No 83. Alexander Sep. 19-20. 1867. when he committed the act, had sufficient mental Dingwall. capacity to know, and did know, that the act was contrary to the law, and punishable by the law, it would be their duty to convict him. This, his Lordship thought, Murder. was a safer and more accurate mode of putting the question before the jury, than to ask them to consider whether the accused knew right from wrong; for an assassin might believe it was morally right to kill his victim, and yet be responsible to the law, and punishable accordingly. As to intoxication, his Lordship said, the jury would judge whether the prisoner could be said to have been intoxicated. He had had a good deal of drink, no doubt, but he was habitually accustomed to it. Mr. Fyffe, who left him and deceased in the bedroom together about half-an-hour before the act, says he was then talking quite sensibly, and did not appear to be intoxicated. The same witness and his wife both say they found him immediately after the act cool and collected and in his usual state. But, however this might be, the plea of intoxication could not be regarded. The evidence of these witnesses was, however, important also with reference to the question of insanity. Mr. Fyffe asked him, 'What's ado ?' and his answer was, ' It's murder, Mr. Fyffe ;' and on Mr. Fyffe expressing incredulity, he said, 'Look at the bed;' and afterwards added, ' He was sorry he had missed his mark.' Whether that meant that he had missed the heart, or that he had missed his aim altogether, would be for the jury to consider. To Mrs. Fyffe's question, 'What's this 'you've done?' he answered, as he had done to her husband, 'It's murder, Mrs. Fyffe,' upon which she made the natural remark, as if speaking to a sane man, Certainly 'you've been a blackguard.' As to what had previously passed between the prisoner and deceased, the jury had the account given by the prisoner himself in his declarations, as well as by his deceased wife, and they would judge whether the rationality of his account was or was not confirmed by hers. The prisoner described a 6 No. 83, Sep. 19-20, 1867. quarrel between him and the deceased, in consequence Alexander of his having suspected her of hiding his money and his Dingwall. pint bottle of whisky. If that was what led to the act Aberdeen, which followed, the jury would judge whether it was not an instance of mere human passion leading, as often Murder. happens, to a lamentably incommensurate result. As to the deceased's dying declaration, it had obviously the touching characteristic, so often seen in such cases, of an injured wife's desire to palliate her husband's cruel con duct towards herself. She says no person could have been kinder to her than he was when all right; that it must just have been on the impulse of the moment that he did what he did; and that she believed he would, on coming to his judgment, be very grieved for what had happened. But she says also that, although he had had a little drink, he knew quite well what he was about; that he brought in with him a pint bottle of whisky; that he conversed with Mr. Fyffe quite in good humour; and that, after Mr. Fyffe left, he threw down the bed-clothes and stabbed her with a sharp instrument like a knife, which pierced her right arm and side. It would be difficult, his Lordship thought, to say that these statements were not confirmatory of the intermediate quarrel, although she did not mention it. It was remarkable, also, that the prisoner, although alleging a want of recollection of the act itself, gave a distinct account of what had happened up to the moment of the act, and a distinct and accurate account, as the evidence shewed, of all that happened immediately after it. After going over the rest of the evidence applicable to the question of the prisoner's sanity or insanity at the time of the act, his Lordship said that there had been a great deal of evidence led on both sides which had little to do with that question, but for this he considered the Crown to be mainly responsible, having shewn the example of travelling over the history of the prisoner's whole life, and so apparently placing the case upon a false issue. The anxiety of those conducting the defence might, Alexander Sep. 19-20, No. 83. however, entitle them to make what they could out of Dingwall. that line of pleading and proof; but even if they had Aberdeen, succeeded in proving that the prisoner had been at one 1867. time insane, that would not have availed them if he was Murder. sane enough to be responsible to the law at the time when he committed the act. Here his Lordship called attention to the conflicting opinions of the non-medical witnesses as to whether the prisoner had been at any time insane, and to the fact that of the eight intelligent medical gentlemen who, at different periods of the prisoner's life, had been his medical attendants, not one of them ever thought him insane. The single medical witness who countenanced the opposite idea was Dr. Howden, the medical superintendent of Montrose Asylum, who