he may have been convicted once or twice, at considerable intervals from each other, without having either become a professional thief, or been known as such to the officers of justice.

Habite and repute can be laid only as an aggravation of a specific act of theft; and, therefore, the general charge cannot competently be made the subject of proof until the specific charge is established by legal evidence. It follows from this, that, if the special charge is not established, the jury cannot find the prisoner guilty of being habite and repute a thief alone, or, if they do, no sentence can follow on the verdict. So it was determined by the Court in the case of Allan Henderson, Glasgow, 15th September 1802; John Fleming, Stirling, April 1817; and David Beatson and John Macpherson, 17th July 1820: in all of which the Court determined that, upon a verdict finding the principal charge not proven, but the aggravation of being habite and repute a thief established, no sentence could follow.2

This aggravation may be proved either by the testimony of two witnesses, or by the testimony even of one witness, coupled with several convictions for theft.3 The first is the ordinary and unexceptionable mode of establishing the charge; but instances are not awanting of its being made out by the other and complex mode of proof. Thus, in the case of John Johnstone, June 19. 1786, three convictions were per se sustained as sufficient evidence of this aggravation; and, in the case of Rachel Ferguson, 13th March 1801, one conviction only was founded on in the libel with the testimony of a single witness.1 It is not safe, however, to trust the proof of this character to a single witness, unless he is supported by a series of convictions for theft extending over a course of years.

Contrary to the opinion of Burnett,5 it is now fixed, that, if the pannel be acquitted on a specific charge of theft, aggravated by being habite and repute a thief, he may be tried again next day, on another charge, aggravated by the same character. So the Court found, upon such an objection being stated in the case of John Reed, 1st August 1774, who was tried in that year on a charge of theft, aggravated by being habite and repute, although he pleaded that he had been tried on such a charge and acquitted eight years before. In truth, there is

4

1 Hume, i. 94.-2 Ibid. i. 94, 95.—3 Hume, i. 94; Burnett, 130. Hume, i. 94.—3 Burnett, 131.6 Hume, i. 95; Burnett, 131.

no foundation on principle for the objection, not only because the pannel may have acquired the character of a thief, though he had it not before, in the interval between the two trials, but because the character being laid only as an aggravation, necessarily shared the fate of the principal charge to which it was annexed, and the jury were compelled to acquit him of the whole, if the proof of that specific charge failed, how clearly soever it may have been established in evidence before them.1.

It was held by the Court, in the case of Peter Davidson, Aberdeen, September 1824, that it was not sufficient to stamp a pannel with the character of being an habitual thief that the police-officers swore he had borne that character for six weeks prior to the specific act charged against him. On the other hand, it is matter of every day's practice to find the aggravation proven by this character, having been fixed upon a prisoner at the police-offices for eight or ten months. In judging of this matter, it is material to inquire, whether the prisoner has abandoned his lawful calling, if he ever had any, and has had for some time no visible means of subsistence, except depredation: for, if he has done so, there seems no ground either in law or justice, on which the aggravation of character, if it has endured for this period, can be found not proven. Perhaps six months may be stated as the shortest period which has yet been held sufficient to stamp this character upon a prisoner.

The police-officers frequently say that the prisoner was once well known to them as a common thief, but that of late years they have lost sight of him; or that he works occasionally, and at other times relapses into his habits of stealing. In such cases, it is a proper jury question, whether or not the particular crime charged was committed under this aggravation ;— keeping in view, on the one hand, that, though a man may once have been an habitual thief, the stain may be washed out by subsequent and steady good conduct; and, on the other, that a man may be not the less a thief because he occasionally works in the intervals of his depredations.

If the charge of habite and repute be once established by concurring witnesses, it is no sufficient answer to it to prove, by the

1 Hume, i. 95.-2 Unreported.

testimony of one or more persons, who speak merely to particular dealings they may have had with him, or which may have fallen under their observation, for such a proof meets not the charge of habite and repute; and it is inconclusive in itself, because it does not follow that even a common thief will, in every instance, be dishonest.1 A signal instance of this occurred at Aberdeen, September 1830, in the case of Margaret Cathie and Ann Ross, who were proved by the most conclusive evidence to be habite and repute, and previously convicted; although several of their neighbours declared they always found them quite correct in their dealings, and knew nothing against their characters.2 This affords an illustration of the observation formerly made, that the police-officers, in large towns, are much better judges of the character of such persons even than those who have long dwelt in their neighbourhood; because their irregular habits have brought them under the observation of the one and not of the other.

22. The charge of habite and repute is peculiar to theft, and cannot be stated as an aggravation either of housebreaking with intent to steal, or robbery, or reset of theft.

