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“ List of Witnesses. "1. John William Thomson, esquire, sheriff-substitute of Forfar
shire. “2. William Bishop Dunbar, now or lately assistant procurator-fiscal
of Forfarshire. "3. William Macqueen, now or lately clerk to the sheriff-clerk of
Forfarshire. "4. James Dow, now or lately sheriff criminal-officer in Dundee. "5. Sarah Ann Harvey or Rose, now or lately residing with Sophia
Gover or Harvey, a widow, in or near Pile Street, in the parish of
“JOHN MILLAR, A.D." The following is the form of criminal letters in the Sheriffs’ Court:
"Frederick Lewis Maitland Heriot, Esquire, advocate, Sheriff of Forfarshire, to
messengers-at-arms and officers of said shire, executors hereof, conjunctly and severally, specially constituted, greeting ; Whereas it is humbly meant and complained to me by John Boyd Baxter, procurator-fiscal of Forfarshire, for the public interest, upon and against Margaret Taggart, now or lately prisoner in the prison of Dundee : That albeit by the laws of this, and of every other well-governed realm, theft, especially when committed by means of housebreaking, is a crime of a heinous nature and severely punishable: Yet true it is and of verity, that the said Margaret Taggart is guilty of the said crime of theft, aggravated as aforesaid, actor or art and part: In so far as, on the 6th day of March, 1866,
[Tuesday. or on one or other of the days of that month, or of February immediately preceding, or of April immediately following, the said Margaret Taggart did wickedly and feloniously break into and enter the horse at Liff Road, Lochee, possessed by Ann O'Brien or McAvany, widow, residing there, by breaking a pane of glass in a window of said house, inserting her hand and unfastening a sneck or catch securing said window inside, raising the under sash of said window and going in thereat; and having thus, or otherwise to the
* See Alison, P. C. L., 212. VOL. XXIII.-NO. XLV.
prosecutor unknown, broken into and entered said house, the said Margaret Taggart did wickedly and feloniously steal, and theftuously away-take therefrom,
A pair of blankets and
A piece of cloth, or part of a window blind, the property or in the lawful possession of the said Ann O'Brien or McAvany : And the said Margaret Taggart having been apprehended and taken before George Ramsay Ogilvy, Esquire, Advocate, Sheriff-Substitute of Forfarshire, did, in his presence, at Dundee, on the
6th day of July, 1866, emit a declaration, which was, in her presence, subscribed by the said George Ramsay Ogilvy, Esquire, she having declared she could not write: Which declaration ; as also the stolen property above libelled, or part thereof, being to be used in evidence against the said Margaret Taggart, at her trial, will, for that purpose, be in due time lodged in the hands of the clerk of the Sheriff Court of Forfarshire, at Dundee (before which Court the said Margaret Taggart is to be tried), in order that she may have an opportunity of seeing the
All which, or part thereof, being found proven by the judicial confession of the said Margaret Taggart, before me and my substitute, or either of us, in a criminal court to be held by us, or either of us, within the ordinary Sheriff Court Room of Dundee, upon the 1st day of August, 1866 years, for the first diet ; or, being found proven by the judicial confession of the said Margaret Taggart, or by the verdict of an assize, before us, or either of us,
in a criminal court to be held by us, or either of us, at the same place, and upon the 17th day of August, 1866 years, for the second diet, the said Margaret Taggart ought to be punished with the pains of law, to deter others from committing the like crimes in all time coming. Herefore it is my will, and I command you that on sight hereof ye pass, and in Her Majesty's name and authority, and mine, lawfully summon, warn, and charge the said Margaret Taggart to compear personally before me, or any of my Substitutes, in a court to be holden by us, or any of us, at Dundee, upon the
1st day of August, 1866 years, (*) * See the 16 & 17 Vict., c. 80, s. 35, as to the two days of appearance post.
