Читать книгу WEST PORT MURDERS (True Crime Classic) - Various Authors - Страница 7

1 George Tait, Esquire, sheriff-substitute of the shire of Edinburgh.

2 Archibald Scott, procurator-fiscal of said shire.

3 Richard John Moxey, now or lately clerk in the sheriff-clerk’s office, Edinburgh.

4 Archibald M‘Lucas, now or lately clerk in the sheriff-clerk’s office, Edinburgh.

5 Janet Brown, now or lately servant to, and residing with, Isabella Burnet or Worthington, now or lately residing in Leith Street, in or near Edinburgh.

6 The foresaid Isabella Burnet or Worthington.

7 Elizabeth Graham or Burke, wife of Constantine Burke, now or lately scavenger in the employment of the Edinburgh police, and now or lately residing in Gibb’s close, Canongate, Edinburgh.

8 The foresaid Constantine Burke.

9 Jean Anderson or Sutherland, wife of George Sutherland, now or lately silversmith, and now or lately residing in Middleton’s Entry, Potter-row, Edinburgh.

10 William Haire or Hare, present prisoner in the tolbooth of Edinburgh.

11 Margaret Laird or Haire or Hare, wife of the foresaid William Haire or Hare, and present prisoner in the tolbooth of Edinburgh.

12 Jean M‘Donald or Coghill, wife of Daniel Coghill, now or lately shoemaker, and now or lately residing in South St. James’s street, in or near Edinburgh.

13 Margaret M‘Gregor, now or lately servant to, and residing with, John Clark, now or lately baker, and now or lately residing in Rose street, in or near Edinburgh.

14 Richard Burke, son of, and now or lately residing with, the foresaid Constantine Burke.

15 William Burke, son of, and now or lately residing with, the foresaid Constantine Burke.

16 Janet Wilson or Downie, wife of James Downie, now or lately porter, and now or lately residing in Stevenlaw’s close, High street, Edinburgh.

17 Mary Downie, daughter of, and now or lately residing with, the foresaid James Downie.

18 William Cunningham, now or lately scavenger in the employment of the Edinburgh police, and now or lately residing in Fairley’s Entry, Cowgate, Edinburgh.

19 George Barclay, now or lately tobacconist in North College street, in or near Edinburgh.

20 David Dalziell, now or lately copperplate printer, and now or lately residing with his father, George Dalziell, now or lately painter, and now or lately residing in North Fowlis’ close, High street, Edinburgh.

21 Margaret Newbigging or Dalziell, wife of the foresaid David Dalziell.

22 Joseph M‘Lean, now or lately tinsmith, and now or lately residing in Coul’s close, Canongate, Edinburgh.

23 Andrew Farquharson, now or lately sheriff-officer in Edinburgh.

24 George M‘Farlane, now or lately porter, and now or lately residing in Paterson’s court, Lawnmarket, Edinburgh.

25 John Brogan, now or lately in the employment of John Vallence, now or lately carter, and now or lately residing in Semple street, near Edinburgh.

26 Janet Lawrie or Law, wife of Robert Law, now or lately currier, and now or lately residing in Portsburgh or Wester Portsburgh, in or near Edinburgh.

27 Ann Black, or Connaway, or Conway, wife of John Connaway or Conway, now or lately labourer, and now or lately residing in Portsburgh or Wester Portsburgh aforesaid.

28 The foresaid John Connaway or Conway.

29 William Noble, now or lately apprentice to David Rymer, now or lately grocer and spirit-dealer in Portsburgh or Wester Portsburgh aforesaid.

30 James Gray, now or lately labourer, and now or lately residing with Henry M‘Donald, now or lately dealer in coals, and now or lately residing in the Grassmarket, Edinburgh.

31 Ann M‘Dougall or Gray, wife of the foresaid James Gray.

32 Hugh Alston, now or lately grocer, and now or lately residing in Portsburgh or Wester Portsburgh aforesaid.

33 Elizabeth Paterson, daughter of, and now or lately residing with, Isabella Smith or Paterson, now or lately residing in Portsburgh or Wester Portsburgh aforesaid.

34 The foresaid Isabella Smith or Paterson.

35 John M‘Culloch, now or lately porter, and now or lately residing in Alison’s close, Cowgate, Edinburgh.

36 John Fisher, now or lately one of the criminal officers of the Edinburgh police establishment.

37 John Findlay, now or lately one of the patrole of the Edinburgh police establishment.

38 James Paterson, now or lately lieutenant of the Edinburgh police establishment.

39 James M‘Nicoll, now or lately one of the serjeants of the Edinburgh police establishment.

40 Mary Stewart or Stuart, wife of Roderick Stewart or Stuart, now or lately labourer, and now or lately residing in the Pleasance, near Edinburgh.

41 The foresaid Roderick Stewart or Stuart.

42 Charles M‘Lauchlan, now or lately shoemaker, and now or lately residing with the foresaid Roderick Stewart or Stuart.

43 Elizabeth Main, now or lately servant to the foresaid William Haire or Hare.

44 Robert Knox, M. D. lecturer on Anatomy, now or lately residing in Newington place, near Edinburgh.

45 David Paterson, now or lately keeper of the Museum belonging to the foresaid Dr. Robert Knox, and now or lately residing in Portsburgh, or Wester Portsburgh aforesaid, with his mother, the foresaid Isabella Smith or Paterson.

