Trial of Deacon Brodie

by Unknown

The Lord Advocate—It is now incumbent upon me, my Lords, to move your Lordships to pronounce the sentence of the law against the prisoners at the bar.

Mr. Wight—My Lords, before your Lordships proceed to pronounce judgment, I have an objection to state on behalf of the prisoners at the bar, which, in my opinion, ought to prevent any judgment from passing upon this verdict.

My Lords, from the evidence taken in the course of this trial, it appears that the libel is insufficient, in so far as it charges “that the pannels did wickedly and feloniously break into the house in which the General Excise Office for Scotland was then kept,” whereas it ought to have stated that they so broke into one of the houses so kept, describing such house particularly. For it appears from the proof that there were two separate and distinct houses in which the General Excise Office for Scotland was then kept, on the opposite sides of the court, and at a considerable distance from each other.

Besides, my Lords, supposing this uncertainty in the libel as to the locus delicti were insufficient to operate an arrest in judgment, yet no judgment can pass upon the verdict of the jury, on account of the uncertainty thereof, inasmuch as it finds in general terms the pannels guilty of the crime libelled; by which it is found that they have been guilty of breaking into the house in which the General Excise Office for Scotland was then kept, without distinguishing to which of the two before-mentioned houses the verdict applies. And the present plea in arrest of judgment deserves the greater consideration on this account, that the jury were called upon, by the manner in which the proof was conducted on the part of the pannels, to attend particularly to the circumstance of the Excise Office being kept in two separate and distinct houses.

The Lord Advocate—My Lords, I am not a little surprised that an objection of this nature should be brought forward at this time. This plea resolves into an objection to the relevancy or form of the indictment, which ought to have been stated in limine. If the gentlemen on the other side of the bar meant to have stated any such objection as the present, they ought to have done it yesterday. But after they have allowed the indictment to pass without any such objection; after your Lordships have sustained it as relevant, and remitted it to the knowledge of an assize in common form; and when the jury have returned a verdict finding the prisoners guilty of the crime charged—there can be no room for any further proceeding, except to pronounce the sentence of the law upon the verdict so returned.

I do therefore, my Lords, altogether deny that it is competent, in this stage of the trial, to bring forward an objection such as the present, which ought to have been stated at first, and which your Lordships cannot now enter upon.

But, my Lords, even if the matter were open, the objection itself is altogether frivolous, for the house that was broke into, as stated in the indictment, was really and truly the house known by the name of the General Excise Office for Scotland at the time. It is indeed true that one or two of the clerks and inferior officers were accommodated in a small house within a few feet or yards of the large one, and which was joined to it by a wall like a wing. But this did not make them in any sense of the word two separate houses. The principal house which was broke into, was hired at £300 per annum of rent, and the small house at £8 per annum. This last was just as much a part of the General Excise Office as a kitchen separate from any house is a part of that house. And surely your Lordships would not cast an indictment which charged that a man’s house was broke into, upon the ground that his kitchen was not joined to his house, which very often happens.

I therefore, my Lords, consider this as a very frivolous objection, and I know that the honourable counsel on the other side of the bar, who is, to speak in reply to me, knows too well the dignity of his character and the honour of his profession to insist seriously upon an objection so futile. Had this been the case of a poor man, my Lord, we would not have heard of this objection, and I do not see what title the rank and situation of this man can plead for troubling the Court with frivolous objections to the verdict of a jury after so long and so fair a trial.

The Dean of Faculty—My Lords, I know what belongs to the dignity of my profession and the honour of my character as well as my Lord Advocate. [Here the Lord Advocate, laying his hand upon his heart, expressed, by the strongest gestures, that he meant to say nothing disrespectful to the Dean of Faculty, and was going to speak, when the Lord Justice-Clerk said that what my Lord Advocate had mentioned, so far from being derogatory to the Dean of Faculty, was a high compliment to him. The Dean of Faculty then resumed.] My Lords, I say that I know how I ought to conduct myself, both as a lawyer and a gentleman, and it is in the full conviction of performing my duty that I rise to enforce the present objection, which I think is such a one as ought to overturn this verdict.

It has been asked why this objection was not brought forward in an earlier stage of the trial—why it was not pleaded at the very outset, as sufficient to cast the indictment? It has been called a frivolous objection by my Lord Advocate. But many objections were styled frivolous by the gentlemen on that side of the table during the course of this trial, which your Lordships decided to be well founded. My Lords, it was impossible to plead it in this early stage, because the fact came out to be as stated in the objection only during the time that the proof in this trial was led. Though the circumstances might be known to us privately before, yet it was not substantiated by proof, and this surely is the proper time for stating an objection, the grounds of which only appeared in the course of the evidence, and could not possibly appear sooner.