Scottish High Court of Justiciary Decisons

LORD MACKAY .—The Crown has taken a course here which makes the function of the High Court of Justiciary, in its exercise of doing full justice, delicate and difficult. The libel stands as it was originally drawn and served, and against it is stated a twofold objection to relevancy. I must decide the question whether that objection to relevancy is good against the libel, as it is left standing; or whether it is not good, and the panel must proceed to an assize. I have been aided by the arguments and by the authorities. I have come to the conclusion, although not without great anxiety, that the plea of irrelevancy in its two parts falls to be repelled, and that the panel must proceed to trial, and that a jury be empanelled.

I wish, however, to say definitely that I could not act so if I were to rely entirely upon the views, quite a number of the views, submitted to me on behalf of His Majesty's Advocate. In the first place, I am not to be taken as laying it down (as was argued to me) that the word "exposure" in itself specifies a criminal act, or that it is a sufficient vox signata to be followed per se by the word "murder." I think, for my part and from all we have heard, that would not do. "Exposure" has not become a vox signata or a crime in itself, and the cases, so ably and anxiously argued, from the early part of last century show that it was never then so regarded. It was always put, argued, and by the

Lords decided, as a question of the circumstances, and of the destroying agent to which the "exposure" was made. I do not think that anything since 1887 has changed that, so far as the question of exposure being per se a crime is concerned. Another argument I cannot take, namely, that the whole words relating to exposure are in this indictment surplusage, and that one may regard this as a good charge by taking the pen through them, and then asking oneself the question whether, if "murder" (implying "whereby she died") followed immediately after and below the words describing the assault libelled, that would satisfy the Act of 1887. I must and do take it that "exposure" had a material place in the history of the obnoxious deeds set forth, and is not surplusage. Accordingly I must examine further in what manner exposure is libelled. I shall shortly do so. Upon the other hand, I do not hold with Mr Burnet that he is entitled to treat the exposure case as if it were the whole case, or as if the two branches of the charge were alternatives. I do not think they fall to be so read, either for one side or for the other of the argument submitted. Then, again, I am not to be taken as assuming with the Crown that the effect of section 8 of the Criminal Procedure Act, 1887, is in every case to allow the framer of an indictment to cut out all reference to the circumstances under which some peculiar form of crime takes place. I think that would be straining the words of section 8, and the significance of the sample (and mostly simple) cases, given in the Schedule, which were, in the case of murder being libelled, three in number. It will be seen, each of the three samples was by assault, or poison, or some similar deadly agency.

But, that being so, I read the present indictment in this way. On the selfsame night—that is the meaning of the words "22nd or 23rd"—the panel is alleged to have assaulted the woman in certain ways specified (and ways which, if proved, are very serious and dangerous), and thereafter—because I read the word "and" as being cumulative and as introducing something happening after—"did expose her," and it is not "expose" standing alone as such, but—"expose to the inclemency of the weather" of that night. It is said that such conjunctive statement is not enough without some further coupling or causally connecting of the two matters. Well, I am not satisfied, in spite of Mr Burnet's able argument, that there can be laid down any difference in this sort of matter between two forms of slaying—what are laid down both in Hume and in Macdonald on the Criminal Law as two forms of homicide—one form which, owing to the recklessness of consequences or to deliberate intention, may be held by a jury to be murder, and that minor form of violence which may not be so held from the absence of such intention or of such reckless disregard. But it has been held in the case of Dawson and Bonnar, 1907, that in almost similar circumstances and with equal sparseness of particulars in the charge, the indictment was a sufficient one for a charge of culpable homicide. That instance in 1907 is one in which the only words of qualification, as far as I can see, used in the charge and

rendering it capable of being distinguished from the present case are the words, appearing after "exposed," "in a partly nude state." I am not satisfied that the criticism directed to the absence of specification as to any particular form of clothing covering the exposed body is enough to take one case away from a jury which in the other and earlier case otherwise identical was allowed to go to the jury.

Now, let me say a word upon the old cases, and particularly the case of Kerr, reported in 3 Irvine, pp. 627 and 645. It is necessary to notice that these were one and all decided under an old form of procedure, which required a very full statement, a full logical form, and deduction from major and minor premises, and that the Act of 1887 was intended to do away with these elaborate pleadings and their somewhat involved consequences, and to introduce simpler pleadings. The Act also provided samples, by section 2 laying down that these forms of indictment might be followed; and it provided particularly, by section 8, for the reading into all indictments of certain adjectival and adverbial words, formerly essentials, and among these reliefs occur a few words to which Mr Burnet did not particularly refer. Not merely did it render it unnecessary to use the words "wickedly and feloniously," "falsely and fraudulently," and the like; it also dispensed with the use of any "similar words or expressions qualifying any act charged," and established that such qualifying allegation would be implied. That surely means more than simply saying that "wilfully and feloniously" may be taken as words of style. It is explicitly meant to cover all adjectival or adverbial expressions of the wicked quality of the acts spoken of. If, then, in this case I have something of a copula in the word "and," reading that (as I do) in the sense that the panel had injured the woman and had thereupon (coupled with the injury) exposed her, and that the woman was unconscious at the time, and lastly, if I qualify those last words by what I am by the statute entitled to imply, namely, "wickedly and feloniously," then the Crown charges that he exposed her not simpliciter, but (a) "in the injured and unconscious condition," and (b) "to the inclemency of the weather," and thereafter alleges (to be by force of statute read in) "whereby she died." That and that alone sets the problem:—Is enough said; enough notice given?

The Advocate-depute rightly said it has become the universal practice since 1887 to drop those words "whereby he or she died," words which in the older practice would have been essential words; they are now to be assumed as implicit in the word "murder." If this beating by the panel is proved, and if he is proved to have wickedly and feloniously exposed the unconscious woman regardless of consequences to the inclemency of the weather, and if she died in consequence—and I read "died in consequence" as inferring (looking to the copula "and") in consequence both of the beating and of the exposure—then I think there is a case which must go to a jury. I retain no doubt that the case of Kerr, the case chiefly relied on, comes to this. The first indictment failed because "exposure" alone or unqualified might mean (so said their Lordships) a variety of things; the second and amended indictment

successfully passed muster, because particulars were given of the death-producing circumstances, and because the words "wholly regardless of the consequences" were introduced for the first time. It was a case of exposing a child (infant), and in such cases the mere condition of infancy implies the want of ability for self-help, which in the present and like cases is given by the words "while unconscious and injured."

I regret, however, if it be open to me to regret, that in such a case as this the extreme of latitude, as it were, allowed by the Act to the Crown should be taken advantage of, and that the Crown should be placed in such a delicate position that I have to say what I have said. In any future case I should prefer that more specific information might be given where exposure to dangerous agencies, in a condition as to clothing or as to ability to afford self-help which renders death a consequence to be contemplated by a reasonable agent, is a necessary element in the Crown's case. Such specification the Court will desire, notwithstanding the wide terms of the statute exonerating from particulars of these adjectival or adverbial qualifications. The result is that I feel, while paying all due recognition to that care which the High Court always affords to the interests of the accused in these cases, that it would not be right to say that the indictment as it stands without alteration does not pass muster under the 1887 Act, and must fall; and I accordingly repel the objections in both forms, and ask the panel to plead.