46 Thomas Wharton Jones, now or lately surgeon, and now or lately residing in West Circus place, in or near Edinburgh, with his mother, Margaret Cockburn or Jones.

47 William Ferguson, now or lately surgeon, and now or lately residing in Charles street, in or near Edinburgh, with his brother, John Ferguson, now or lately writer.

48 Alexander Miller, now or lately surgeon, and now or lately residing in the lodgings of Elizabeth Anderson or Montgomery, now or lately residing in Clerk street, in or near Edinburgh.

49 Robert Christison, M. D. now or lately Professor of Medical Jurisprudence in the University of Edinburgh.

50 William Pulteny Alison, M. D. now or lately Professor of the Theory of Physic in the University of Edinburgh.

51 William Newbigging, now or lately surgeon, and now or lately residing in St. Andrew’s square, Edinburgh.

52 Alexander Black, now or lately surgeon to the Edinburgh police establishment.

53 James Braidwood, now or lately builder, and master of fire-engines on the Edinburgh police establishment.

54 Alexander M‘Lean, now or lately sheriff-officer in Edinburgh.

55 James Evans, student of medicine, now or lately residing with Mr. James Moir, surgeon, residing in Tiviot-row, in or near Edinburgh.

A. WOOD, A. D.

* * * * *

Dean of Faculty.—We have given in separate defences, which may as well be read now,—beginning with the defences for the male prisoner.

The defences for Burke was then read as follows:

The pannel submits that he is not bound to plead to, or to be tried upon a libel, which not only charges him with three unconnected murders, committed each at a different time, and at a different place, but also combines his trial with that of another pannel, who is not even alleged to have had any concern with two of the offences of which he is accused. Such an accumulation of offences and pannels is contrary to the general and the better practice of the Court; it is inconsistent with right principle, and indeed, so far as the pannel can discover, is altogether unprecedented; it is totally unnecessary for the ends of public justice, and greatly distracts and prejudices the accused in their defence. It is therefore submitted that the libel is completely vitiated by this accumulation, and cannot be maintained as containing a proper criminal charge. On the merits of the case, the pannel has only to state that he is not guilty, and that he rests his defence on a denial of the facts set forth in the libel.

The defences for Helen M‘Dougal were next read as follows:

If it shall be decided that the prisoner is obliged to answer to this indictment at all, her answer to it is, that she is not guilty, and that the Prosecutor cannot prove the facts on which his charge rests. But she humbly submits that she is not bound to plead to it. She is accused of one murder committed in October 1828, in a house in Portsburgh, and of no other offence. Yet she is placed in an indictment along with a different person, who is accused of other two murders, each of them committed at a different time, and at a different place, it not being alleged that she had any connection with either of these crimes. This accumulation of pannels and of offences is not necessary for public justice, and exposes the accused to intolerable prejudice, and is not warranted, so far as can be ascertained, even by a single precedent.

