No. 32. M'Creadie

Mar. 22.

The Court held the proceedings criminal, and the v. Murray. suspension competent; and on the merits-(1.) that the High Court. Warrant of citation was competently signed by one 1862. Justice; (2.) that as there was a quorum of the Justices Suspension. under the Act duly qualified, at the diet when the adjournment took place, the presence of the third Judge could not in any view invalidate the proceedings.

The bill was therefore refused.

DUNCAN & DEWAR, W.S.-CROWN AGENT.-Agents.

No. 33.
James

Perth.

1862.

JAMES MOLYSON-J. C. Smith.

PROSECUTION-TIME OF TRIAL-LIBERATION-STATUTE 1701, c. 6.— A prisoner committed on a charge of Forgery ran his letters, and was brought up for trial on criminal letters 146 days afterwards— Plea, that under the act 1701, c. 6, the Public Prosecutor was bound to complete the trial of a prisoner within 140 days after he had run his letters, and that therefore the prisoner was entitled to liberation, repelled, on the ground, that while the act 1701 entitled a prisoner to demand liberation within a certain time after he had run his letters if he was not served with criminal letters, that act did not in any way limit the Public Prosecutor as to the time when he might serve criminal letters.

IN November 1861, James Molyson was apprehended Molyson. on a charge of having forged and uttered six bills or April 18. bill-stamps. On this charge he was committed, and he immediately, or shortly thereafter, made application Forgery. with a view to trial, under the Act 1701, c. 6, and obtained letters accordingly. He was afterwards charged with six other Acts of forgery, and another warrant of commitment was made out. No indictment was served

No. 33.

James

on him.
But on 29th March he was served with
criminal letters, charging him with the forgery and
uttering of twelve bills or bill-stamps, intended to be
filled and used as bills.
up

Molyson.

Perth.

April 18. 1862.

On 2d May he was brought up for trial at the Perth Forgery. Circuit on the criminal letters, 146 days having elapsed between the intimation to the public prosecutor under the Act 1701 and the date of the trial.

J. C. SMITH, for the panel, moved for his liberation, on the ground that he was illegally in custody, in respect he had not been brought to trial within 100 days from the date of the intimation to the public prosecutor. By the Act 1701, c. 6, the public prosecutor was required to fix a day for trial within sixty days after the intimation; and then it was required that the trial should be brought to a final determination within forty days, failing which the prisoner was entitled to liberation, 'unless there be new criminal letters raised before the 'Commissioners of Justiciary, and duly execute against 'the said prisoner.' The Act was no doubt obscurely expressed, and had at different times been differently interpreted. At the period immediately after it was passed, it had been held to limit the public prosecutor to 100 days for concluding the trial against a prisoner. But it was subsequently interpreted so as to give the prosecutor 100 days in which he might proceed by indictment, and 40 days more, during which he could proceed by criminal letters. But in no case had it been held that the prosecutor could have more than 140 days. Here 146 had elapsed.

The argument, that the right conferred by the Act on a prisoner was merely the right to be released from prison on the lapse of the 100 or 140 days, as the case might be, was ill-founded. Because, in the preamble of the Act it was declared that the object of it was to remedy the evil of 'delaying to put' prisoners 'to trial,'-an object which, of course, was not in the least accomplished, if the true reading of the Act were

James

April 18.

1862.

No. 33. not that contended for; because, if the effect of the Act Molyson. were not to force on a man's trial within the days speciPerth fied, but merely to entitle him to liberation, leaving it open to the prosecutor to try him on criminal letters Forgery. at any time before the years of prescription (applicable to crimes), the Act, of course, failed entirely of fulfilling its declared object-Burnett's Criminal Law, 356.

LORD ARDMILLAN.-The main purpose of the Act of 1701 was not merely to prevent undue delay in the trial of a prisoner, but to enable him to force his way out of prison if the public prosecutor did not proceed with the trial, in the form prescribed by the Act, within a certain time. And no doubt in this case the prisoner might have forced his way out of prison. No procedure could be taken against him under an indictment; but there is no valid objection to his trial under the criminal letters.

