Lord Pitmilly.—The Court were peculiarly circumstanced in being called upon to give an opinion on an indictment in a case, part of which must unquestionably go to trial. He was quite clear that one of the charges must undergo an investigation; that the trial to that extent must proceed. But Counsel were by no means precluded from stating the objection they had brought forward, and which, appearing to them in the light it did, it became their duty to press upon the attention of the Court. This accordingly they had done with equal zeal and ability, in a manner which did honour to themselves, and reflected credit on the Bar of Scotland. But it was the duty of the Court to be calm and guarded; to express their opinions in a dignified and dispassionate manner; and to avoid any thing which was either calculated to unsettle the established principles of that law or to form a bad precedent for the future. He agreed that there were two different questions before the Court; the first of which was, whether Helen M‘Dougal ought to have been included in the indictment. And on that point he had no doubt of the Prosecutor’s right so to include her. He approved of what the Lord Advocate had done, and he had no hesitation in saying, that the trial should now proceed. The other question was of a very different nature; namely, whether it was competent, and also whether it was proper and fitting, that Burke should now go to trial upon an indictment, charging three murders, or should be tried on one or other of these charges. Of the competency he had no doubt whatever. His Lordship was much struck with the indictment when he first saw it, and he felt it to be his duty, as it is always the duty of the Court on such occasions, to inform his mind in regard to the principle on which it had been framed. He went to the authorities on the subject, and after a careful examination of them he had no doubt of the competency. When he looked at the cases of Beaumont and Gillespie, particularly the latter, where nine separate acts of forgery were charged, he could not have the smallest doubt as to the competency of including these several charges in the same indictment. Our practice on this point was too firmly fixed to admit of any question, that one individual may be charged with several crimes of the same nature, and committed at different times. The English cases referred to he put altogether out of view, because this was not a new point, now raised for the first time, and to be settled by a reference to principle or analogy, but a matter fixed by our own practice, and not again to be brought into dispute. He was therefore quite clear as to the competency. But where it was a question of discretion merely, and where that discretion, as in the present case, was strongly appealed to, the Court would interfere, because it was their bounden and sacred duty to prevent a prisoner from suffering prejudice in his defence. The present prisoners, by their highly respectable Counsel, declared that they would suffer prejudice if they were put upon their trial on all the charges, and it was not for the Court to say whether that might or might not be the case. Three consecutive trials might or might not be beneficial to the prisoner. In his opinion they were more advantageous to the Prosecutor. By this means he learned how to conduct his case; and if he saw a link awanting in one trial, he might endeavour, by means of additional evidence, to supply it in the next. It did appear to him, therefore, that what the pannels asked for by the mouths of their counsel, was calculated to do them more prejudice than submitting to go to trial upon the indictment as it now stood. But they had doubtless been well and judiciously advised, and were prepared to take the consequences. He held, however, that the Prosecutor had done right in including both of them in the same indictment; and that by doing so he had taken the only and most effectual means in his power not to prejudice them either in preparing for their defence or on their trial. He well remembered a case in which the danger, disadvantage, and odium attending consecutive trials were strikingly exemplified. It happened in consequence of the Aberdeen riots, and the parties were brought to trial at the instance of a private prosecutor. His Lordship was counsel for the pannels, and they were acquitted. Not satisfied with this, however, the private prosecutor reared up a new indictment upon new grounds. And he could never forget the feeling which was excited, by this attempt to bring the parties acquitted to a second trial, in the Court, the Bar, and the country at large; there was one general cry of indignation against a proceeding so shameless and oppressive; the consequence of which was, that the private prosecutor became alarmed, and the attempt was quashed. This was the natural course of things. And, in general, it was lenity, and humanity, and justice, to include all such cases in the same indictment. In the present instance, no result such as that which took place in Aberdeen was to be feared. But the Court being clearly vested with a discretion, and the pannels having strongly appealed to that discretion, it was his opinion that the cases should be tried separately.
