Court in making any answer to the objection stated, as to the manner in
which the watch and the other articles are described in the indictment,
as I have no hesitation to say that it does not deserve one. All these
articles, as well as the other articles libelled on, have been for weeks
past lying in the hands of the Clerks of Court, where the counsel and
agents for the pannels have had full opportunity of examining and taking
from them whatever description they might think proper.
As to the story of the trunk, it is shortly this: there were two trunks
the property of Mr. Brodie; and one of them, containing linens and other
articles, was, from motives of humanity, allowed to remain in his
possession. This was the trunk referred to in the indictment; the other
was, however, sent by mistake to the Justiciary Office, but as soon as
the error was discovered, Mr. Brodie was applied to to deliver up the
proper trunk. This he refused to do, and therefore it became necessary
to apply to the Sheriff, who granted a warrant; in consequence of which
it was recovered from the prisoner and lodged in the Justiciary Office.
This is the plain state of the fact, and, having laid it before your
Lordships, I do not consider it necessary to add one word more to the
subject.
The LORD ADVOCATE--My Lords, if it had been intended to charge the
prisoners with stealing the watch, or any of the other articles, a more
accurate description might have been necessary, but here there is no
such intention--the crime of which the prisoners are accused is breaking
into the Excise Office.
From the nature of the thing, my Lords, as well as from the tenor of the
indictment, it must be evident to every one that it is only meant to
produce these articles in evidence, to refer to them when the witnesses
are examined. It may be necessary, for example, to prove that certain
letters were found in the chest, and to whom the chest belonged; it is
no matter of what form the chest is, and not of the smallest consequence
whether it is identified or not; nay, more, my Lords, there was no
necessity for producing it at all. If every nail of a trunk or every
trinket of a watch, or other articles which it might be necessary to
found upon in trials of this kind, were to be so particularly described
as Mr. Wight has contended for, it would swell indictments to a very
inconvenient and unnecessary length.
The objection that the proper trunk was not produced in sufficient time
to give the prisoner an opportunity of examining it is certainly a very
uncommon one, when it is considered that it was allowed to remain in his
own possession until yesterday; and with regard to the watch, all the
use I mean to make of it is to identify some letters from Mr. Brodie,
which are sealed with the seal appended to it.
The DEAN OF FACULTY--My Lords, what may be the consequence to the
prisoners at the bar of your Lordships repelling the present objection I
do not know. The gentlemen on the other side of the table have taken
care to lay their indictment in such a manner as to leave the counsel
for the prisoners altogether in the dark as to the nature of the proof
they mean to lead and the manner in which these articles are to be used
in evidence; but, my Lords, sure I am of this, that the decision of the
present question is of the greatest importance to the law of this
country. I am not surprised that the Solicitor-General should say that
he will make no answer to the objection, because I am convinced that it
admits of none.
It is no light matter the framing of an indictment; the specification of
the proofs by which it is to be supported is of the utmost consequence.
I am persuaded, my Lords, that I would have no difficulty to satisfy
your Lordships, from the nature of the thing itself, that this objection
is well founded. But I resort to better evidence. I appeal to the Books
of Adjournal on your Lordships’ table, and I call upon the counsel for
the Crown to point out one single instance recorded in them where
articles have been founded on in an indictment and produced in evidence
without being specially described. Having so respectable an authority as
the uniform practice of your Lordships and your predecessors to support
the objection now stated, you will think well before you introduce an
innovation that may be attended with the most dangerous consequences.
We are told that some of the articles in question are of no consequence;
if so, why are they here? I will not enter into the question whether the
trunk was really produced in the Justiciary Office in proper time or
not, as all the indictment says is, that “it will be produced.”
My Lords, there are two kinds of articles produced in criminal trials,
first the _corpora delicti_, to prove that the crime was actually
committed; and, secondly, articles from which the leading circumstances
are to be inferred. The Lord Advocate admits that the first of these
must be particularly described, but denies the necessity of describing
the second. This is a distinction not known in the law of this country,
and directly contrary to the established forms of criminal procedure.
