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.
I think, my Lords, that it ought to be repelled for the reasons your Lordships have already heard, and because no injury can be done to the pannels from these articles not having been more particularly described, as they will have an opportunity of traversing the evidence that may be brought relating to them. There are many of the articles, such as two iron wedges, an iron crow, &c., that would not admit of a more particular description than has been given. Upon the whole, my Lords, I am for repelling the objection.
The Lord Justice-Clerk—My Lords, the present question is of great importance to the law of this country. I am one of those who are always for giving fair-play to pannels, and will never allow any advantage to be taken of them; but I am likewise for giving fair-play to evidence. It is frequently necessary, my Lords, that the testimony of witnesses should be elucidated by articles referred to being produced; but if the present objections were sustained, I am afraid it would strike against the admissibility of this kind of evidence altogether; because, let a public prosecutor describe such articles with the greatest attention, it still may be contended that they admitted of a more accurate description than the one given.
By the former state of our law the prosecutor was not allowed to prove anything that was not particularly specified in the libel; but the Act 153, Parliament 11th, James VI., was introduced to obviate this defect in our law, and by that Act the prosecutor is allowed to prove every circumstance to substantiate the charge, or in general art and part of the charge. It is very true, my Lords, that the humanity of public prosecutors of late years has induced them to be more special than they had any occasion to be, but surely they are not cut off from the generality allowed them by law, although such generality may have been deviated from through lenity in practice. Apply this to the present case. It is true that the Lord Advocate, as public prosecutor, has been induced to state particular circumstances, and to specify the articles to be founded on; yet that does not alter the law, nor deprive him of the generality which he is allowed by law. As the names of witnesses are given, without specifying what they are to say, in the same way it is only necessary to state that such articles are to be produced in evidence, but not necessary to specify a description of them; and it is the duty of the prisoner himself, or those who act for him, to survey them when lodged in the Justiciary Office. As there is no precise time against which articles to be founded on are required to be lodged in the Justiciary Office, there appears to be no undue delay in lodging this trunk. Had it been pled that it was not lodged debito tempore, and that the pannel had been injured thereby, then a delay of the trial must have taken place.
I remember it once happened on a circuit that the articles founded on in the libel were only lodged the very morning of the trial in the Clerk’s hands; but I then refused to allow them to be founded on, because the pannel had not a reasonable time to prepare himself against evidence that might arise from the production of these articles; but the present case is very different, and therefore, upon the whole, I am for repelling the objection.
Mr. John Clerk—My Lord Justice-Clerk, before the interlocutor is written out, I beg leave to make one objection in behalf of the pannel, George Smith.
The Lord Justice-Clerk—What! After the Court have delivered their opinions, it is not decent in you to propose to say anything, and I apprehend the prisoners are in no danger of suffering anything by your not being allowed to supply the defects of the Dean of Faculty.
Mr. John Clerk—My Lord, the Dean of Faculty has no authority to plead for my client.
The Dean of Faculty then moved the Court to allow the general objection to be entered upon record, and proposed to repeat it and refer to it as often as any of the particular articles came to be produced in evidence, which was accordingly agreed to, and the following interlocutor was pronounced repelling the objection:—
The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the foregoing debate, they repel the objection stated to producing and founding on the articles specified in the objection and mentioned in the indictment, and allow them to be adduced in the course of the trial.