., if
a stranger were caught in a house, having just burst
a lock, or opened it with a skeleton key. The
question of intent is one of evidence, and there seems

1 Geo. Buckley, H.C., July 12th 1822; Shaw 73.

2 Allan Lawrie, H.C., July 14th 1837; 2 Swin. 101 note & Bell's Notes 40.-Will. Mickel, Jedburgh, April 23d 1844; 2 Broun 175. There are two indictments for this offence

prior to these dates in the Advocates'
Library Collection. The only case
subsequent to the above is that of
Jas. M'Ghee, Perth, April 1849, (un-
reported) where a plea was ten-
dered, but whether to this part of
the charge has not been ascertained.




Attempt to steal" is not relevant (1). But it has been held that in police courts such an offence as Attempt to pick "attempting to pick pockets" may be punished (2).

no reason why the possibility of a difficulty in proof should affect the relevancy of a charge, if it plainly implies what is criminal.

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By statute attempt to steal oysters (3) or mussels (4) from beds belonging to others is punishable by fine or imprisonment, or both, the imprisonment not to exceed three months.

Oysters or




All unauthorized removal of bodies from graves is criminal (5). If the body be at all moved from its resting-place, the crime is complete (6). But though the delinquent be scared or captured before he has reached or touched the body, he may be punished for the attempt (7). In both cases the punishment is discretionary.

1 Walter D. Ure, H.C., Feb. 15th 1858; 3 Irv. 10 and 30 S. J. 310.See also Jean M'Lean, Glasgow, Dec. 21st 1829; 5 Deas and Anderson 145.

2 Jackson v. Linton, H.C., Feb. 27th 1860; 3 Irv. 563.-The case of Etch and Golph v. Burnett, H.C., March 15th 1849; J. Shaw 201, would be to some extent an authority on this point were it not for the manifest inaccuracy of the report, which was commented on in Coyle v. M'Kenna, H.C., Nov. 21st 1859; 3 Irv. 452 and 32 S. J. 4.

3 Act 3 & 4 Vict. c. 74.-Rob. Thompson and Geo. Mackenzie, H.C., Dec. 26th 1842; 1 Broun 475. 4 Act 10 and 11 Vict. c. 92.

5 Hume i. 85, and case of Samuel there, and cases of Begg: Pattison and others: Campbell and others: Wilson: Lawrie: Miller and Hodge: and Stevenson or Hodge in notes 1 and *.-Alison i. 461, 462. 6 Alison i. 463.

7 Alison i. 463.-Geo. Campbell and others, H.C., June 21st 1819; Shaw 1 and Hume i. 85 note-John M'Quilken, H.C., Feb. 11th 1828; Syme 321.




Falsehood and Fraud is chosen as the heading of DIFFERENT the present chapter, as being the most comprehensive FALSEHOUD. term (1), embracing all offences which consist in fraudulent deception. But in practice various terms are used.

" Forgery” is generally applied to the case of false writings, though the term “ falsehood, fraud, and wilful imposition,” and the term “ falsehood ” alone, are sometimes properly employed in reference to writings. When the words falsehood, fraud, and wilful imposition are placed together, they are held to describe one offence. But any one of the three terms implies crime by itself (2). Accordingly numerous charges of falsehood alone, and of fraud alone, and of falsehood and fraud without wilful imposition, have occurred. The expression Swindling is Term swindling. one not well known in the law of Scotland, and an attempt made to introduce it was discouraged by the Court.

Those falsehoods which consist in the use of false FalseHOOD BY writings, fall to be noticed first. In doing so, it is necessary to explain the use of the word false as Meaning of word applied to writings. A writ is false in law not by to writings. containing falsehoods, but by bearing to be what it is not. If a person write and utter a letter as his own, it is genuine, though it contain falsehoods (3). But if he fabricate a document as being that of another, and utter it as such, it is a false writing, though it contain no untruths. For example, if a person have lost an I. O. U. and fabricate another, the statement


false as applied

1 See Duncan Stalker and Thos. W. Cuthbert, H.C., January 22d 1844; 2 Broun 70 (Lord Justice Clerk Hope's opinion).

2 Will. Hamilton, July 12th 1831; Bell's Notes 33. – Jas. Maitland, H.C., Feb. 7th 1842; 1 Broun 57

and Bell's Notes 63.-There are
several other cases to the same
effect in Bell's Notes 63.