Mr. Patrick Robertson then addressed the Court in support of the defences. In this indictment there were two prisoners named, but these two prisoners did not appear on the face of it to have any connection with each other. The major proposition contained a simple charge of murder, without specifying any aggravation. In the minor proposition, however, there were three distinct and totally unconnected charges of murder. The first was against Burke alone, and was charged as having been committed in April last, in a house in the Canongate. But it was not stated that he had any accomplices. He was the sole person charged with that offence. It appeared, indeed, from the description of the crime, that he was charged “with the wicked, aforethought purpose and intent, of disposing of and selling the body, when murdered, as a subject for dissection, or with some other wicked and felonious purpose and intent to the Prosecutor unknown.” But, while, on the one hand, there was no aggravation laid in the major proposition; yet on the other the Prosecutor did not confine himself to one species of intent, but libelled two—the intent to sell the body to the surgeons, and some other sort of vague undefined species of intent to the Prosecutor himself unknown. The second article in the indictment charged another murder, alleged to have been committed in the month of October, in a place called Tanner’s Close, in Wester Portsburgh. In this charge also William Burke is the only person accused of that offence, and the intent laid is the same as in the former instance. Then there was a charge of a third murder, committed at a different place and time, viz. at a house in Portsburgh on the 31st October; in which charge both William Burke and Helen M‘Dougal were included: and, after describing the offence, the intent libelled is the same as in the two former cases. Thus we had three murders charged against the prisoners; two against Burke alone, and one against Burke in conjunction with M‘Dougal; all of which were committed at different times and in different places, without any connection whatever between them: and these charges were laid without any aggravation. Then five different declarations by Burke, and two by M‘Dougal, were also libelled on, together with eight articles to be adduced as evidence against the former, and six against both; and in addition to all this, they were served with a list of fifty-five witnesses by whom these different and totally unconnected charges were to be proved. Now the question was, whether this charge, involving such an accumulation of unconnected offences, was consistent with our practice, with the humane principles of our law, and with that sound and proper discretion which the Court was not only entitled, but bound to exercise. But the first and most material point was, whether the prisoners would suffer prejudice by the mode in which the libel had been framed; for if that could be made out, it would justify their Lordships in the exercise of the discretion with which they were entrusted, in separating the different charges, or in selecting one prisoner, and postponing another, according to the circumstances of the case. The question then was, whether the prisoners would suffer prejudice in going to trial with the libel as it now stood. And, in considering this, it would be observed that it was not charged that there was any natural connection between the crimes committed. There was certainly none in law; and with the exception of the mode of the murder and the intent, there was not the slightest pretence for saying there was any connection between them. But the intent was not laid absolutely and peremptorily. It was conditional: “Either you committed these acts with the wicked, aforethought purpose and intent of selling the bodies to the surgeons for dissection, or with some other purpose or intent to the Prosecutor unknown.” This indeed would compel the Prosecutor to prove that the murder was committed for the purpose of handing over the bodies to dissection; but he might also bring in under it a very different purpose or object, as, for example, that it was done for the purpose of robbery, or to gratify private revenge. In the major proposition, however, there was no aggravation; and it was not said that there had been any conspiracy, that these murders were part of a system; they were laid as three unconnected offences, committed at different times and at different places. Now he prayed their Lordships to keep in mind that murder was not like any of the other offences which usually occurred in the practice of the Supreme Criminal Court; it was one which, in every case, when brought home to a pannel, was visited with the highest punishment of the law; and therefore it differed from all the offences to which it was sometimes likened, and required greater caution on the part of those by whom it was to be tried. As applicable to the case of Burke, however, three murders were charged; and this charge was calculated in the most serious degree to prejudice him. Each specific offence, it might be said, would require to be supported by its own specific evidence; but it was impossible to find any jury so dispassionate as not to borrow some light from the one to enable them to decide on the other; it was impossible for the jury to separate the evidence in one case from that in another; it was impossible that one murder not proved could be separated from any light thrown upon it by another not proved; nay, though neither the one nor the other might be proved, it might still be held, that upon the whole, from the massing or blending of unconnected acts, enough was made out to warrant a conviction. And all this was aggravated by the prejudice arising from the manner in which the alleged murders were said to have been committed, and in regard to which so strong a degree of excitement existed in the public mind. Then observe the oppression in the preparation of the trial; observe the situation in which the pannels were placed. Three murders were charged, with a list of fifty-five witnesses; besides seven declarations, five by the one, and two by the other. One set, it might be said, was against one prisoner, and the other against the other; but it was impossible so to separate, or to analyse the evidence as not to admit against the one evidence which was calculated to affect the other; and by thus mixing up and massing together the whole into an unnecessary accumulation of crime, to come to the same conclusion in regard to both. Look to the case of Helen M‘Dougal, and it will be seen the prejudice must operate still more strongly against her. She is accused of only one crime, and it is not said that she had any connection with the others. But this charge of murder, committed in the latter end of October, is brought to trial, combined with two others committed, one in April, six months previously, and the other in the beginning of October. Where is this to stop? If the Prosecutor is allowed to proceed in this way, may he not on the same principle combine ten murders against ten prisoners, accused of ten different offences, committed in as many different counties? He submitted that there must be some limitation; and the question was, whether the Court could sustain the present charge by which one individual, accused of one offence, is mixed up with another, accused of two, with which she is not alleged to have had any concern. Imagine this case. At the end of the indictment, eight articles were specified against Burke, and six more against Burke and M‘Dougal conjointly. Take the first—the skirt of a gown—and suppose it proved against Burke alone. It could not be adduced as evidence against Helen M‘Dougal. But suppose it was traced into her possession, and that a witness was called to prove that it belonged to Mary Paterson or Mitchell. This would be conclusive as to M‘Dougal’s connection with Burke. But it might be said that the Judge would tell the Jury to strike this out of their notes. That was an easy operation; but could they strike it out of their minds as easily as out of their notes? Then in what circumstances would Helen M‘Dougal be placed? An article not libelled against her would be checkmate to her defence. She would be taken by surprise,—she would be thrown off her guard; and although the gown had come fairly and honestly into her possession she could produce no evidence to instruct the fact. He put this as an illustration. So far as the female prisoner was concerned it would be fatal.

But was this a legal proceeding? If there be a prejudice existing, the prisoner is entitled to the fairest possible defence. The more atrocious the offence, the more guarded and cautious ought to be the modes of procedure. So far, however, as they could discover from the records of the Court, this was the first case in which it had been attempted to charge three murders in the same indictment. There had been several instances of three persons slain at the same time, as in the Aberdeen riots, by a discharge of musketry, and in the case where a whole family was poisoned: these, however, as Mr. Hume observed, were all parts of the same foul and atrocious offence. But there was no example, in the history of the Court, of combining three unconnected offences against one person; far less of combining three against one person who was not alleged to have any connection with two of them, and was only implicated in a third, which had no manner of connection with those which preceded it. Sir George Mackenzie, who would not be suspected of any partiality to the prisoner, laid down the principle most clearly, that different parties ought not to be thus combined in an indictment. “A person accused,” says he, “was not obliged to answer of old but for one crime in one day, except where there were several pursuers, Quoniam Attachiamenta, cap. 65. by which, accumulation of crimes was expressly unlawful, sed hodie aliter obtinet, for now there is nothing more ordinar nor to see five or six persons in one summonds or indictment; and to see one accuser pursue several summondses; and yet seeing crimes are of so great consequence to the defender, and are of so great intricacy, it appears most unreasonable that a defender should be burthened with more than one defence at once; and it appears that accumulation of crimes is intended, either to læse the fame of the defender, or to distract him in his defence.” Title 19, § 7. Here the principle was brought out in the clearest manner—that salutary principle which says that no man ought to be called upon to answer to more than one crime in one libel; since the accumulation of crimes was calculated “either to læse the fame of the prisoner, or to distract him in his defence.” The learned Counsel then referred to the work of Mr. Baron Hume. That learned author treats of the accumulation of crimes under different heads: first, of those which are of one name and species, and of one class and general description; secondly, of those criminal acts, though of different kinds and appellations, have a natural relation and dependence; and, thirdly, of that sort of cumulatio actionum, which consists in the charging of several persons in the same libel with separate and unconnected crimes. The first of these, he argued, had no relation to the present case, because it did not include murder. All the cases referred to were cases of housebreaking and theft; and though the former was a capital offence, yet it was a very different one from murder. No case of the latter was indeed quoted. The author treated merely of connected crimes, as robbery and murder. But no injury was done by such accumulation. They were parts of the same foul and atrocious proceeding, and they had a natural and necessary dependence. But in the present case there was no natural dependence, and not even an allegation that the prisoners were connected.

