Trial of Deacon Brodie

by Unknown

With regard to the matter of fact in this case, I shall not detain your Lordships a moment. Nothing is clearer from the evidence than that there were two separate and distinct houses in which the Excise Office was kept at the time when the robbery was committed. Several of the witnesses have sworn to this, and it was admitted on the other side of the table. I therefore say, my Lords, that this verdict, which has found the prisoners guilty of breaking into the house in which the General Excise Office was kept, finds nothing.

It is in vain to say that these two houses belonged to one and the same office. If they are not under the same roof—which it is confessed these two houses are not—then it is of no importance how near they may be to each other, for neither of them is the house in which the Excise Office was kept, but only one of the houses employed for that purpose. His Grace the Duke of Buccleugh has two houses lying near each other, the house of Dalkeith and the house of Smeiton, both in the parish of Dalkeith. Would the verdict of a jury be good, which, upon the statement of an indictment that the house of the Duke of Buccleugh, lying within the parish of Dalkeith, was broke into, should simply find the pannel guilty? Surely not. It would be necessary to specify which of the houses was broke into, because an innocent man, who could prove an alibi with regard to the one, might not be able to prove it with regard to both, or, in short, because the libel is uncertain.

The Excise Office is now removed to the house lately possessed by Sir Laurence Dundas in the New Town of Edinburgh.[27] Suppose that part of the offices still remained in the former place, would it be sufficient to say that the house in which the General Excise Office is kept was broke into, when there were evidently two houses in which it was kept, one in the Old and one in the New Town? And the only difference betwixt that case and the present is that the distance is greater, for in both cases the houses are equally separate and distinct.

In the same way, for the sake of illustration, it was not till lately that I myself could find a house sufficiently convenient both for the purposes of business and accommodation of a numerous family. I had accordingly two houses, one in George Street and one in Princes Street, and I have done business in both of them. Now, would an indictment charging a person with having broken into the house of the Honourable Henry Erskine, Dean of the Faculty of Advocates, be sufficient, while I possessed two houses, to support a verdict which found the pannel in general terms guilty? It would not be enough to say that I employed both houses frequently for the same purposes, and that I could pass from the one into the other, though not without some little inconvenience of getting wet when it rained. This undoubtedly would not be sufficient, unless I could prove that both houses were one and the same; a verdict finding the pannel guilty of breaking into the house, could, from its uncertainty, apply neither to the one nor to the other.

My Lords, I will not detain your Lordships. The case is very short and simple, and without stating any further illustrations or arguments, I think that the prisoner cannot be more safe than in the opinions which your Lordships shall deliver upon so plain a point so fairly stated to you.

Lord Hailes—My Lords, I have great doubts concerning the competency of this objection, but it is a subject upon which I do not like to enter. I am indeed sorry that this objection has been stated, as it may flatter the prisoners with hopes which I am afraid are ill founded.

The merits of the objection itself appear to me very easy of discussion. The Dean of Faculty is mistaken with regard to the houses possessed by the Duke of Buccleugh, for they are not both in the parish of Dalkeith, as the house of Smeiton lies in the parish of Inveresk. But supposing they did both lie in the same parish, there is a great difference betwixt houses situated at some distance from each other and those which lie immediately contiguous, as is the present case. The small house adjoining to that principal one in which the Excise Office was kept is to be considered as a part of the same building, employed always for the same purpose, and used only for better accommodation.

I repeat it again, my Lords, that I have doubts whether or not this objection be now competent, but laying this out of the question, I am clear for repelling the objection, as the expression used in the indictment appears to me sufficiently descriptive of the place in which the General Excise Office was kept.

Lord Eskgrove—My Lords, I am sorry that this objection has been stated, and I think it my duty to declare, for the sake of the prisoners at the bar, that I do not think it such as ought to induce them to hope that it will operate any change as to the verdict which has been returned this day.

It is my opinion, my Lords, that the objection itself, without entering into the question whether it be now competent to state it, cannot be listened to by the Court. The indictment states that the prisoners at the bar broke into the house in which the Excise Office was kept at the time when the robbery happened, and although a few offices may have been kept in the small house adjoining to the principal building, yet it cannot be denied that this separate tenement was considered as a part of the General Excise Office; and the witnesses themselves, who were examined upon this point have told us that had this small tenement been broke into instead of the principal house, they would have said that the Excise Office was broke into.