Scottish Court of Session Decisions

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Cite as: [1835] (Justiciary Case) CA 13_1179a

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SCOTTISH_Shaw_Court_of_Session

Page: 1179↓

Lord Advocate

v.

Bell No. 369.

Justiciary Cases

June 22 1835

Lord Moncreiff, Lord Justice-Clerk, Lord Mackenzie.

The Lord Advocate. — Sol.-Gen. Cunninghame. James Bell, Pannel.— Moncreiff.

Subject_Proof—Murder.—

In a trial for murder, the deposition of the deceased Is evidence, although it do not bear that the party believed himself dying.

James Bell was tried on an indictment for murder. When the public prosecutor proposed to read the deposition of the deceased, it was objected to its competency, that the deposition bears that the witness hoped to recover, and it is not his dying deposition.

Lord Moncreiff.—I have some doubt as to the competency of this evidence. I believe it to be the practice in England, in such cases, to require that the witness shall believe himself dying.

Lord Justice-Clerk.—By the law of Scotland, this deposition is perfectly competent, although it do not bear that the party believed himself dying.

Lord Mackenzie.—I am of the same opinion. As the witness is dead, this is the best evidence that can be had.

The Court accordingly allowed the deposition to be read.

Solicitors: D. Cleghorn, W.S.—Agent for the Crown.

SJ 13 SJ 1179 1835

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