DECIDED IN THE SUPREME COURTS OF SCOTLAND, AND IN THE HOUSE OF LORDS ON APPEAL FROM SCOTLAND; BY [HOUSE OF LORDS, ETC.] GEO. DINGWALL FORDYCE, Esq., ADVOCATE, AND JAMES PATERSON, Esq., A.M., BARRISTER-AT-LAW, MIDDLE TEMPLE, LONDON; [COURT OF SESSION, JUSTICIARY COurt, etc.] G. RAMSAY OGILVY, AND W. H. THOMSON, ESQRS., ADVOCATES: BEING A CONTINUATION OF THE SCOTTISH JURIST. VOLUME XXVIII EDINBURGH: M. ANDERSON AND CO., LAW-PRINTERS, GEORGE STREET. MDCCCLVI. REPORTS OF CASES DECIDED IN THE COURT OF SESSION, &c. 3d November 1855. HIGH COURT OF JUSTICIARY. HER MAJESTY'S ADVOCATE, Pursuer, v. ROBERT PHILIP, Lewd, Libidinous, and Indecent Practices-Assault-Indict- The accused, who was lately Provost of the town of Leith, was indicted under the following libel: "Robert Philip, merchant, now or lately residing at or near Old Church Wharf, in or near Leith, you are indicted and accused, at the instance of James Moncreiff. Esquire, Her Majesty's Advocate for Her Majesty's interest: That albeit, by the laws of this and of every other well-governed realm, the using lewd, indecent, and libidinous practices and behaviour towards a girl under the age of puberty; As also, assault, especially when committed on a girl under or about the age of puberty, in a lewd, indecent, and libidinous manner, are crimes of an heinous nature, and severely punishable: Yet true it is and of verity, that you, the said Robert Philip, are guilty of the crime first above libelled, and of the crime last above libelled, aggravated as aforesaid, or of one or other of them, actor, or art and part: In so far as, (1.) on the 26th day of September 1855, or on one or other of the days of that month, or of August immediately preceding, or of October immediately following, in or near the office or premises then and now or lately occupied by you, which is situated at or near Old Church Wharf, and Old Church Street, and Ninian's or Saint Ninian's Lane or Street, all in Leith, or is situated at or near one or more of said places, you, the said Robert Philip, did, wickedly and feloniously, use lewd, indecent, and libidinous practices and behaviour towards Elizabeth M'Ken. zie, a girl then ten years of age, or thereby, daughter of, and then and now or lately residing with, Kenneth M Kenzie, a hammerman, in or near Coburg Lane, in or near Leith, by putting your hand under her clothes, and upon her naked person, and inserting your finger into her private parts, and by other such lewd, indecent, and libidinous practices and behaviour; and all this you did in presence of Janet Knox Smith, a girl then twelve years of age, or thereby, daughter of, and then and now or lately residing with, George Smith, a porter, in or near Coburg Lane aforesaid: Farther, (2.) Time and place above libelled, you, the said Robert Philip, did, wickedly and feloniously, attack and assault the said Janet Knox Smith, and did take hold of her, and place her between your legs, and forcibly and against her will, hold her in that position, and thrust your hand under her clothes, and put it SCOTTISH JURIST. manner, upon her naked person, and insert your finger into her private An objection was stated to the indictment, in so far as it charged the accused with committing lewd, &c., practices on a girl above puberty, the ground being that there was no principle or practice for it, and that a girl of that age could give consent, and was to be assumed as having consented. It was answered, that the essence of the crime consisted in the corruption of the mind of females before they had attained sufficient intelligence and discretion to defend themselves against such pollution, and that the mere fact of passing the line, in point of time, separating from pupillarity was of no consequence, provided the child was in mind and sense immature, or in body. Such was clearly the doctrine of Hume, vol. i., p. 310. The case of Galloway, 12th July 1888, showed this, for there the crime was charged as an aggravation "of assaulting young girls, and using lewd, &c., practices, especially on children under the age of puberty." In that case one of the girls was stated to be "then a girl of 12 years or thereby." The case of Gordon at Perth Circuit, October 1848, was also referred to, where three of the females were of the ages respectively of 13 and 15. The Court intimated, that as the point was an important one they would take time to consider, and accordingly proposed to adjourn the case. On this the Solicitor-General proposed to relieve the Court of difficulty by withdrawing the alternative charge, commencing with the words, "Or otherwise." The relevancy having then been sustained, the case went to trial, when the jury returned a verdict finding the accused guilty (by a majority) as libelled. In the course of his observations to the jury, the Lord Justice-Clerk, with the approbation of the other Judges, laid it down as clear law-(1.) that if the jury held it VOL. XXVIII.-No. I. |