Part 8

3. John Niel, also wright, and late journeyman to the said William Brodie.

4. Arthur Giles, wright in Edinburgh.

5. William Watson, wright in Canongate.

6. William Retson, or Reston, nailer, Portsburgh.

7. James Cargill, ironmonger, Edinburgh.

8. Alexander Miller, ironmonger there.

9. George Burton, ironmonger there.

10. James Goldie, ironmonger there.

11. Daniel MacLean, waiter to William Drysdale, vintner in Edinburgh.

12. George Lees, coachmaker there.

13. Alexander Fergusson, dyer there.

14. Patrick Taylor, smith there.

15. Charles MacLeod, apprentice to Patrick Taylor.

16. Agnes Finlay, spouse to Michael Henderson, stabler, Grassmarket.

17. Alexander MacKay, inner turnkey in the Tolbooth of Edinburgh.

18. James Reid, indweller in Edinburgh, and present prisoner in the Tolbooth.

19. Alexander Brodie, baker, Nether Bow.

20. James Murray, sheriff-officer.

21. Helen Alison, spouse to William Wallace, mason, Libberton’s Wynd.

22. Jane Watt, residenter there.

23. Peggy Giles, servant to--Grahame, publican at Mutton-hole, near Edinburgh.

24. Matthew Sheriff, upholsterer in Edinburgh.

Under protestation to add and eik.

ALEXANDER WIGHT, for the pannel.

The diet having been called “at the instance of Ilay Campbell, Esquire, His Majesty’s Advocate, for His Majesty’s interest, against William Brodie, sometime wright and cabinetmaker in Edinburgh, and George Smith, sometime grocer there,” the Lord Justice-Clerk desired the pannels to attend to the indictment then to be read.

Mr. NORRIS, Depute-Clerk of Court, then read aloud the indictment, after which,

The pannels having been asked to stand up,

The LORD JUSTICE-CLERK--William Brodie, you have heard the indictment raised against you by His Majesty’s Advocate--are you guilty of the crime therein charged, or not guilty?

WILLIAM BRODIE--My Lord, I am not guilty.

The LORD JUSTICE-CLERK--George Smith, you have heard the indictment raised against you by His Majesty’s Advocate for His Majesty’s interest--are you guilty of the crime therein charged, or not guilty?

GEORGE SMITH--Not guilty, my Lord.

The LORD JUSTICE-CLERK then asked the counsel for the pannels if they had any objection why the said indictment should not be remitted to the knowledge of the assize.

Mr. CHARLES HAY--My Lords, I appear as counsel for William Brodie, the prisoner at the bar. I do not observe anything in this indictment upon which I can found an objection to the relevancy of it, and therefore I will at present confine myself to a simple denial of the charge against Mr. Brodie, and your Lordships will fall to pronounce the usual interlocutor on the relevancy, in which the prisoner will be allowed a proof of all facts and circumstances tending to his exculpation.

The SOLICITOR-GENERAL--My Lords, I desire to know the nature and tendency of the exculpatory evidence proposed to be adduced, in order that, in the course of leading the proof upon the part of the prosecutor, we may be prepared to meet it.

The LORD JUSTICE-CLERK--It is not sufficient for the prisoner to deny the charge if he intends to prove any facts in exculpation; it is but fair to the public prosecutor and to the gentlemen of the jury that these should now be mentioned that they may have them in their view in the course of the trial.

The DEAN OF FACULTY--My Lords, I likewise appear as counsel for William Brodie, the prisoner at the bar. I admit that it is fair to mention the facts which are to be insisted on in his defence; and therefore, adhering to the general denial of the crime charged, we undertake to prove that Mr. Brodie went, before eight o’clock of that night in which the Excise Office is said to have been broken into, to the house of Janet Watt, a person residing in Libberton’s Wynd, with whom he had a particular connection, and that he remained in that house from the said hour until about nine o’clock the next morning. This will be instructed by the woman herself and by other unexceptionable witnesses.

Mr. ROBERT HAMILTON--My Lords, I appear as counsel for the prisoner George Smith. No objection appears to me upon the relevancy of the indictment, and the prisoner rests his defence upon a general denial of the facts charged, having no exculpatory proof to offer.

The Court then pronounced the following interlocutor:--

The Lord Justice-Clerk and Lords Commissioners of Justiciary, having considered the criminal indictment raised and pursued at the instance of Ilay Campbell, Esq., His Majesty’s Advocate, for His Majesty’s interest, against the said William Brodie and George Smith, pannels, they find the indictment relevant to infer the pains of law, but allow the pannels and each of them to prove all facts and circumstances that may tend to exculpate them or alleviate their guilt, and remit the pannels with the indictment as found relevant to the knowledge of an assize.

ROBERT M‘QUEEN, I.P.D.

