defences. In this indictment there were two prisoners named, but these
two prisoners did not appear on the face of it to have any connection
with each other. The major proposition contained a simple charge of
murder, without specifying any aggravation. In the minor proposition,
however, there were three distinct and totally unconnected charges of
murder. The first was against Burke alone, and was charged as having
been committed in April last, in a house in the Canongate. But it was
not stated that he had any accomplices. He was the sole person charged
with that offence. It appeared, indeed, from the description of the
crime, that he was charged “with the wicked, aforethought purpose
and intent, of disposing of and selling the body, when murdered, as
a subject for dissection, or with some other wicked and felonious
purpose and intent to the Prosecutor unknown.” But, while, on the one
hand, there was no aggravation laid in the major proposition; yet
on the other the Prosecutor did not confine himself to one species
of intent, but libelled two--the intent to sell the body to the
surgeons, and some other sort of vague undefined species of intent to
the Prosecutor himself unknown. The second article in the indictment
charged another murder, alleged to have been committed in the month
of October, in a place called Tanner’s Close, in Wester Portsburgh.
In this charge also William Burke is the only person accused of that
offence, and the intent laid is the same as in the former instance.
Then there was a charge of a third murder, committed at a different
place and time, viz. at a house in Portsburgh on the 31st October;
in which charge both William Burke and Helen M‘Dougal were included:
and, after describing the offence, the intent libelled is the same as
in the two former cases. Thus we had three murders charged against
the prisoners; two against Burke alone, and one against Burke in
conjunction with M‘Dougal; all of which were committed at different
times and in different places, without any connection whatever between
them: and these charges were laid without any aggravation. Then five
different declarations by Burke, and two by M‘Dougal, were also
libelled on, together with eight articles to be adduced as evidence
against the former, and six against both; and in addition to all this,
they were served with a list of fifty-five witnesses by whom these
different and totally unconnected charges were to be proved. Now the
question was, whether this charge, involving such an accumulation
of unconnected offences, was consistent with our practice, with the
humane principles of our law, and with that sound and proper discretion
which the Court was not only entitled, but bound to exercise. But
the first and most material point was, whether the prisoners would
suffer prejudice by the mode in which the libel had been framed;
for if that could be made out, it would justify their Lordships in
the exercise of the discretion with which they were entrusted, in
separating the different charges, or in selecting one prisoner, and
postponing another, according to the circumstances of the case. The
question then was, whether the prisoners would suffer prejudice in
going to trial with the libel as it now stood. And, in considering
this, it would be observed that it was not charged that there was any
natural connection between the crimes committed. There was certainly
none in law; and with the exception of the mode of the murder and the
intent, there was not the slightest pretence for saying there was any
connection between them. But the intent was not laid absolutely and
peremptorily. It was conditional: “Either you committed these acts with
the wicked, aforethought purpose and intent of selling the bodies to
the surgeons for dissection, or with some other purpose or intent to
the Prosecutor unknown.” This indeed would compel the Prosecutor to
prove that the murder was committed for the purpose of handing over
the bodies to dissection; but he might also bring in under it a very
different purpose or object, as, for example, that it was done for
the purpose of robbery, or to gratify private revenge. In the major
proposition, however, there was no aggravation; and it was not said
that there had been any conspiracy, that these murders were part of
a system; they were laid as three unconnected offences, committed at
different times and at different places. Now he prayed their Lordships
to keep in mind that murder was not like any of the other offences
which usually occurred in the practice of the Supreme Criminal Court;
it was one which, in every case, when brought home to a pannel, was
visited with the highest punishment of the law; and therefore it
differed from all the offences to which it was sometimes likened, and
required greater caution on the part of those by whom it was to be
tried. As applicable to the case of Burke, however, three murders were
charged; and this charge was calculated in the most serious degree to
prejudice him. Each specific offence, it might be said, would require
to be supported by its own specific evidence; but it was impossible to
find any jury so dispassionate as not to borrow some light from the
one to enable them to decide on the other; it was impossible for the
jury to separate the evidence in one case from that in another; it
was impossible that one murder not proved could be separated from any
light thrown upon it by another not proved; nay, though neither the
one nor the other might be proved, it might still be held, that upon
the whole, from the massing or blending of unconnected acts, enough
was made out to warrant a conviction. And all this was aggravated by
the prejudice arising from the manner in which the alleged murders
were said to have been committed, and in regard to which so strong
a degree of excitement existed in the public mind. Then observe the
oppression in the preparation of the trial; observe the situation in
which the pannels were placed. Three murders were charged, with a
list of fifty-five witnesses; besides seven declarations, five by the
one, and two by the other. One set, it might be said, was against one
prisoner, and the other against the other; but it was impossible so to
separate, or to analyse the evidence as not to admit against the one
evidence which was calculated to affect the other; and by thus mixing
up and massing together the whole into an unnecessary accumulation of
crime, to come to the same conclusion in regard to both. Look to the
case of Helen M‘Dougal, and it will be seen the prejudice must operate
still more strongly against her. She is accused of only one crime, and
it is not said that she had any connection with the others. But this
charge of murder, committed in the latter end of October, is brought
to trial, combined with two others committed, one in April, six months
previously, and the other in the beginning of October. Where is this
to stop? If the Prosecutor is allowed to proceed in this way, may he
not on the same principle combine ten murders against ten prisoners,
accused of ten different offences, committed in as many different
counties? He submitted that there must be some limitation; and the
question was, whether the Court could sustain the present charge by
which one individual, accused of one offence, is mixed up with another,
accused of two, with which she is not alleged to have had any concern.