What would be the consequence were it recognised? Suppose, for instance,
that a person breaks into a house and leaves his hat behind him; nothing
could establish his guilt more clearly than to prove that this hat was
his. But although this is only a leading circumstance, would it be
enough to say that a hat was to be produced in evidence, without
specifying where it was found, or any circumstances attending it, so as
to give the accused an opportunity of proving that it belonged to
another, and not to him?
I will appeal, my Lords, to the practice of the public prosecutor
himself, to show that no such distinction exists. A declaration is an
article used in evidence as well as a gold watch, yet his Lordship does
not think it sufficient to say “a declaration,” without specifying any
other circumstances, such as before whom, and of what date, it was
emitted. On the contrary, there are several declarations referred to in
this indictment, and they are all particularly described. It is the duty
of the public prosecutor to specify every particular, and to say what is
meant to be proved by each article, or in what manner it has been used
in the commission of the crime charged. In the case of Gordon, the
sheep-stealer, a man for whom I was counsel at this bar several years
ago, and who still languishes in prison, notwithstanding his having
received His Majesty’s pardon[1]--your Lordships refused to allow an
article to be produced in evidence which had not been libelled on: and
the articles objected to might as well not have been libelled on at all,
as in the general and vague manner in which they are mentioned in the
indictment.
My Lords, there is another circumstance to which I beg to draw your
Lordships’ particular attention. It is our good fortune to live under a
mild Government; to live in days when there is no danger to be
apprehended from the conduct of the public prosecutor; but worse times
may arrive, and it is for your Lordships to reflect upon what use might
then be made of the present practice if your Lordships were to allow it
to be now introduced. The public prosecutor may, for example, libel upon
a watch, and the Clerk of Court may show one watch in the Justiciary
Office to the prisoner’s counsel or agent, and against the day of trial
may produce another in Court. The principal reason why articles such as
the present are mentioned in the indictment is that the prisoner may be
certain that these articles, and these articles alone, are to be used in
evidence against him; and it is clear that this certainty must be
withdrawn from the prisoner if a vague description is permitted to be
given of them, because, as I have already mentioned, others may be
substituted in their place. If an article of evidence be not
particularly described so as to prevent the possibility of doubt with
regard to the identity of it, the dearest rights of mankind might be
endangered and at the mercy of corrupt men, and no one could say how
fatal the consequences might be.
The LORD ADVOCATE--My Lords, I admit the justice of what the Dean of
Faculty has stated if such an objection as the present were made to the
description of the _corpora delicti_. If the prisoners were charged with
having stolen the watch or trunk mentioned in the indictment, the
description there given of them would not be sufficient; but, as they
are not the _corpora delicti_, and are only referred to as circumstances
of evidence, I contend that the description is sufficient; but, rather
than detain the Court longer with an objection of this kind, I will give
up the trunk altogether, as I do not suppose that I shall stand in need
of it; I, however, submit the matter to the Court.
The LORD JUSTICE-CLERK--Your Lordships have heard the objection and
answers on this point. What is your opinion?
Lord HAILES--My Lords, there is no objection made to the production of
the different papers founded on in the indictment, and I do not perceive
that there is any force in the objection as to the gold watch; because,
although the pannel’s counsel cannot know, from the manner in which it
is described in the indictment, what is meant to be proved by it,
neither do they know what is intended to be proved by the different
witnesses who are cited.
The objection with regard to the trunk appears to me to be much more
strong; and I confess that I never saw any article so vaguely stated in
an indictment as it is in the present case, viz., “a trunk containing
various articles.” It is no good answer to the objection that the proper
trunk was not timeously produced, that it was allowed to remain in
Brodie’s possession, because that article is founded on in the libel
against Smith as well as against him. I am therefore inclined to sustain
the objection as to the trunk, but no further.
Lord ESKGROVE--My Lords, I am not disposed to abridge in the smallest
degree the security of the subjects of this country, although the law is
here more attentive to the safety of persons accused than in any other
country whatever. Here the pannel must not only be furnished with the
names and designations of the witnesses, but he must also be made
acquainted with every document and article to be used in evidence
against him.