He then proceeded to the consideration of heterogenous charges, as of murder and of theft. Some of these, he said, were not cases to be followed at the present day: and he instanced that of Walter Buchanan, who was accused of ten different crimes in one libel; namely, fire-raising, attempts at fire-raising, attempts to poison, theft, reset of theft, the harbouring, out-hounding, and maintaining of thieves and robbers, sorning and levying black mail, and killing and eating of other people’s sheep. Here, however, the Lords restricted the trial to the more special charges. He now came to the principle, and mentioned a case in 1784, when the Lord Advocate did depart from several of the charges. In regard to accumulation of parties, Mr. Hume put a case of several persons being called to answer in one libel for the same fact; but then, observe the remedy. “On any occasion when they see cause, especially if it appear that the Prosecutor meant to lay the pannels under this disadvantage (he begged to disclaim any insinuation that such was the intention of the Prosecutor in the present instance,) the Court may and will separate the trials of the several culprits, and send those to an assize, in the first place, by themselves, who are meant to be called as witnesses for the others,” vol. ii. p. 170. The learned Counsel then proceeded to the third sort of cumulatio actionum, that of charging several persons in the same libel with separate and unconnected offences, and contended very ably that the case before the Court fell under this description.

In conclusion, he referred to the English practice as illustrative of the principle for which he had been contending, and referred to a decision of Lord Ellenborough, as reported in Campbell, vol. ii. p. 131, and also to the authority of Chitty, vol. i. p. 252. By the law of England, two felonies may be combined in one charge against two separate prisoners; but it is usual for the Judge, in his discretion, to call upon the prosecutor to make his election, and to proceed with a specific charge against one individual. In point of law they may be combined, but the judges in their discretion separate them; and for this reason among others, that the combination would prejudice prisoners in their challenge of the jury.

The Lord Advocate replied at some length. After complimenting the learned counsel who had just concluded, on the able manner in which he had opened the objections submitted to the consideration of the Court, he stated that he thought them ill-founded. His learned friend mixed up two objections altogether different. His first objection was to bringing two prisoners to trial in the same indictment, and his second to charging three different crimes in that indictment. He would deal very shortly with the first. The woman was charged as having been concerned with the man in one of the three murders. And this was sanctioned by the law of the land. He put her in the indictment that she might not be prejudiced. If she had been put into a separate indictment, the public would have known the whole evidence before she had been put upon her trial, and the prisoner would have had the best possible reason to complain. This would have been the case had he first brought the man to trial, and afterwards the woman, adducing against her the same, or nearly the same evidence, which had previously been adduced against the man. It was to obviate this, and to prevent her from being prejudiced, that he had put her in the same indictment. “God forbid,” said his Lordship, “that any person holding the situation I do, should do any thing to prejudice a prisoner on his trial.” The very contrary motive had guided him; but if he proceeded not against the woman to-day, he would ten days hence, when she could not insist on that which she now says will prejudice her. Nor, in a case of this sort, would he be restrained from doing his duty to the country by any consideration founded upon what were called the interests of science. It was enough for him that a great crime had been committed; a crime unheard of before in any civilized country: that the public mind had in consequence become strongly agitated; and that the duty he owed to the country left him no alternative. He was determined therefore to probe and sift the whole matter to the bottom; nothing should deter him from doing so; and he repeated, that if he was compelled to desert the diet against this woman now, he would infallibly bring her to trial ten days hence. Then she would find whether she had been prejudiced by the whole evidence in this case having gone abroad to the world.