Imagine this case. At the end of the indictment, eight articles were
specified against Burke, and six more against Burke and M‘Dougal
conjointly. Take the first--the skirt of a gown--and suppose it proved
against Burke alone. It could not be adduced as evidence against Helen
M‘Dougal. But suppose it was traced into her possession, and that
a witness was called to prove that it belonged to Mary Paterson or
Mitchell. This would be conclusive as to M‘Dougal’s connection with
Burke. But it might be said that the Judge would tell the Jury to
strike this out of their notes. That was an easy operation; but could
they strike it out of their minds as easily as out of their notes? Then
in what circumstances would Helen M‘Dougal be placed? An article not
libelled against her would be checkmate to her defence. She would be
taken by surprise,--she would be thrown off her guard; and although the
gown had come fairly and honestly into her possession she could produce
no evidence to instruct the fact. He put this as an illustration. So
far as the female prisoner was concerned it would be fatal.
But was this a legal proceeding? If there be a prejudice existing,
the prisoner is entitled to the fairest possible defence. The more
atrocious the offence, the more guarded and cautious ought to be the
modes of procedure. So far, however, as they could discover from the
records of the Court, this was the first case in which it had been
attempted to charge three murders in the same indictment. There had
been several instances of three persons slain at the same time, as in
the Aberdeen riots, by a discharge of musketry, and in the case where
a whole family was poisoned: these, however, as Mr. Hume observed,
were all parts of the same foul and atrocious offence. But there was no
example, in the history of the Court, of combining three unconnected
offences against one person; far less of combining three against one
person who was not alleged to have any connection with two of them,
and was only implicated in a third, which had no manner of connection
with those which preceded it. Sir George Mackenzie, who would not be
suspected of any partiality to the prisoner, laid down the principle
most clearly, that different parties ought not to be thus combined in
an indictment. “A person accused,” says he, “was not obliged to answer
of old but for one crime in one day, except where there were several
pursuers, _Quoniam Attachiamenta, cap._ 65. by which, accumulation
of crimes was expressly unlawful, _sed hodie aliter obtinet_, for
now there is nothing more ordinar nor to see five or six persons in
one summonds or indictment; and to see one accuser pursue several
summondses; and yet seeing crimes are of so great consequence to the
defender, and are of so great intricacy, it appears most unreasonable
that a defender should be burthened with more than one defence at once;
and it appears that accumulation of crimes is intended, either to læse
the fame of the defender, or to distract him in his defence.” Title 19,
§ 7. Here the principle was brought out in the clearest manner--that
salutary principle which says that no man ought to be called upon to
answer to more than one crime in one libel; since the accumulation of
crimes was calculated “either to læse the fame of the prisoner, or to
distract him in his defence.” The learned Counsel then referred to the
work of Mr. Baron Hume. That learned author treats of the accumulation
of crimes under different heads: first, of those which are of one
name and species, and of one class and general description; secondly,
of those criminal acts, though of different kinds and appellations,
have a natural relation and dependence; and, thirdly, of that sort
of _cumulatio actionum_, which consists in the charging of _several
persons_ in the same libel _with separate and unconnected crimes_. The
first of these, he argued, had no relation to the present case, because
it did not include murder. All the cases referred to were cases of
housebreaking and theft; and though the former was a capital offence,
yet it was a very different one from murder. No case of the latter
was indeed quoted. The author treated merely of connected crimes, as
robbery and murder. But no injury was done by such accumulation. They
were parts of the same foul and atrocious proceeding, and they had a
natural and necessary dependence. But in the present case there was no
natural dependence, and not even an allegation that the prisoners were
connected.
He then proceeded to the consideration of heterogenous charges, as
of murder and of theft. Some of these, he said, were not cases to
be followed at the present day: and he instanced that of Walter
Buchanan, who was accused of ten different crimes in one libel; namely,
fire-raising, attempts at fire-raising, attempts to poison, theft,
reset of theft, the harbouring, out-hounding, and maintaining of
thieves and robbers, sorning and levying black mail, and killing and
eating of other people’s sheep. Here, however, the Lords restricted
the trial to the more special charges. He now came to the principle,
and mentioned a case in 1784, when the Lord Advocate did depart from
several of the charges. In regard to accumulation of parties, Mr. Hume
put a case of several persons being called to answer in one libel for
the same fact; but then, observe the remedy. “On any occasion when they
see cause, especially if it appear that the Prosecutor meant to lay the
pannels under this disadvantage (he begged to disclaim any insinuation
that such was the intention of the Prosecutor in the present instance,)
the Court may and will separate the trials of the several culprits,
and send those to an assize, in the first place, by themselves, who
are meant to be called as witnesses for the others,” vol. ii. p. 170.