The Court were proceeding to select fifteen from amongst the forty-five gentlemen summoned as jurymen, when it was discovered that some of the witnesses had not come forward. In about half-an-hour they all arrived. The Lord Advocate then moved the Court to inflict some fine on those witnesses by whom the delay had been occasioned; but it being found upon inquiry that the hour of cause, but no particular hour, was specified in the citations given them, his Lordship, in respect that the hour of cause was understood to mean ten o’clock, withdrew his motion, and the Lord Justice-Clerk, to prevent similar delays, gave directions that in time coming the citations given to jurymen and witnesses should bear a specified hour at which their attendance is to be required.

Out of the above forty-five jurymen the following fifteen persons were named to pass upon the assize of the pannels; and the pannels being asked if they had any objections why they should not pass upon this assize, and no objections being made on the contrary, they were all lawfully sworn in by the following oath, five at a time:--

You swear by Almighty God, and as you shall answer to God at the great day of judgment, that you will truth say, and no truth conceal, so far as you are to pass upon this assize.

1. Robert Forrester, banker. 2. Robert Allan, banker. 3. Henry Jamieson, banker. 4. John Hay, banker. 5. William Creech, bookseller. 6. James Carfrae, merchant. 7. John Kinnear, banker. 8. William Fettes, merchant. 9. John Milne, founder. 10. Dunbar Pringle, tanner. 11. Thomas Campbell, merchant. 12. Francis Sharp, merchant. 13. James Donaldson, printer. 14. John Hutton, stationer. 15. Thomas Cleghorn, coachmaker.

The jury being impanelled and furnished with pen, ink, and paper, and copies of the indictment being laid before them, the Court ordered the counsel for the prosecutor to proceed to the evidence.

At this stage, before the evidence was led,

Mr. WIGHT--My Lords, I likewise attend your Lordships on the part of Mr. Brodie, and although there does not appear upon the face of this indictment any sufficient ground for an objection to the relevancy of it, yet there are some particulars of which I consider it my duty to take notice; and, in order to save time and trouble to the Court, I propose to do it now rather than hereafter.

The law of this country has been very careful to give unhappy men in the situation of the prisoners every opportunity of preparing for their trials; they are allowed fifteen days after being served with their indictments; they are furnished with a list of the witnesses’ names and designations who are to be adduced against them; and the declarations, writings, and articles to be used in evidence in the course of the trial are particularly specified. The present indictment, though not irrelevant, is perhaps laid in the most vague and general manner I have ever seen. Here there are certain letters and declarations founded on, and other articles, such as a gold watch with a chain, and seal, and key, a chest or trunk containing various articles, a five-pound bank-note, an iron coulter of a plough, &c. These are mentioned in so vague a manner as not to distinguish them from other articles of the same kind, consequently in such a manner as not to give the pannels proper opportunity of preparing for their defence. This is the more inexcusable that all of these articles admitted of a more accurate description.

[Here Mr. Wight was interrupted by the Court.]

The LORD JUSTICE-CLERK--Mr. Wight, these objections are out of place; they ought to be stated when the articles you mention come to be produced by the prosecutor.

The DEAN OF FACULTY--It is no doubt true that the objection to each of these articles falls properly to be stated when they are founded upon by my Lord Advocate; but it was thought proper and respectful to the Court to state the general objection at this stage of the business in order to save time.

The SOLICITOR-GENERAL--My Lords, I wish that Mr. Wight may be allowed to proceed.

The LORD JUSTICE-CLERK--Mr. Wight, go on.

Mr. WIGHT--I say, my Lords, that the articles mentioned in the indictment admitted of a more accurate description than that which my Lord Advocate has given them. The maker’s name and number of the watch might have been mentioned, the device on the seal, too, ought to have been specified, also the number of the note and by whom it was issued; and as to the chest or trunk, which is only described by saying that it contained sundry articles, there is no particular description of it, or of any of the articles it contained. It is not said that it is a hair trunk, or the size or shape of it, or any other

mark condescended upon, whereby it could be distinguished. It might have been mentioned what sort of a trunk it was, whether made of fir, of oak, or of ash; to whom it belonged, and where and in whose possession it was found.

To show your Lordships that this is no immaterial objection, I must beg leave to mention a circumstance that occurred in the present case. Some days ago, Mr. Brodie’s agent went to the Justiciary Office to examine the articles founded on in the indictment; and upon inquiring for the trunk, he was shown a black trunk, a trunk different from the one now to be used in evidence. Thereafter the counsel for the Crown discovered they had committed a mistake; they were so much misled by this want of description that they had sent the trunk referred to, or meant to be referred, in the libel to the prison to Mr. Brodie, and had lodged a wrong trunk with the Clerk of Court. They did not discover this mistake till yesterday morning, and they then applied to the Sheriff for a warrant to recover the trunk, which is now in Court, out of the possession of Mr. Brodie, and which was only lodged in the Justiciary Office yesterday.

Although I have thrown out this general objection, I do not mean to plead it to the effect of setting aside the libel altogether; yet, when the prosecutor attempts to apply his evidence to these articles, I reserve to myself the liberty of making special objections to each article, as it shall be referred to.

The SOLICITOR-GENERAL--My Lords, I will not take up the time of the 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.