In the present case there are a number of writings, and likewise a
variety of articles, founded on in the indictment; there is no objection
to the production of the papers, but it is objected on the part of the
pannel that the other articles are not particularly described. I do not
think, my Lords, that this objection is much aided by the argument
founded on the declarations and other parts of the libel being more
particularly described than these articles.
The Dean of Faculty has referred your Lordships to the Books of
Adjournal, from which he says that it appears to have been the practice
to describe such articles more minutely; but I have no doubt that a
perusal of these books would furnish many instances where articles have
been described as loosely as they are said to be in the present libel;
and, my Lords, as the pannel’s counsel have neither produced, nor
offered to produce, any decision of this Court finding libels irrelevant
from the articles referred to in them being thus described, I am bound
to hold the objection to be of no force.
My Lords, I can see no injury that will be sustained by the prisoners by
the repelling of the present objection; all the articles were lodged in
the hands of the Clerk of Court, and their agent and counsel had an
opportunity of examining them. The trunk is no doubt vaguely described,
but that appears to me not to be material, because it will not be
sufficient for a witness to say that he found papers or other articles
in a trunk; he must say that he found them in the trunk shown to him in
Court, otherwise his evidence in that particular will be of no
consequence. If the pannels should say that this is a different trunk,
and that they never saw it before, I would listen to the objection; but
as they cannot, and as I can figure no injury to the prisoners in
repelling this objection, I am for over-ruling it.
Lord STONEFIELD--My Lords, I think the description in this case is
sufficiently full; therefore I am for repelling the objection.
Lord SWINTON--My Lords, the present objection is made in the wrong
place; and I cannot so well judge of it in this general shape as I
could have done had it been stated when the particular articles came to
be used in evidence; but I must judge of it in the form in which it has
been brought before the Court.
I think, my Lords, that it ought to be repelled for the reasons your
Lordships have already heard, and because no injury can be done to the
pannels from these articles not having been more particularly described,
as they will have an opportunity of traversing the evidence that may be
brought relating to them. There are many of the articles, such as two
iron wedges, an iron crow, &c., that would not admit of a more
particular description than has been given. Upon the whole, my Lords, I
am for repelling the objection.
The LORD JUSTICE-CLERK--My Lords, the present question is of great
importance to the law of this country. I am one of those who are always
for giving fair-play to pannels, and will never allow any advantage to
be taken of them; but I am likewise for giving fair-play to evidence. It
is frequently necessary, my Lords, that the testimony of witnesses
should be elucidated by articles referred to being produced; but if the
present objections were sustained, I am afraid it would strike against
the admissibility of this kind of evidence altogether; because, let a
public prosecutor describe such articles with the greatest attention, it
still may be contended that they admitted of a more accurate description
than the one given.
By the former state of our law the prosecutor was not allowed to prove
anything that was not particularly specified in the libel; but the Act
153, Parliament 11th, James VI., was introduced to obviate this defect
in our law, and by that Act the prosecutor is allowed to prove every
circumstance to substantiate the charge, or in general art and part of
the charge. It is very true, my Lords, that the humanity of public
prosecutors of late years has induced them to be more special than they
had any occasion to be, but surely they are not cut off from the
generality allowed them by law, although such generality may have been
deviated from through lenity in practice. Apply this to the present
case. It is true that the Lord Advocate, as public prosecutor, has been
induced to state particular circumstances, and to specify the articles
to be founded on; yet that does not alter the law, nor deprive him of
the generality which he is allowed by law. As the names of witnesses are
given, without specifying what they are to say, in the same way it is
only necessary to state that such articles are to be produced in
evidence, but not necessary to specify a description of them; and it is
the duty of the prisoner himself, or those who act for him, to survey
them when lodged in the Justiciary Office. As there is no precise time
against which articles to be founded on are required to be lodged in
the Justiciary Office, there appears to be no undue delay in lodging
this trunk. Had it been pled that it was not lodged _debito tempore_,
and that the pannel had been injured thereby, then a delay of the trial
must have taken place.