The learned Counsel then proceeded to the third sort of _cumulatio
actionum_, that of charging several persons in the same libel with
separate and unconnected offences, and contended very ably that the
case before the Court fell under this description.
In conclusion, he referred to the English practice as illustrative
of the principle for which he had been contending, and referred to a
decision of Lord Ellenborough, as reported in Campbell, vol. ii. p.
131, and also to the authority of Chitty, vol. i. p. 252. By the law
of England, two felonies may be combined in one charge against two
separate prisoners; but it is usual for the Judge, in his discretion,
to call upon the prosecutor to make his election, and to proceed with
a specific charge against one individual. In point of law they may
be combined, but the judges in their discretion separate them; and
for this reason among others, that the combination would prejudice
prisoners in their challenge of the jury.
The LORD ADVOCATE replied at some length. After complimenting the
learned counsel who had just concluded, on the able manner in which
he had opened the objections submitted to the consideration of the
Court, he stated that he thought them ill-founded. His learned friend
mixed up two objections altogether different. His first objection was
to bringing two prisoners to trial in the same indictment, and his
second to charging three different crimes in that indictment. He would
deal very shortly with the first. The woman was charged as having
been concerned with the man in one of the three murders. And this was
sanctioned by the law of the land. He put her in the indictment that
she might _not_ be prejudiced. If she had been put into a separate
indictment, the public would have known the whole evidence before she
had been put upon her trial, and the prisoner would have had the best
possible reason to complain. This would have been the case had he first
brought the man to trial, and afterwards the woman, adducing against
her the same, or nearly the same evidence, which had previously been
adduced against the man. It was to obviate this, and to prevent her
from being prejudiced, that he had put her in the same indictment. “God
forbid,” said his Lordship, “that any person holding the situation I
do, should do any thing to prejudice a prisoner on his trial.” The
very contrary motive had guided him; but if he proceeded not against
the woman to-day, he would ten days hence, when she could not insist
on that which she now says will prejudice her. Nor, in a case of this
sort, would he be restrained from doing his duty to the country by any
consideration founded upon what were called the interests of science.
It was enough for him that a great crime had been committed; a crime
unheard of before in any civilized country: that the public mind had in
consequence become strongly agitated; and that the duty he owed to the
country left him no alternative. He was determined therefore to probe
and sift the whole matter to the bottom; nothing should deter him from
doing so; and he repeated, that if he was compelled to desert the diet
against this woman now, he would infallibly bring her to trial ten days
hence. Then she would find whether she had been prejudiced by the whole
evidence in this case having gone abroad to the world.
The libel charged three separate acts; and in the major proposition
the crime specified was murder without any aggravation. These murders
were detached, as having taken place within the last six months; but
they were all committed in Edinburgh, and all were charged as having
been perpetrated with the same intent, which however is no aggravation.
Murder, indeed, could scarcely admit of aggravation. When a prosecutor
libels a positive intent, he is tied down to that, and there is no
alternative. These cases were all of the same description--all murders,
and all committed with the same intent. He admitted, that looking to
the proceedings of the Criminal Court, it might be impossible to find a
case of three murders combined in one indictment; but the present was
a case unprecedented in the annals of this or of any other civilized
country. There were numerous examples, however, where different
charges were combined in the same libel. The passage quoted from
Sir George Mackenzie did not apply to the case before the Court. It
referred to a case of a nature totally different. He then quoted Hume
II. 166, and maintained, upon his authority, that the crimes charged
being all of the same name and species, might properly be included
in the same indictment. It would indeed be dreadful if a prisoner,
after having committed three murders, could only be tried for one
of them. Mr. Hume referred to the case of James Inglis, tried upon
three charges of horse-stealing, each of which, if proved, involved
a capital punishment. Now, would not every argument which had been
employed against the present libel apply to such a charge? Again, two
acts of highway robbery were charged in the same indictment, any one
of which would have been sufficient, if proved, to lead to a capital
conviction. The whole tenor of our practice, indeed, confirmed this
mode of procedure, and, if the contrary obtained--if charges of the
same nature and description were put in separate indictments, prisoners
would be exposed to the intolerable hardship of undergoing trial day
after day; a hardship which he conceived would be incomparably greater
than any that could possibly arise from the practice now complained
of. He then referred to the case of Nairne and Ogilvie. Here it had
been objected that there was a _cumulatio actionum_, but the
objection had been repelled. His Lordship then cited the case of James
Morton tried at the Glasgow Circuit in 1823 on four separate acts; of
Donaldson Buchanan also tried there for stouthrief, housebreaking and
theft (all separate acts); of Beaumont, tried at Aberdeen in 1826,
where six acts of housebreaking were charged; and of Gillespie, tried
at Aberdeen in 1827, upon no less than nine separate acts of forgery.
His Lordship then quoted the case of Surridge and Dempster, indicted
for two separate acts of murder, committed indeed at the short interval
of an hour, but still in all respects completely separate acts. Upon
the strength of these consecutive authorities, all of which went to
support the principle for which he contended, his Lordship submitted
that the objection ought to be repelled.