Lord Meadowbank entirely concurred in the views of Lord Pitmilly. The nature of this case and the impression it had produced upon the public were such, that it required the most careful and anxious consideration; but he was confident that the more thoroughly their Lordships were convinced of the existing state of excitement in the public mind concerning it, the greater would be their anxiety that the prisoners suffered no prejudice on their trial or in their defence. The question here was one of very great and general importance. But if it had been entertained on the question of competency, it would have shaken the whole system of our criminal procedure. Our practice of accumulating a number of charges in the same indictment had been steady and uniform. With respect to the earlier cases referred to, particularly that in 1696, he must say that he could not for his soul comprehend upon what grounds the counsel for the prisoner had attempted to invalidate their authority. The particular case referred to occurred after the Revolution, when the Judges were as great and eminent lawyers as ever sat in that Court. But in order to show the uniformity of the practice, he needed not go farther back than the case of Murdiston and Miller, where several acts, committed by different individuals in different counties, were put into the same indictment; yet not one iota of an objection was urged against the proceeding similar to what they had heard to-day. Our own practice, in cases of forgery, which was a capital crime, left no doubt upon the matter. Several acts of this description of crime were constantly charged in the same indictment.—In cases of robbery, it was not competent to libel aggravation. The Prosecutor was not admitted to libel habit and repute. That was now settled law. It had not been so formerly; and accordingly, when he had the honour to fill the same situation, which his learned friend (the Lord Advocate) now held, he had directed an indictment to be raised to try the point,—and the law was now settled. But it was competent to accumulate several acts in the same indictment, and to have it tried by the same evidence and before the same Jury. It was competent where there was several acts of robbery charged against different individuals; and there was one case of a father and a daughter, where the daughter was charged with two acts, and the father with all the three libelled. He was therefore of opinion that the Lord Advocate had done right in proceeding as he did. But the Court had a discretion; and to that discretion the prisoners had appealed. But having stated his opinion of that discretion, he deemed it right to say, that the Court was not answerable for the consequences. The prisoners had exercised their discretion, and he warned them to consider well the step they had taken. As to the Court they were bound to sit there and try the cases one after another.
Lord Mackenzie also agreed with his learned brothers as to the competency. In so far as discretion was concerned he likewise concurred, upon the statement made by the pannel and his counsel that he would suffer prejudice. He saw that the pannel was well and ably advised; and he could not take it upon him to allege that there was any thing absurd or unreasonable in the request which had been made.
Lord Justice Clerk.—The only question here was as to the competency of the charge against Burke: for the Lord Advocate had intimated his intention not to proceed at present against the woman. After listening attentively to all that had been said, after considering the authorities, and recollecting something of the practice of this Court, he thought the indictment framed in a legal and proper manner. Burke was not accused of one crime, but of three different acts of the same crime; and, therefore, he did not come within the reach of those cases referred to by Mr. Hume. If this indictment was a bad one, the Court had been guilty of a great dereliction of its duty in sustaining many indictments framed upon precisely the same principle. He recollected a case of several acts of robbery, a capital crime, and one of the four pleas of the Crown, included in the same indictment; and how could they distinguish between such a charge and that of murder, which was another of the pleas of the Crown? In fact, it was not now in the power of the Court to depart from the practice which had been so firmly established and so steadily followed. The Court, however, had a discretion, and where it was appealed to they would exercise it. The Court had even found an indictment irrelevant where it was strongly alleged by the pannel that he would suffer prejudice were he tried upon it in its actual shape.—Upon the responsibility of the respectable Counsel, who had stated that the present prisoners would suffer prejudice if they were tried upon the indictment before them as it now stood, he was of opinion that the Court should interpose in virtue of its discretion. But they ought to do so upon principle. They ought to find the libel relevant, and also to find it competent to proceed to the trial of the charges seriatim, leaving it to the option of the Prosecutor to say which of them he might choose to begin with.
This accordingly became the judgment of the Court. The objection was repelled, but in respect of the allegation that the pannel would suffer prejudice were he tried upon the indictment as it stood, find it competent to proceed with only one of the charges at a time, leaving it to the Lord Advocate to say which of them he thinks proper to begin with.
The Lord Advocate.—In consequence of the opinion of the Court I shall proceed with the last charge, which includes both the man and the woman. The objection in regard to the latter has now been completely removed.
The Dean of Faculty.—I beg to remind the learned Lord of his former statement, that he would desert the diet against the woman.
The Lord Advocate.—The case is now completely changed. My former statement was made upon the supposition that the trial as to Burke was to proceed upon all the three charges at once.
The Prisoners on being asked by the Lord Justice Clerk, if they were guilty or not guilty of the crimes charged in the third article of the Indictment, each answered “Not guilty.” The following Jury were then chosen.