Читать книгу WEST PORT MURDERS (True Crime Classic) - Various Authors - Страница 33

Q. You say you have been ten years in Edinburgh? A. Yes.

Q. How have you been engaged?

A. I have been a labourer, and sometimes employed in selling fish with a cart and horse.

Q. Have you been engaged in supplying bodies to the Doctors? A. Yes.

Q. Have you been concerned in supplying the Doctors with subjects on other occasions than that you have mentioned?

The Lord Advocate objected to the question.

Mr. Cockburn.—I hold that I am entitled to test this Gentleman’s credibility with the Jury, and with that view I shall endeavour to make him confess such acts as will make his evidence go for nothing. I purpose to ask him if he was concerned in any other murder except this one.

Lord Advocate thought the Dean of Faculty had agreed to confine himself to this case.

Lord Meadowbank thought that such a line of conduct could not be pursued. The question was neither a fit nor proper one.

Mr. Cockburn.—In general, evidence is adduced because it is entitled or presumed to be entitled to credit. Now, it is monstrous to suppose that I should not be allowed to shake the credit of a human being in respect to his evidence. (He then quoted a case lately tried in England, where a witness in a similar circumstance was examined and acknowledged that he had been guilty of the most atrocious crimes; in consequence of which his evidence was totally discredited.)

Mr. Alison replied, the law of England was in no point more opposed to the law of Scotland than in regard to evidence. A witness here could not be called on to answer for his whole life and conversation. The utmost license was allowed in England in cross-examination, but it is contrary to the uniform and fundamental law of Scotland.

Dean of Faculty.—I completely agree with my Learned Friend. Our object is to discredit, not to disqualify the witness. We wish to propose a question to try the veracity of this witness. The witness was warned that he was standing on his oath, being peculiarly situated, but it may happen in most cases that he will answer it, and answer falsely. If he answers truly, it will be for his credit; if falsely, it will then be for the benefit of my client.