The libel charged three separate acts; and in the major proposition the crime specified was murder without any aggravation. These murders were detached, as having taken place within the last six months; but they were all committed in Edinburgh, and all were charged as having been perpetrated with the same intent, which however is no aggravation. Murder, indeed, could scarcely admit of aggravation. When a prosecutor libels a positive intent, he is tied down to that, and there is no alternative. These cases were all of the same description—all murders, and all committed with the same intent. He admitted, that looking to the proceedings of the Criminal Court, it might be impossible to find a case of three murders combined in one indictment; but the present was a case unprecedented in the annals of this or of any other civilized country. There were numerous examples, however, where different charges were combined in the same libel. The passage quoted from Sir George Mackenzie did not apply to the case before the Court. It referred to a case of a nature totally different. He then quoted Hume II. 166, and maintained, upon his authority, that the crimes charged being all of the same name and species, might properly be included in the same indictment. It would indeed be dreadful if a prisoner, after having committed three murders, could only be tried for one of them. Mr. Hume referred to the case of James Inglis, tried upon three charges of horse-stealing, each of which, if proved, involved a capital punishment. Now, would not every argument which had been employed against the present libel apply to such a charge? Again, two acts of highway robbery were charged in the same indictment, any one of which would have been sufficient, if proved, to lead to a capital conviction. The whole tenor of our practice, indeed, confirmed this mode of procedure, and, if the contrary obtained—if charges of the same nature and description were put in separate indictments, prisoners would be exposed to the intolerable hardship of undergoing trial day after day; a hardship which he conceived would be incomparably greater than any that could possibly arise from the practice now complained of. He then referred to the case of Nairne and Ogilvie. Here it had been objected that there was a cumulatio actionum, but the objection had been repelled. His Lordship then cited the case of James Morton tried at the Glasgow Circuit in 1823 on four separate acts; of Donaldson Buchanan also tried there for stouthrief, housebreaking and theft (all separate acts); of Beaumont, tried at Aberdeen in 1826, where six acts of housebreaking were charged; and of Gillespie, tried at Aberdeen in 1827, upon no less than nine separate acts of forgery. His Lordship then quoted the case of Surridge and Dempster, indicted for two separate acts of murder, committed indeed at the short interval of an hour, but still in all respects completely separate acts. Upon the strength of these consecutive authorities, all of which went to support the principle for which he contended, his Lordship submitted that the objection ought to be repelled.

The Dean of Faculty, in reply to the Lord Advocate, argued powerfully in support of the views which had been opened by Mr. Robertson. His Right Honourable and Learned Friend (the Lord Advocate) might rely upon it that, on the part of the prisoner’s Counsel, no doubt whatever was entertained of the perfect propriety of the motive by which his Lordship had been actuated in framing the present indictment; they were convinced that he had prepared and brought forward the case in the manner which he conceived least likely to prejudice the prisoners or to distract them in their defence. But, on the other hand, he could with equal truth and sincerity assure his Lordship, that the objection now raised had been taken from a firm conviction that the sustaining of it was necessary for the safety of the law, and indispensable to the ends of justice. It had been said that the decisions of the Court ought to be adhered to, that its practice ought not to be infringed upon; and yet it was admitted that the present was the first case which had ever occurred of three separate acts of murder being combined in the same indictment. In this situation, then, were they not justified in submitting to the Court the objection which had been taken upon the ground of this unprecedented combination? The Learned Lord had intimated an intention to desert the diet pro loco et tempore against the pannel M‘Dougal. But the question still remained whether the interests of the male prisoner would not be dreadfully prejudiced in his defence, if put upon his trial for three separate acts of murder, committed at different times, and in different places. Now he contended that the present form of the indictment was adopted to effect an illegitimate object: it was calculated to lead to great injustice to the prisoner. What the Prosecutor insisted on passing to a Jury was an indictment charging three distinct murders: he averred that there were separate and unconnected acts of this crime; and he assumed that there was sufficient proof to bring them home to the prisoner. But every man, whatever the number of charges against him might be, was to be held and presumed to be innocent till the contrary was proved, and a conviction obtained against himself. There might, or there might not be sufficient proof to convict him; but he contended for the benefit of the ordinary presumption. “Give us,” said the Learned Counsel, “the benefit of this presumption, to which we are entitled, and then let us see how the case will stand.” In the indictment before their Lordships three murders were charged; murders committed at different times; murders of different persons, totally unconnected and living in different places; and the last of these was stated to have been done in conjunction with a third person who had no connection with the other two. But if the Public Prosecutor were in a situation to prove one of these murders, it would infer the death of the pannel. Then for what end or purpose of public justice were three murders crammed into one indictment? If the Prosecutor was unable to prove any one of them, there was no necessity surely for putting it into this indictment. Suppose evidence were brought to prove the first, but totally failed, and the second, but also failed, or at least left them in such doubt that a verdict of not guilty or not proven would have been returned if they had been tried separately; nobody would maintain that a false or improbable charge might not become a make-weight in the evidence to prove a separate and distinct murder. The prisoner might take his trial on a combination of such charges, but unless your Lordship interfered ex parte judicis, the result would be what he described. The prejudice arose from this talis qualis accession, not proved, but assumed; and from the prejudice thus credited the prisoner might be convicted. They could not lay the present indictment before a Jury without necessarily prejudicing that Jury; and yet the Lord Advocate came forward and alleged that he thought the whole objection frivolous and untenable, saying that it was an attempt to smother the indictment altogether; that is, he called an objection to an indictment, which did not contain a specific allegation of a specific crime, but a congeries of offences huddled together and charged in cumulo, an attempt to smother it! How smothered? If the indictment was improperly framed, if two or three charges were crammed into it instead of one, the prisoner was entitled to have it smothered. He was entitled to a fair trial, and if the libel was so constructed that this could not be afforded him, he had a right to have it smothered. Every thing relative to a specific charge their Lordships would receive, if brought forward in a competent form; but the point previously adverted to still returned—Were they to receive evidence in regard to two charges which might not be proved, and which yet might affect the minds of the Jury in regard to the third and lead to a conviction? The Learned Lord indeed said, that there was only one sort of evidence, and that the crime had been committed in the same place. But the place was not the same; in fact, the loci were as distinct as if the one crime had been committed in the Canongate of Edinburgh and the other in the remotest corner of Scotland. In popular language and popular conceptions, they might be held and represented as the same, but this would never do in matters of law. They must have the locus strictly libelled. Nor was the time the same. The first was committed at the distance of six months from the second: the first took place in April, another took place in the beginning of October, and a third occurred in the end of October. Now, might not the prisoner prove an alibi in regard to one of these crimes though not in regard to the other? But, further, the acts were different. It was in vain to say that all the murders were of the same genus, for this might be said of all the murders that ever had been or ever would be committed; and on the face of the indictment they were all different. In the major proposition no aggravation was libelled, but it was said that all these murders had been committed with the intent of disposing of the dead bodies to the Surgeons, or with some other purpose or intent to the Prosecutor unknown. Did the Learned Lord mean to say that he would fail if he did not prove this intent? But that purpose was a separate crime, as was sufficiently manifest from the late case (among others) of Bradwell at Glasgow. It could not, therefore, be maintained that he would fail by not proving the intent—by not proving a different crime from that libelled. It was perfectly plain that it was competent to prove the intent, but the not proving it could not in the least degree affect the libel. The crime consisted in the wilful murder; and unless the motive amounted to a justification, or an alleviation which reduced it to culpable homicide, the intent would be inferred from the fact, and the highest punishment of the law would follow a conviction. The evil of an indictment so framed as the present was to produce an illegitimate effect by this combination of intention or motive with the crime charged. The intent charged might have been laid as a separate offence; but had this been done we should now have been on a different objection, namely the competency of such a charge. To these principles in the abstract, no exception could be taken. Now, the Court would consider the situation in which the pannel was placed. He had been put upon his defence fifteen days after his examination; five declarations emitted by him were libelled on; and most manifestly there did exist great prejudice against him. He did not say that this would be a sufficient reason for postponing the trial, but it was a sufficient reason for the Court taking care that he suffered no injury in his defence. Another matter in which the prisoner was prejudiced, by lumping together separate charges in the same indictment, was in his challenges of the Jurymen. It was evident that the prisoner had an interest that way. He did not know who the Jurymen were to be, and of course could not mean to say that there was any danger of an improper person being balloted; but he had a clear right in the abstract—a right of which he ought not to be deprived. If he had been tried on separate indictments he would have had fifteen challenges, whereas by the combination of the charges in the same indictment he had only five. Now there might be Jurymen liable to challenge in one case and not in another, just as one witness might be perfectly unexceptionable in one case and liable to the most serious and fatal objections in another. He contended, therefore, that in every view the principle was in their favour, as well as the justice and imperious necessity of the case.