in the hour of cause, at twelve o'clock nocn, for the first diet ; there to plead guilty or not guilty and to underlye the law for the crime above libelled ; And also, if required, upon the
17th day of August, 1866 years, (*) for the second diet, at eleven o'clock forenoon, again to plead guilty or not guilty, and to underlye the law as aforesaid : As also, if required, for the said second diet alternately, that ye summon an assize hereto, being not fewer than the number of forty-five persons, together with such witnesses as best know the verity of the premises, whose names are hereto subjoined in a list, subscribed by or for the Complainer, personally, or at their dwelling-places, all to compear before me, or any of my Substitutes, time and place of said second diet of compearance,—the said persons of inquest to pass upon the assize of the said Margaret Taggart, and the said witnesses to bear leal and soothfast witnessing, in so far as they know, or shall be asked at them, anent the said Margaret Taggart's guiltiness of the crime above libelled; Each assizer and witness under the pain of one hundred merks Scots : Farther, that ye deliver to the said Margaret Taggart if personally apprehended, and if not, that ye leave for her, at her dwelling-place, and also at the Market Cross of Forfar, the head burgh of the shire of Forfar, a full double of the foregoing libel, and of the list of witnesses hereto annexed, and of the list of said assize. According to justice : With certification, &c. Given at Dundee, the Twenty-third day of July, one thousand eight hundred and sixty-six years.
• (Signed) ALEX. MOFFAT,
“ Dep. Sheriff Clerk.” Then follows the list of the witnesses, and after them, the list of the assize for the trial of the prisoner, including both the special jurors and the common jurors, each described by his calling and place of abode.t
Writing in 1853 Sir A. Alison said, that in indictments, and criminal letters, the same minute and scrupulous accuracy
is required which is exacted in an English prosecution; and many particulars must be added for the information of the
* See the 16 & 17 Vict., c. 80, s. 35, as to the two days of appearance post.
† See Alison's P. C. L., 214.
prisoner, which are not essential in their practice. In particular, not only the specific offence itself charged, but the mode in which it was committed, must be set forth with, scrupulous accuracy; the place where the crime was committed must be correctly described by its name, parish, and county; all articles to be used in evidence must be minutely and accurately described, and submitted to the inspection of the prisoner previous to his trial; and a list of witnesses must be annexed to the indictment, or criminal letters, containing an accurate description of every witness, by his name, profession, place of
, residence, parish, and county. The smallest error in any of these particulars excludes the prosecutor from that article or witness on the trial.*
And the same learned author tells us that it is well known to all persons acquainted with the Scottish criminal practice, that a great proportion, probably more than a half, of the acquittals in their courts originate in these technical niceties which are unknown in the English practice.f
As in Scotland the prisoner is never confronted with the witnesses till the trial, and therefore is in ignorance of the precise evidence which they are coming to give, it was very reasonable that a more special description should be given of the manner in which it is alleged that the offence had been committed, than where the prisoner had been taken before a magistrate and the witnesses examined in his presence. And this fully accounts for and justifies this particularity of statement, as long as the witnesses are not examined in the presence of the prisoner when he is charged with the offence. And it is but fair to say that this practice forms a very favourable contrast to the ancient practice in England: for no doubt in early times in England the witnesses against a prisoner were not examined in his presence till the trial, and our indictments have never condescended to the particularity of those in Scotland; nay more, in most cases still a prosecutor may, if he think fit,
Alison, P. C. L., 19.
op Ibid, 22.
prefer a bill before the grand jury, without taking the accused before any magistrate. It is equally fair to add that Scotland has set us an excellent example, in giving the accused a copy of the indictment in every case, though, with the full knowledge the prisoner obtains with us of the charge when examined before the magistrate, we think he can rarely, if ever, suffer any inconvenience from the want of a copy of the indictment.
The most marked distinction between the Scottish and English indictments consists in the former being in the form of a syllogism, in which the major proposition states the crime charged either by its legal appellation, if it have one, or by a description of its nature; the minor alleges the defendant's guilt of the offence, and the facts which establish it; and the conclusion infers that he should be punished accordingly. And we learn that any error or omission, which vitiates the regular form of the syllogism, and breaks the coherence and dependence of its several parts upon each other, is a sufficient objection to the libel, and that is the case, even although the error is in an immaterial part, or in those words of style which have been consecrated by the custom and observance of past time.*
A general reference in the major proposition to the laws of the realm is held to imply the whole of the common law, and such statutes as, by their antiquity and universal usage, have passed into the known and customary law of the realm; but where a statute has been passed in modern times, either creating or defining any new offence, or increasing the punishment of an old offence, or giving privileges to the prosecutor in conducting the proof, it is essential, if the pains of the statute are to be invoked, or the facilities of proof taken advantage of, not only that the statute be specially referred to, but the enacting words must be quoted correctly.t
The minor proposition alleges that the prisoner is guilty of
Alison, P. C. L., 220.
+ Ibid, 228.