Whether a socius criminis can be admitted as a witness to prove forgery?
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Sir Thomas Nicolson of Tillicoutrie gives in a petition against Sir Patrick Nisbet of Dean, complaining he had raised an inhibition against him on a patched-up debt, and had prevailed with one Mr. William Robertson, an old messenger in Edinburgh, to give him an execution, as if it had been published at the market-crosses of Stirling and Clackmannan, within which two shires Tillicoutrie's lands lie, and got it signed by one Blair and Wat, two of the Privy Council posts as witnesses; whereas the execution was altogether false, and none of them had been one foot out of the Town of Edinburgh, and yet Sir Patrick had given in this execution to George Robertson, and got it registrated. This being a recent forgery, the Lords sent for the messenger, and, upon examination, he acknowledged, that at Sir Patrick Nisbet's desire, and promise to warrant him, he signed the execution as done at these market-crosses, though it was not so, and that he got only three 14 shilling pieces; and, after some further trial, they sent the messenger and one of the witnesses (who was not so ingenuous) to prison, and delayed till Tuesday the consideration, if they might summarily proceed against Sir Patrick, by citing him to answer on this complaint, there being no summons of improbation yet raised, and who will allege ignorance in the whole affair, and that the messenger's knavery cannot be imputed to him; and that he received the execution from him as a truedeed, and he was not bound to think otherwise.
1696. December 17.
The complaint,, mentioned 21st November 1696, at Tillicoutrie's instance, anent the false execution of the inhibition, and which Sir Patrick consented to have discussed summarily, per modum simplicis quærelæ, dispensing with the formalities of a process, was debated. The King's Advocate insisting in his indictment and libel against Sir Patrick, as actor, art and part, it was alleged he behoved to condescend on the particular qualifications of his accession, that the relevancy of the same might be determined. The Advocate opponed the 152d act of Parliament 1592, whereby it was sufficient for him to libel, art and part, which is ordained as relevant to sustain his libel; and, in trials of falsehood before the Lords, they do not premit the determination of the relevancy to the probation, but allow the improver to give in his articles of improbation, and the user his articles of approbation and instruction; and after expiscation by witnesses on both sides they determine the whole, as was followed in the famous trial between Sir Robert Crichton and Richard Murray of Brughton, and in many other cases. The Lords found the King's Advocate was not bound to condescend more particularly in respect of the act of Parliament sustaining art and part. Then it was alleged, that the principal delinquents behoved to be tried, before they could insist against him as accessory, it being evident that the messenger was principally guilty. Answered, They were all equally criminal, and the degrees of the accession would arise from the probation; 2do, That of convicting the principals before the accessories held only in theft and resetters of theft; it being reasonable that the corpus delicti be first proved against the principal thief before the resetters can be convicted, as appears from the old Statuta Roberti. The Lords found no need of discussing the principals first in the case; 3tio, Alleged, There was no false writ here, because the execution was cancelled, and both the messenger's and witnesses names were obliterated and blotted out, and so the writ was indeed null and nemini nocivum, but was not false. Answered, the cancelling a false deed after it comes to be discovered, does not liberate a pæna falsi, and here the corpus delicti is plain and evident; for though it was a true deed as to its subscription, it was directly false as to the matter therein asserted, that they had published and executed that inhibition at the market crosses of Clackmanan and Stirling. The Lords repelled this third defence in respect of the answer. Then it was objected against the messenger and instrumentary witnesses to the execution, that they could not be adduced as witnesses against Sir Patrick Nisbet, because they were both conscii et socii criminis, and had also confessed their own guilt and villainy, and were inhabile witnesses in law, being deprived by the Lyon, and so infamous both infamia juris et facti; and though such were receivable in perduellion and lese-majesty ob atrocitatem criminis yet regulariter they were rejected. Answered, In such occult and latent crimes, either they must remain for ever undiscovered, and so unpunished, or else the socii must be admitted; for to such works of darkness none are admitted but partners, who are put upon the secret; and in the trial of the robbery of Sir John Clerk of Pennycuick's house, some of the robbers were received as witnesses against the rest; and so in the trial of false coin against Lag: But to bring it home to the case in hand, 26th January 1670, in the Lady Towie's case against Captain Barclay, No. 69. p. 16669. Steill, Ferguson, and Ross, were admitted to prove the forgery, though this very objection was made against them, that confessi habentur pro convictis, and being infamous they were not to be credited; for to extenuate their own guilt they might load innocent men, and say they did it by their instigation and order. Replied, This was only in order to discover the falsehood of the writ, but not to punish Barclay the principal forger. The Lords demurred on this objection, considering the witnesses had acknowledged their own guilt, and so, if remitted to the Lords of Justiciary, could not but be condemned, and being under the terror, impression, and fear of death, were not habile witnesses, unless the same were removed by a remission, as was practised in Salton's forfeiture. Upon which scruple of the Lords, the King's Advocate superseded to insist for some time. Mascardus thinks, that socii criminis are habile in criminibus occultis ubi est penuria testium. As to the degrees of accession in falsehood, and that where the pæna is infra mortem, the Lords inflict it themselves, without remitting to the criminal court, see 14th July 1638, Dunbar, No. 132. p. 7416.