I remember it once happened on a circuit that the articles founded on in
the libel were only lodged the very morning of the trial in the Clerk’s
hands; but I then refused to allow them to be founded on, because the
pannel had not a reasonable time to prepare himself against evidence
that might arise from the production of these articles; but the present
case is very different, and therefore, upon the whole, I am for
repelling the objection.
Mr. JOHN CLERK--My Lord Justice-Clerk, before the interlocutor is
written out, I beg leave to make one objection in behalf of the pannel,
George Smith.
The LORD JUSTICE-CLERK--What! After the Court have delivered their
opinions, it is not decent in you to propose to say anything, and I
apprehend the prisoners are in no danger of suffering anything by your
not being allowed to supply the defects of the Dean of Faculty.
Mr. JOHN CLERK--My Lord, the Dean of Faculty has no authority to plead
for my client.
The DEAN OF FACULTY then moved the Court to allow the general objection
to be entered upon record, and proposed to repeat it and refer to it as
often as any of the particular articles came to be produced in evidence,
which was accordingly agreed to, and the following interlocutor was
pronounced repelling the objection:--
The Lord Justice-Clerk and Lords Commissioners of Justiciary having
considered the foregoing debate, they repel the objection stated to
producing and founding on the articles specified in the objection
and mentioned in the indictment, and allow them to be adduced in
the course of the trial.
ROBT. M‘QUEEN, I.P.D.
The prosecutor, for proof of the indictment, then proceeded to adduce
the following witnesses, who were all lawfully sworn, purged of malice
and partial counsel, and emitted their depositions _viva voce_ in
presence of the Court and jury, without being reduced in writing, in
terms of the late statute.
Evidence for Prosecution.
[Sidenote: William Scott]
1. WILLIAM SCOTT, Procurator-Fiscal of the county of Edinburgh, called
in and sworn.
Examined by Mr. MURRAY--Mr. Scott, you know the prisoners at the bar?
Were you present when they emitted certain declarations before the
Sheriff-depute of Edinburgh and his substitute?
WITNESS--I was.
Mr. MURRAY--Look at these declarations, and tell the Court and the
gentlemen of the jury if they were emitted in your presence by the
pannel, George Smith, freely and voluntarily.
WITNESS--They were; and the prisoner appeared to me at the time cool and
recollected.
Mr. MURRAY--Look at this declaration. Was it emitted in your presence by
the other pannel, William Brodie, freely and voluntarily, and he was
cool and recollected?
WITNESS--It was emitted in my presence freely and voluntarily, and he
was cool and recollected.
Mr. MURRAY--Do you know anything concerning a warrant that was applied
for against William Brodie in the month of March last? If you do, tell
the Court and the gentlemen of the jury what happened in consequence of
it?
WITNESS--Upon the afternoon of Monday, the 10th of March last, I, as
Procurator-Fiscal, gave in a petition in my own name to the Sheriff of
Edinburgh, charging Mr. Brodie with breaking into the Excise Office, and
praying for a warrant to apprehend him. A warrant was accordingly
granted, and search diligently made for him that night, but he was not
found, and I afterwards learned that he had gone off for London on the
day preceding.
Cross-examined by Mr. JOHN CLERK, for George Smith--Mr. Scott, you say
you were present when George Smith emitted the declarations which have
been shown you; did Smith, in the course of his different examinations,
say anything more than is contained in these declarations?
WITNESS--I do not think he did; everything material was taken down. No
compulsion or undue means was used to induce the prisoners to sign these
declarations.
[Sidenote: Joseph Mack]
2. JOSEPH MACK, writer in the Sheriff-Clerk’s Office of Edinburgh,
called in and sworn, and shown the declarations above mentioned.
WITNESS--These declarations were written by me, to the dictation of the
Sheriff, and were emitted by the pannels freely and voluntarily, and the
pannels appeared to me to be cool and recollected when emitting them.