Lord Meadowbank.—I regret having stated the impression made upon my mind by the bare announcement of the question proposed to be put to the witness, because I should most assuredly have rather, in a matter of this vast importance, have desired to obtain every light that could have been thrown upon it before I ventured to deliver my judgment regarding it. But perhaps my having done so had only the effect of my attention being more anxiously called to every word that dropt from my brethren at the bar, and if I were satisfied that if any thing that was suggested by them had the effect of shaking the opinion which occurred to me at first, nothing that I stated before could have prevented my honestly and frankly avowing it. I have, however, been confirmed in that opinion by finding that notwithstanding all the ingenuity of my learned brethren, they have said so little on the subject, and that they have been unable to show one single precedent in favour of their argument, except that which has been obtained from the law of England. Now, I for one throw the law of England altogether out of the question. It is, I believe, in matters of this kind diametrically opposite to ours. That law holds, that a witness has no protection from having been examined by the Public Prosecutor, on a criminal trial. We hold, that he has. It is quite absurd, therefore, to dream of drawing a precedent, which is to guide your Lordships, from the law of England. But even our law goes no farther than to protect witnesses from being subject to prosecution on account of matter immediately connected with the subject of the trial in the course of which they are examined. I understand it, therefore, to be admitted that, if the question proposed were admitted by your Lordships, the witness must be told that he is not bound to answer it, because it is beyond the competency of this Court to afford protection against being afterwards questioned for the perpetration of crimes which do not form the proper subject of inquiry in the present investigation. But I have always understood that the law of Scotland has gone a great deal further—that it allows no question to be put which a witness may not competently answer, and which, if answered, must not be sent to the Jury as a matter of evidence. Now, in the first place, I admit that it is quite competent for the prisoner to put any question relative to the matters at issue by which he apprehends that the credibility of the witnesses for the Crown, may, if answered, by possibility be shaken. The oath taken by the witness, binds him to speak the truth, and the whole truth; but that obligation goes no further than it refers to the matter before the Court. It neither does, nor has it ever been held, to bind him to speak to matters relative to which he has not been called legally to give evidence. I apprehend, therefore, that even the oath which has been imposed upon the witness, is not obligatory upon him to speak to matters not immediately connected with the subject of this trial—and, in fact, such was the opinion of the Counsel for the prisoners; for, upon their application, the witness was particularly warned that he was only required to speak the truth, and the whole truth, relative to the third charge in this indictment. I have always understood, however, that no question could be put, upon cross-examination, to a witness in this country, which would, if answered, have the effect of rendering him in truth inadmissible. All questions having that effect must be put as preliminary, and after the questions put to all witnesses by your Lordships before the examination commences. In that respect, very likely, we differ from the law of England; but, for the reasons assigned by Mr. Hume in the passages read by Mr. Alison, I am not inclined to think that the rules of our law are inferior, or less effectual for the administration of justice. The object of our law has always been to get at the truth, and I suspect that is best to be obtained by preventing witnesses being harassed in the way that would result from such questions as the present being held to be admissible. But further still, suppose, in the second place, that the witness answers the question that has been put in the affirmative, and depones that he has been present at more murders than the one in question, what is to be the result? Is the Lord Advocate upon the re-examination to ask him at what murders he has been present, and who was concerned in those murders; or to go into an examination of all the matters connected with those cases? If he is, we may be involved in an inquiry into the circumstances connected with the other murders in this indictment, which are not now the subject of trial, and which your Lordships, by your interlocutor, have precluded from being the subject of trial. I cannot think that such can be your Lordships’ intention: yet the Court must be prepared either to go this length or not, before allowing a question to be put which must open up such a field of inquiry, for if the prisoner is entitled to put the one question, it must follow that the prosecutor is entitled to put the other, and if you do permit such an inquiry, you must be prepared to send the answers so given, and the evidence so arising, to the jury for their consideration. And what would be the consequence? By the evidence thence arising, and the suspicions thence created, the prisoners might be convicted upon matters not at issue in this indictment. Nor is it enough to say that this has been occasioned by the prisoner himself; for the law of this country interposes to protect a prisoner from his own mistakes—it lays down rules by which, in all cases, protection shall be afforded against either accident or error; and as I conceive it would be highly erroneous to send such matters to a jury, and yet that we are entitled to permit no questions to be put, the answers to which must not be sent to the jury, I think, this question cannot be admitted. But I set out with saying, that I do not think any question can be sustained by your Lordships, which, if answered in the affirmative, would disqualify a witness. Thus, suppose that the question put were, Have you committed ten acts of perjury—and the answer were in the affirmative, what is to be the result?—Your Lordship must tell the jury either that the witness’s answer is true, or that it is false. If true, must it not also be added that he cannot be believed upon his oath; and if it appears not to be true, then he is equally incredible. By admitting such questions, therefore, the necessary result is that you put it in the power of the witness to disqualify himself; and that, I have invariably understood, I can solemnly assure your Lordships, to have been a principle reprobated by the law of this country.

The Lord Justice Clerk thought that the question might be put, but that the witness should be cautioned that he was not bound to criminate himself, for if he answered the question the Court could not protect him.

Lord Mackenzie thought the question might be put. The witness being warned that he is not bound to criminate himself, and told that he has no protection from the Court, but for the crime now before it. The admission of his having been guilty of a secret crime could not disqualify him. He had yet seen no sufficient authorities to shake that opinion.

The Lord Justice Clerk agreed with Lord Mackenzie, although he thought with Lord Meadowbank that it was the “most extraordinary question he ever heard;” but the case being an extraordinary one, allowance must be made.

The Lord Advocate wished to know in what situation he was placed. Was he allowed to ask him, if he confessed—“Of what murders were you guilty?”

Mr. Cockburn.—We put that question, and the Lord Advocate is entitled to put what other he chooses. I cannot state the thing more generally. We intend to object to no question the Lord Advocate may choose to ask.

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