According to the more recent authorities applicable to the case where a prisoner has, under the Act of 1701, run his letters, the result is, that if the public prosecutor fails within sixty days to fix a day for his trial, then he is entitled to his liberation; and there his rights under the first part of the Act end.

But then Hume says: Although the prisoner has 'been released in respect of the failure to raise a process within the sixty days, yet a libel for the same crime,

at the instance of the same informer, may be after'wards executed against him; and that, having thus given earnest of his resolution to insist without delay, the prosecutor, either at executing his criminal letters or afterwards, may have a warrant to recommit the 'accused in order to his trial. But, to guard against a 'long confinement, in this case the trial of this libel 'must be brought to an issue within forty days, which

are here to be counted from the time of recom'mitment. If the trial is not finished within that period, the Court are then under the necessity of deserting the diet simpliciter, and the panel should be

'free for ever of all question or challenge touching the 'offence.'

James Molyson.

April 18.

1862.

Forgery.

The true protection which a prisoner has under this Perth. Act is protection against continued imprisonment; and, besides, if the prosecutor, after the lapse of the time during which he may proceed by indictment, serves criminal letters and blunders these, then the prisoner cannot be tried for the offence again. But the Act affords no objection to the trial proceeding under these criminal letters.

LORD NEAVES.-I am of the same opinion. This Act confers important benefits on prisoners. When a man is put in jail, he can call on the public prosecutor to fix a day for trial within a certain time, and to complete the trial within a certain time, and if the public prosecutor do not do so, the prisoner can have liberation. Then the public prosecutor can have one more chance. Taking his own time, and with all necessary care, he may proceed to serve criminal letters; and if any blunder occurs in prosecuting the trial under these criminal letters, then the prisoner escapes altogether. But the Act, although conferring these valuable privileges on a prisoner, gives no support to the objection which has now been taken.

HER MAJESTY'S ADVOCATE-Shand A.D.-Kinnear.

AGAINST

MAY GRANT-W. A. Brown.

MURDER-EVIDENCE-COMPETENCY.-In a trial of a woman for Childmurder, it was proposed, on the part of the Crown, to ask a woman, in whose charge the prisoner had been left for a short time by the policeman who had the prisoner in custody, what the prisoner had said to her, in reference to the alleged murder, in answer to a question put by the woman-Circumstances in which the question was disallowed.

No. 34.

May

Perth. April 18. 1862.

ChildMurder.

THIS was a case of child-murder, in the course of which the Advocate-Depute proposed to prove an admission by the prisoner in the following circumstances: -The prisoner was apprehended by Turnbull, a criminal officer, and was brought by him to Pitlochry on their way to Perth. On arriving at Pitlochry, by which time they had already been some hours on the journey, Turnbull took his prisoner to the house of Young, a police officer, and left her for about half an hour in the charge of Young's wife. Young's house was also a police-station, and a number of witnesses had been brought there to identify the prisoner. The two women were left alone in the room, Turnbull standing outside the door. Mrs. Young began to fondle her baby, on seeing which the prisoner burst into tears, and Mrs. Young said to her- I suppose you would be glad to have your own child again?'

The Advocate-Depute proposed to ask Mrs. Young, who had deponed to the circumstances above stated,— 'What was the prisoner's answer to that observation ?'

BROWN, for the prisoner, objected that her answer was not admissible in evidence, and that no statement of any further conversation that may have passed between the prisoner and witness ought to be received.

LORD ARDMILLAN.-I think this examination should not be allowed. It is beyond all doubt that Turnbull, having the prisoner in custody, could not have been permitted to prove any admission made by the prisoner to him in reply to an indirect question of this kind. Nothing elicited by him in such a manner could have been legitimate evidence, and I do not see that it becomes legitimate evidence, because, instead of being elicited by him, it was so by a woman to whose custody he had temporarily entrusted his female prisoner. Where is it that this conversation is said to have taken place? In the dwelling-house of a policeman no doubt; but in a dwelling-house which was also a police-station. It is proved that a number of witnesses had been brought