The Learned Gentleman then referred to the authorities. He began by commenting on the passage which had been quoted from Sir George Mackenzie; which, he contended, the Lord Advocate had misunderstood, as it was quite evident, that George Mackenzie used the word “summonds” as synonymous with “indictment,” since an “accumulation of crimes,” the subject treated of, could not be predicated of a summons in the common acceptation of that term. And the doctrine laid down by this author was that an “accumulation of crimes is intended, either to læse the fame of the defender, or to distract him in his defence.” Now what did the Lord Advocate say in answer to this? He referred to a passage in Mr. Baron Hume’s work where that learned person says, that “the competency has never been disputed of charging in one libel any number of criminal acts, if they are all of one nature and species, or even of one class and general description.” But it was evident that the offences of which Mr. Hume spoke were of a different description from murder; for he expressly added the qualification, “so as to adhere in this point of view, and stamp a character on the pannel as one who is an habitual and irreclaimable offender in this sort,” (vol. ii. p. 166.) And accordingly the instances which he gave were of the crimes of theft and housebreaking; crimes which were susceptible of being aggravated by habit and repute, and of which the punishment might be restricted. But murder admitted of no such aggravation, and never was restricted. Hear, however, what Mr. Hume said in reference to those cases: “The Court, whenever they find that the immediate trial of such manifold changes is likely to prove oppressive, either to the witnesses, the Jury, or themselves; and still more, if they see cause to believe that it may embarrass the pannel in his defence, or beget prejudices against him in the minds of the Jury;—in any of these cases, they have it certainly in their power to divide or parcel out the libel, and proceed in the first instance to the trial of as many of the articles as may fitly be dispatched in a single diet, &c.” (vol. ii. p. 168.) The cases which occurred in 1696 might, however, be referred to in support of a contrary doctrine; but “if they are, I answer” said the Learned Counsel—“Are your Lordships prepared to do what was done in those cases? Are they to rule your Lordships’ decision in a case without any precedent whatsoever?” But even these did not bear on the present case; and none adverse to the principle had occurred since the year 1784. Even the case of 1784 itself was not opposed to the principle. There, there was connection. The case of Surridge and Dempster was mentioned as a case of two murders, as a case where more than one murder was charged in the indictment; but these were clearly partes ejusdem negotii; they were committed in immediate sequence and in furtherance of the same “foul and atrocious design.” It was quite plain, therefore, that the cases quoted did not apply; that they had no bearing whatever on the present case, where three different and unconnected murders were charged against the same individual, and where another party was mixed up with him in one of the alleged crimes. Were they not entitled, then, to ask their Lordships, in the exercise of a sound discretion, (which it was not denied the Court possessed) “to divide and parcel out” the charges in this indictment, and to find it incompetent to go to trial upon it as it presently stood? The Learned Counsel then adverted to the state of the law of England on this subject, commenting on the passage quoted by Mr. Robertson from the work of Chitty, and concluded by observing that this was in all respects a most serious case, and deserved the utmost attention of the Court. No instance of three murders charged in one indictment had happened in his time; many instances had indeed occurred in former times; yet it had never been the practice to try the charges in cumulo. But the more anomalous and unprecedented the case, the more necessary was it to the ends of justice, and the more important to the law, that it should be proceeded in with the utmost caution.

