Trial of Deacon Brodie

by Unknown

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.