The morning call., 1893-10-29

qulres copy of the indictment to be de-
lIvered to the accused. This is decided
advantage. He knows precisely what he
has to answer. Accompanying the indict-
menr is full list of the witnesses for the
prosecution, which cannot under any cir
cumstances be added to; also list of the
Jurors on the panel, which always numbers
forty-fve, with particulars of their occu-
patton and residence. The accused has
thus ample intimation of all that coz
Germs him, and may challenge such Jurors
as he pleaSes. Jurors are drawn impair
TALLY, by lot, from the number qualified to
serve, and challenges are exceedingly
rare, even in cases of murder. This cer-
tainly is a much better method than the
English one of keeping the jurors names
secret. 1t succeeds well in Scotland.
AS to the witnesses, the principle of
only calling those of whom the accused
has had notice is so absolute that convic-
tiOns are quashed if it be shown that
single additional witness, on however
trivial point, has been examined. To
such evidence there is no objection in
America. This punctilio may be carried
in Scotland to the extent of defeating JUS
tice. 1t is said that in a famous poisoning
case material witness could have cleared
up difficulty. but not having been named
fifteen days before the trial the evidence
was lnadmlssible and the verdict was
mot proven" This provision is certainly
in favor of prisoners.
In the procedure at the trial the accused
has the advantage of not having an intro
ductoTy speech from the prosecuting couD-
sci or from the Judge or any one. The
indictment is known and evidence is ad-
duced, or as the Scotch say sled" without
delay. When the prosecution witnesses
are exhausted the prisoner has heard the
whole case against him. But he is not re-
quired to announce in advance what wit
hN II OalI
witnesses or not as he pleaSes. AS soon
as all the evidence is in the speeches of
counsel begin. No rebutting evidence is
allowed. The Lord Advocate, an Advo-
cate-Depute or the Sollctor-General ad-
dresses the jury for the prosecution, and
thus the counsel for the defense invariably
has the last word. whether be has called
witnesses or not. There is just one speech
for the prosecution and one for the de-
tense, fortunately for the jury, who have
not their minds bambooZed by too much
oratory or rhetorical prejudice. The last
speech to the jury is the summing up by the
presiding Judge. In trials before the High
Court OF Justiciary in Edin burgh there
are three Judges, who all lake notes and
consult each other on doubtful matters.
Undue detention or dilatoriness in CON-
ing to trial is effectualy prevented in
Scotland. Within twenty-four hours after
arrest the accused must be brought before
a magistrate, and upon being committed
for trial by the Sheriff he can, by process
known as running his letters demand
trial within sixty days of his arrest
Nearly thirty years ago the poisoner,
Pritchard-a doctor who had murdered
his wife and mOther-In-law-ran his let
tiers so closely that had the prosecution
not been able to proceed he would have
been at liberty in another week. He was,
however, convicted, and his days then ran
f.ae-F
Glasgow within three weeks. Pritchard's
was a notable case. The whole basis of
the prosecution turned upon scientific
testimony as TO the traces OF poison and
the properties of poison. Public excite
ment was intense, but until the trial
not one word of any certainty bearing on
the case was allowed TO escape. The
accused enjoyed the usual facilities
accorded prisoners awaiting trial, but he
virtually could see no one but his solicitor.
Publicity of preliminary investigation
may sometimes help both the prosecution
and the accused, but tie Scotch prohibit
il as far a S possible, whereas in England
and also in the United States the examna-
tion OF witnesses before commitment is In
public aud the facts are all known. A
prisoner who shapes his defense accord
ing to what thus is elected aud calls wit
nesses is sometimes mortified at finding
rebuttiEg evidence introduced. Even wit
peaching ch aracter.
In Scotch criminal trial there are fif-
teen jurors, who are drawn by lot out OF
the panel or venire of forty-five. Why
fifteen should be selected is not apparent,
but since 1915 Scotch juries in civil cases
consist Of twelve, as in England, and a
majority verdict also obtains in their case
if after three hours deliberatiOn nine are
found to agree; while if nine cannot
agree after nine hours deliberation the
jury may be discharged. The better TO
assist sweet reasonableDeSs. and not to
coerce them into agreement by starvation,
a Scotch jury is allowed refresbment while
locked up, the expense of which. as indeed
Is the whole expenditure of crimin al pro-
cedure, comes out Of the public treasury.
While civil jury in Scotland may be
discharged without verdict the jury in a
criminal case must give verdict On the
whole this is an advantage in Scotch law.
The verdict may be guilty" or mot
guilty." or mot proven; either of these
findings may be given by bare majority.
Thus, eight votes of jury may suffice TO
hang man. though it is probably inpos-
sible to point to case where that narrow
majority did carry the death penal}y-at
least in these civilized times.
Objection is often scoffingly taken to
the miserable subterfuge, as it is supposed
to be, of verdict of mot proven" on the
3
cused, and that as it has the same effect
as a verdict of acQuittal it would be more
manly anc straightforward to say mot
guilty" But is this reasoning sound and
logical? AS everybody knows, there are
numbers of cases where verdict of not
guilty is notoriouSly untrue, yet as the
evidence is insufficient to convict such
verdict is admissible. The prosecution is
bound to convict by evidence in a legal
way, and must discard assumptions incap-
able of proof or testimony not procured in
a legal and warraE table manner. Law
would be no science at all If rules were
to be travested and nullified. and faulty
theories bOlstered up by unjustifiable ex-
cursions beyond bounds. What Scotch
law does, therefore, is to accommodate the
jury with a salve for conscience. The jury
may be quite convinced that the accused is
guilty, but the evidence has not proved
this, and it is by evidence alone that the
law declares they must be guided. So
they return a verdict of mot proven"
which does not cross the solemnity of their
own Oaths and is quite as etficacious as a
verdict of mot guilty" in the effect on the
position of the accused. When he has
"tholed his assize" he cannot be brought
10 trial again on the same charge.
The Scotch form of oath is quite differ
ent from that commonly taken Oh the
New Testament or the Pentateuch. There
is no book to kiss. This Is a decided i'm