Their Lordships then delivered their opinions on the objection which had been raised and so ably argued by the prisoner’s Counsel.

* * * * *

Lord Pitmilly.—The Court were peculiarly circumstanced in being called upon to give an opinion on an indictment in a case, part of which must unquestionably go to trial. He was quite clear that one of the charges must undergo an investigation; that the trial to that extent must proceed. But Counsel were by no means precluded from stating the objection they had brought forward, and which, appearing to them in the light it did, it became their duty to press upon the attention of the Court. This accordingly they had done with equal zeal and ability, in a manner which did honour to themselves, and reflected credit on the Bar of Scotland. But it was the duty of the Court to be calm and guarded; to express their opinions in a dignified and dispassionate manner; and to avoid any thing which was either calculated to unsettle the established principles of that law or to form a bad precedent for the future. He agreed that there were two different questions before the Court; the first of which was, whether Helen M‘Dougal ought to have been included in the indictment. And on that point he had no doubt of the Prosecutor’s right so to include her. He approved of what the Lord Advocate had done, and he had no hesitation in saying, that the trial should now proceed. The other question was of a very different nature; namely, whether it was competent, and also whether it was proper and fitting, that Burke should now go to trial upon an indictment, charging three murders, or should be tried on one or other of these charges. Of the competency he had no doubt whatever. His Lordship was much struck with the indictment when he first saw it, and he felt it to be his duty, as it is always the duty of the Court on such occasions, to inform his mind in regard to the principle on which it had been framed. He went to the authorities on the subject, and after a careful examination of them he had no doubt of the competency. When he looked at the cases of Beaumont and Gillespie, particularly the latter, where nine separate acts of forgery were charged, he could not have the smallest doubt as to the competency of including these several charges in the same indictment. Our practice on this point was too firmly fixed to admit of any question, that one individual may be charged with several crimes of the same nature, and committed at different times. The English cases referred to he put altogether out of view, because this was not a new point, now raised for the first time, and to be settled by a reference to principle or analogy, but a matter fixed by our own practice, and not again to be brought into dispute. He was therefore quite clear as to the competency. But where it was a question of discretion merely, and where that discretion, as in the present case, was strongly appealed to, the Court would interfere, because it was their bounden and sacred duty to prevent a prisoner from suffering prejudice in his defence. The present prisoners, by their highly respectable Counsel, declared that they would suffer prejudice if they were put upon their trial on all the charges, and it was not for the Court to say whether that might or might not be the case. Three consecutive trials might or might not be beneficial to the prisoner. In his opinion they were more advantageous to the Prosecutor. By this means he learned how to conduct his case; and if he saw a link awanting in one trial, he might endeavour, by means of additional evidence, to supply it in the next. It did appear to him, therefore, that what the pannels asked for by the mouths of their counsel, was calculated to do them more prejudice than submitting to go to trial upon the indictment as it now stood. But they had doubtless been well and judiciously advised, and were prepared to take the consequences. He held, however, that the Prosecutor had done right in including both of them in the same indictment; and that by doing so he had taken the only and most effectual means in his power not to prejudice them either in preparing for their defence or on their trial. He well remembered a case in which the danger, disadvantage, and odium attending consecutive trials were strikingly exemplified. It happened in consequence of the Aberdeen riots, and the parties were brought to trial at the instance of a private prosecutor. His Lordship was counsel for the pannels, and they were acquitted. Not satisfied with this, however, the private prosecutor reared up a new indictment upon new grounds. And he could never forget the feeling which was excited, by this attempt to bring the parties acquitted to a second trial, in the Court, the Bar, and the country at large; there was one general cry of indignation against a proceeding so shameless and oppressive; the consequence of which was, that the private prosecutor became alarmed, and the attempt was quashed. This was the natural course of things. And, in general, it was lenity, and humanity, and justice, to include all such cases in the same indictment. In the present instance, no result such as that which took place in Aberdeen was to be feared. But the Court being clearly vested with a discretion, and the pannels having strongly appealed to that discretion, it was his opinion that the cases should be tried separately.