Cross-examined by Mr. JOHN CLERK--Was everything which Smith declared
when examined taken down?
WITNESS--Everything that was material. With regard to the robbery of
Bruce’s shop--[Here the Court stopped the witness, as that was a matter
which was not before them.]
The LORD JUSTICE-CLERK--Did he desire anything to be taken down that was
not?
WITNESS--No.
[Sidenote: Thomas Longlands]
3. THOMAS LONGLANDS, solicitor-at-law in London, called in and sworn.
Examined by MR. WILLIAM TAIT--Mr. Longlands, did you hear of William
Brodie, the prisoner at the bar, having fled from this country in March
last, and of his having been brought back? Tell the Court and the
gentlemen of the jury what you know of the matter?
WITNESS--In the month of June or July last I was employed by the
officers of the Crown for Scotland to take such steps as appeared to me
to be proper for the discovery of Mr. Brodie. In consequence of this
employment I called frequently at the Secretary of State’s Office, and
had several conversations with Mr. Fraser, Under-Secretary in the office
of Lord Carmarthen, and gave them the information I had received from
Scotland. I likewise waited upon Sir Sampson Wright, of the Public
Office, Bow Street, whose assistance I judged necessary to call in as to
the proper measures to be pursued. As the information received gave
reason to suspect that Mr. Brodie was at Flushing, Ostend, or some place
in Holland, it was agreed upon to send a messenger immediately in search
of him. Sir Sampson Wright recommended to me a Mr. Groves from his
office as a proper person to send to the Continent in search of Mr.
Brodie, and I accordingly despatched him with proper instructions. Mr.
Groves traced Mr. Brodie to Ostend, and learned that he had been there
upon the 4th of June, His Majesty’s birthday, and he was afterwards
traced to Amsterdam, where he was apprehended, identified, and committed
to prison. Upon proper application, he was delivered up to Mr. Groves,
and was brought from thence to London by him. Immediately upon his
arrival at London he was examined before Sir Sampson Wright, and
committed to Tothilfields Bridewell; some time afterwards he was sent to
this country. I was present at the examination of the person brought
back from Amsterdam, and I know the prisoner at the bar to be him. There
was a trunk containing linens and a variety of other articles, belonging
to Mr. Brodie, brought with him from Amsterdam; and I received from Mr.
Cartmeal, one of the persons who came along with him, two watches,
twenty crowns, and some other articles, which he said were found upon
Mr. Brodie; and the watch now upon the table I know to be one of them,
having taken particular notice of the maker’s name and number. [The
counsel for the pannels here repeated the objection against adducing the
watch, as mentioned in the general objection and interlocutor before
taken down.] There was likewise another trunk belonging to Mr. Brodie,
which was sent over from Ostend by Sir John Potter, in consequence of a
letter written to him in my presence by Mr. Groves, after Brodie’s
return to London. This trunk, upon its being brought to London, was
opened by Sir Sampson Wright in my presence, and in the course of
examining the contents of it I discovered a wrapper with some papers,
which I opened, and some of the papers appearing to me to be important,
I transmitted them to the Lord Advocate. [Here the unsigned scrolls were
shown to the witness.] Both Sir Sampson Wright and I put our initials to
them, and I am sure that these are the same, as well from seeing my
initials as from the strength of some of the expressions, which made a
great impression upon me at the time. [The state of affairs and letters
of credit were likewise shown to the witness.] I have seen these before;
they came in a packet to Sir Sampson Wright from Mr. Rich, the English
resident at Amsterdam, and Sir Sampson Wright delivered to me the letter
in which they came with them inclosed.
Cross-examined by the DEAN OF FACULTY--Mr. Longlands, have you any other
cause of knowledge concerning the trunks and other articles being the
property of Mr. Brodie, and the same which were brought from Ostend and
Amsterdam, than the information of Sir Sampson Wright and Mr. Groves?
WITNESS--No other cause of knowledge than what I have already mentioned,
namely, the letters accompanying the same, which I saw, and my being
present when the trunks were opened.
[Sidenote: John Geddes]