knew nothing of the prisoner except from having seen him recently in prison, and who gave, as grounds of his opinion, a variety of circumstances which had been told to him, of the accuracy of which, so far as they could be of any value, there had been no evidence whatever, and some of which had been proved to be mistakes; for instance, that the prisoner had placed himself voluntarily in a Lunatic Asylum, whereas he had merely placed himself in a boarding-house called a 'Retreat,' where he went out and in when he chose, and could command what drink he pleased. Dr. Howden's opinion went a startling length, for he considered the prisoner insane now, although the Court and the jury, with the acquiescence of the ablest counsel at the bar, were engaged in trying him as a sane man. The question of sanity or insanity, as a defence against responsibility to the criminal law, was not, however, in a case like this, a medical question, but a question for the jury on the whole evidence, medical and non-medical, the grounds for the opinions given being equally for the consideration of the jury with the opinions themselves. This was not like a question of medical treatment-whether a patient should be treated in or out of a lunatic asylum. Neither was it a question of insanity pleaded in bar of trial. It Alexander Murder. was the case of a prisoner admittedly sane enough to be tried, and it was for the common sense of a jury to Dingwall. determine whether, at the time he committed the act, Aberdeen, Sep. 19-20, he had capacity enough to know that the act was con- 1867. trary to the law and punishable by the law, and according to their view on that point, they would either find that when he committed the act he was in a state of insanity, or find him guilty of the offence proved against him. 4th, There remained the question whether the offence was anything short of murder? And here his Lordship said that it was very difficult for the law to recognize it as anything else. On the other hand, however, he could not say that it was beyond the province of the jury to find a verdict of culpable homicide if they thought that was the nature of the offence. The chief circumstances for their consideration with this view were, 1st, The unpremeditated and sudden nature of the attack; 2d, The prisoner's habitual kindness to his wife, of which there could be no doubt, when drink did not interfere; 3d, There was only one stab or blow; this, while not perhaps like what an insane man would have done, was favourable for the prisoner in other respects; 4th, The prisoner appeared not only to have been peculiar in his mental constitution, but to have had his mind weakened by successive attacks of disease. It seemed highly probable that he had had a stroke of the sun in India, and that his subsequent fits were of an epileptic nature. There could be no doubt that he had had repeated attacks of delirium tremens, and if weakness of mind could be an element in any case in the question between murder and culpable homicide, it seemed difficult to exclude that element here. His Lordship had anxiously considered that question, and had come to the conclusion that the element was not inadmissible. Culpable homicide in our law and practice, included what, in some countries, was called murder with extenuating circumstances. Sometimes the crime of culpable homi Alexander Sep. 19-20, No. 83. cide approached the very verge of murder; and someDingwall. times it was a very minor offence. The state of mind Aberdeen, of a prisoner might, his Lordship thought, be an exten1867, uating circumstance, although not such as to warrant Murder. an acquittal on the ground of insanity; and he could not therefore exclude it from the consideration of the jury here, along with the whole other circumstances, in making up their minds whether, if responsible to the law at all, the prisoner was to be held guilty of murder or of culpable homicide. The jury, after an absence of half-an-hour, unanimously found the panel guilty of culpable homicide, and he received sentence of 10 years' penal servitude. ABERDEEN. Judges-LORDS DEAS AND NEAVES. HER MAJESTY'S ADVOCATE-Lee A.D.-Neaves No. 84. Alexander Robertson AGAINST ALEXANDER, PETER, AND JOHN ROBERTSON-Mackay. THEFT-RELEVANCY-INDICTMENT-In a trial for theft and sheepstealing, an objection to the relevancy of one of the charges, in respect of the latitude and ambiguity of the modus, sustained. Question, Whether wickedly and feloniously pasturing sheep on the field of another person constitutes theft? THE panels were charged with the crime of theft, parand others, ticularly of stealing sheep, the property of John Miller, Aberdeen. Esq. of Drumlithie, in the shire of Kincardine, in Sept. 20, whose service Alexander Robertson had been employed The first and second articles of the libel were charges of sheepstealing, and the third was as follows: 1867. Theft, as gamekeeper and overseer. LIKEAS (3) you, the said Alexander Robertson, Peter Robertson, and John Robertson, junior, did all and each or one or more of you, |