The obvious expedience of getting quit of habitual thieves, by transportation, when detected in the analogous practices of housebreaking with intent to steal, robbery, and reset of theft, has led to frequent attempts to state the aggravation of habite and repute, as applicable to these charges; but all such attempts have been resisted by the Court. In the case of George Buckley, 12th July 1822, the Court found the aggravation of being habite and repute not relevant, in connexion with housebreaking with intent to steal. Again, in the case of Mary Bentley and Houston Cathie, 9th January 1822, it was found that it is not relevant to charge either the aggravation of being habite and repute a thief, or habite and repute a resetter, or previously convicted of theft, as connected with the charge of reset of theft. And, although it has not yet been in terminis decided, that the aggravation of habite and repute cannot be charged in connexion with the crime of robbery; yet as it has been thought that the crimes are so much distinct, that, on an

4

1 Burnett, 130.—2 Unreported.—3 Shaw's Cases, 73; Hume, i. 94.-1 Ihid.

indictment for robbery, it is not competent for the jury to return a verdict of guilty of theft,1 it may be anticipated that no such attempt would be successful, until a variation in the law in this particular has taken place.

3

But with regard to stouthrief, it deserves consideration whether there is any incompetency in charging this aggravation as applicable to that crime. In the case of Donaldson, Buchanan, and Forbes Duncan, Aberdeen, April 1823,2 it was stated by Lord Pitmilly, that there was no legal incompetency in stating the aggravation to a charge of stouthrief; and, in the case of James Graham and others, Dumfries, April 1824, it was strongly stated by Lord Justice-Clerk Boyle, that stouthrief was forcible theft. This also is the opinion of Baron Hume;* and, in the case of James Milne, Perth, September 1824, Lord Justice-Clerk Boyle laid it down, that there could be no objection to the aggravation of habite and repute being connected with a charge of stouthrief.5 In these circumstances, there seems no incompetency in point of law, as there assuredly is no impropriety in point of reason, in charging habite and repute as an aggravation of the violent theft implied in stouthrief, as well as of the clandestine abstraction recognised in the simple crime.

23. In considering the evidence against an accused party, it is not legal to lay any stress on the character of habite and repute, however clearly established, unless a specific act of theft has been once established.

No legal proposition is so frequently stated from the Bench, in criminal courts, as that proof of habite and repute cannot be legally taken into view as a make-weight of evidence against an accused party. The jury must be satisfied that the accused is guilty of an act of theft, before they approach the question whether he committed the crime under the aggravation of being an habitual thief. Thus far the law is clear; but it is to be wished that this rule was as well founded in reason and justice as it is in authority. Certainly it requires repeated admonitions from the highest legal quarter to convince a jury, that the same evidence is necessary to establish the guilt of an

1 Shaw's Cases, 30, Peter Wallace, May 21. 1811.-2 Unreported.-3 Unreported. Hume, i. 110.5 Unreported.

upright and virtuous man, who has never been known to commit a fault, as of a person who has for ten years lived by thieving; or that there is much equity in the rule which allows the prisoner, in doubtful cases, to cast the balance in his own favour, by adducing evidence of good character, and debars the prosecutor from rebutting that inference, by proof of the most systematic and long continued depravity, by one who has for years lived by the trade of thieving.

24. The punishment of an habitual thief, originally death, is now generally transportation; but in fixing the sentence, the Court proceed almost entirely on the character of the pannel, without regard to the amount in value of the special article abstracted.

In judging of the punishment to be inflicted on a person convicted of theft, aggravated by being habite and repute a thief, the Court most properly considers chiefly the character established against the pannel. Originally it was the uniform practice to follow such convictions with a sentence of death;1 but the more humane and enlightened practice of modern times has commuted this punishment, wherever the theft is unaccompanied with violence, to transportation. In awarding this sentence, however, the practice is rather to consider the length of time that the prisoner has borne the character of an habitual thief, than the specific value of the particular theft of which he has been convicted; and never to visit a person convicted under this character with a smaller punishment than transportation. In the case, accordingly, of William Wilson, July 14. 1827, the Court awarded fourteen years' transportation, where the article abstracted was only a cotton bag, not worth a penny, in consideration of a long previous character of a thief proved against him.2 Whatever the value of the article may have been, if the character of habite and repute for a course of years is established, transportation for fourteen years, or for life, is the usual punishment.3

25. Previous conviction forms a legal aggravation of theft, as well as of every other offence, provided the conviction be of the same crime with that now charged, that 1 Hume, i. 93.2 Unreported.-3 Syme's Cases, passim.