Lord Meadowbank entirely concurred in the views of Lord Pitmilly. The nature of this case and the impression it had produced upon the public were such, that it required the most careful and anxious consideration; but he was confident that the more thoroughly their Lordships were convinced of the existing state of excitement in the public mind concerning it, the greater would be their anxiety that the prisoners suffered no prejudice on their trial or in their defence. The question here was one of very great and general importance. But if it had been entertained on the question of competency, it would have shaken the whole system of our criminal procedure. Our practice of accumulating a number of charges in the same indictment had been steady and uniform. With respect to the earlier cases referred to, particularly that in 1696, he must say that he could not for his soul comprehend upon what grounds the counsel for the prisoner had attempted to invalidate their authority. The particular case referred to occurred after the Revolution, when the Judges were as great and eminent lawyers as ever sat in that Court. But in order to show the uniformity of the practice, he needed not go farther back than the case of Murdiston and Miller, where several acts, committed by different individuals in different counties, were put into the same indictment; yet not one iota of an objection was urged against the proceeding similar to what they had heard to-day. Our own practice, in cases of forgery, which was a capital crime, left no doubt upon the matter. Several acts of this description of crime were constantly charged in the same indictment.—In cases of robbery, it was not competent to libel aggravation. The Prosecutor was not admitted to libel habit and repute. That was now settled law. It had not been so formerly; and accordingly, when he had the honour to fill the same situation, which his learned friend (the Lord Advocate) now held, he had directed an indictment to be raised to try the point,—and the law was now settled. But it was competent to accumulate several acts in the same indictment, and to have it tried by the same evidence and before the same Jury. It was competent where there was several acts of robbery charged against different individuals; and there was one case of a father and a daughter, where the daughter was charged with two acts, and the father with all the three libelled. He was therefore of opinion that the Lord Advocate had done right in proceeding as he did. But the Court had a discretion; and to that discretion the prisoners had appealed. But having stated his opinion of that discretion, he deemed it right to say, that the Court was not answerable for the consequences. The prisoners had exercised their discretion, and he warned them to consider well the step they had taken. As to the Court they were bound to sit there and try the cases one after another.

Lord Mackenzie also agreed with his learned brothers as to the competency. In so far as discretion was concerned he likewise concurred, upon the statement made by the pannel and his counsel that he would suffer prejudice. He saw that the pannel was well and ably advised; and he could not take it upon him to allege that there was any thing absurd or unreasonable in the request which had been made.

Lord Justice Clerk.—The only question here was as to the competency of the charge against Burke: for the Lord Advocate had intimated his intention not to proceed at present against the woman. After listening attentively to all that had been said, after considering the authorities, and recollecting something of the practice of this Court, he thought the indictment framed in a legal and proper manner. Burke was not accused of one crime, but of three different acts of the same crime; and, therefore, he did not come within the reach of those cases referred to by Mr. Hume. If this indictment was a bad one, the Court had been guilty of a great dereliction of its duty in sustaining many indictments framed upon precisely the same principle. He recollected a case of several acts of robbery, a capital crime, and one of the four pleas of the Crown, included in the same indictment; and how could they distinguish between such a charge and that of murder, which was another of the pleas of the Crown? In fact, it was not now in the power of the Court to depart from the practice which had been so firmly established and so steadily followed. The Court, however, had a discretion, and where it was appealed to they would exercise it. The Court had even found an indictment irrelevant where it was strongly alleged by the pannel that he would suffer prejudice were he tried upon it in its actual shape.—Upon the responsibility of the respectable Counsel, who had stated that the present prisoners would suffer prejudice if they were tried upon the indictment before them as it now stood, he was of opinion that the Court should interpose in virtue of its discretion. But they ought to do so upon principle. They ought to find the libel relevant, and also to find it competent to proceed to the trial of the charges seriatim, leaving it to the option of the Prosecutor to say which of them he might choose to begin with.

This accordingly became the judgment of the Court. The objection was repelled, but in respect of the allegation that the pannel would suffer prejudice were he tried upon the indictment as it stood, find it competent to proceed with only one of the charges at a time, leaving it to the Lord Advocate to say which of them he thinks proper to begin with.

The Lord Advocate.—In consequence of the opinion of the Court I shall proceed with the last charge, which includes both the man and the woman. The objection in regard to the latter has now been completely removed.

The Dean of Faculty.—I beg to remind the learned Lord of his former statement, that he would desert the diet against the woman.

The Lord Advocate.—The case is now completely changed. My former statement was made upon the supposition that the trial as to Burke was to proceed upon all the three charges at once.

The Prisoners on being asked by the Lord Justice Clerk, if they were guilty or not guilty of the crimes charged in the third article of the Indictment, each answered “Not guilty.” The following Jury were then chosen.

Nichol Allan, Manager of the Hercules Insurance Company, Edinburgh.

John Paton, Builder, do.

James Trench, Builder, do.

Peter M‘Gregor, Merchant, do.

William Bonar, Banker, do.

James Banks, Agent, Leith Walk.

James Melliss, Merchant, Edinburgh.

John M‘Fie, Merchant, Leith.

Thomas Barker, Brewer, do.

Henry Fenwick, Grocer, Dunbar.

David Brash, Grocer, Leith.

David Hunter, Ironmonger, Edinburgh.

Robert Jeffrey, Engraver, do.

William Bell, Grocer, Dunbar.

William Robertson, Cooper, Edinburgh.

First Witness called for the prosecution, was JAMES BRAIDWOOD, of the Fire Office Establishment, who being duly sworn.

Question. Was that plan made by you? A. It was.

Q. What plan is it? A. It is a plan of some houses in the West Port, to which I was conducted by an officer.

Q. Is the plan a correct one of the under ground houses? A. It is.