3 Simon Fraser, H.C., Nov. 21st
and Dec. 5th 1859 ; 3 Irv. 467 and
32 S. J. 148 (Lord Justice Clerk
Inglis' opinion).


preparatory step.

in it is true, but the document itself is false. It is of importance to observe this distinction, as it generally settles to what category a case belongs. To crimes of this class two things are essential; first, that a writ be false; second, that it be feloniously used as genuine. Fabrication only Except in certain statutory cases the fabricating is only a step to the crime (1). The theory is that a false writ has been made by the accused or some one else, no matter who, and that the accused was guilty of using it knowingly as genuine. Therefore in what follows, wherever acts of making false writs are spoken of as criminal, it must be understood that the attempted use is assumed as following the fabrication. As regards the fabrication, it does not matter whether it be done with pen and ink, or by engraving, or any other process (2), nor though the execution be very clumsy (3), or the document be badly framed, or the signature misspelled. Even the substitution of one Christian name for another, or the omission or addition of a name, to the name of the person whose deed it is intended to forge is immaNot less criminal terial (4). Further, it does not matter though the

because invalid for want o stamp.

document be deficient in statutory or other solemnities, as by being written on unstamped paper, or on a wrong stamp. The writing may be of the most



Mode of fabrication or badness of execution immaterial.

1 Michael Hinchy, Perth, Sept. 30th 1864; 4 Irv. 561 and 37 S. J. 24.

2 Burnett 181, and case of Scott and Adamson there, and Hume i. 141, note 4.

3 John M'Lennan and Kenneth Mackenzie, Inverness, April 1840; Bell's Notes 56.-In the case of Peter Ross or M'William, Inverness, Sept. 14th 1849, it was objected to the relevancy, "that the "writing, ex facie, could not be "supposed by anybody to be a "genuine document." The ob

jection was repelled. Such a fact is matter of observation only for the jury. Lord Cockburn's MSS.

4 Hume i. 141, case of Nisbet there, and cases of Elliot and Davidson in note 1. (In reference to the case of Elliot there seems to be some confusion. While Hume gives this name to the case, Burnett, evidently referring to the same case, gives it the name of Myndham.-Burnett 181.)-Alison i. 371, 372, and case of Gillespie there.

Or because of


prejudice inte


informal kind, such as a letter or receipt (1). And Requisites of though it be one which, if genuine, would not be available for any practical purpose in Scotland, it may no force in still give rise to a criminal charge. Where a party swore that he had an English diploma, and when charged with perjury produced a forged one, he was held properly charged with forgery (2). All that is Use tending to necessary is that use should be knowingly made of a rests of others false writing, of however common a character, or however deficient in solemnities, as a true writ, and that the use should tend to prejudice the interests of others (3). And this result is presumed where the law presumes false writ has any real and serious purpose (4), though pose serious.

prejudice it purthere be no gain to the guilty party (5). To make a false receipt in place of a lost one, is criminal, and it is no defence that the money referred to in it was paid (6). To place a false signature on a bank- Forgery where receipt is forgery, though such signature was unne- necessary. cessary (7)

Falsehood by writ divides itself into, I. Forgery ; Division of the II. Falsehood by fabricating writings where there is no forgery. In both crimes there are two elements the fabrication and the uttering. I. FORGERY. This is the making and publishing ForGERY.

. of a writing as the genuine signed writ of any one, when in truth it is not so (8). The word forgery as a nomen juris may be applied :

First, where the whole document, corpus and Whole document signature—is fabricated.

Second, where the signature alone is simulated.

Third, where a writing is placed above a genuine Trne signature signature, without the authority of the subscriber, or

signature un



Signature forged.

improperly used.

1 Hume i. 146, 147.-Alison i. 382, 383.

2 James Myles, H.C., Jan. 7th 1848 ; Ark. 400.

3 Hume i. 150.

4 Will. Rhind, Perth, Sept. 26th 1860; 3 Irv. 613.

5 Hume i. 172, case of Grant in pote 2.- John Smith, H.C., Dec. 21st 1852; 1 Irv. 125.

6 Hume i. 154, 155.

7 John Henderson, Perth, Sept. 8th 1830 ; 5 Deas and Anderson 151.

8 Hume i. 140.-Alison i. 371.

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