Scottish High Court of Justiciary Decisons

At advising on 18th July 1930,—

LORD JUSTICE-GENERAL (Clyde).—The question in the present case belongs to the department of circumstantial evidence. This consideration is vital to the whole matter; and I do not think the real question in the case can be understood or appreciated otherwise. In a case of purely circumstantial evidence there may be no direct proof at all of the factum probandum; yet each circumstance is held to be sufficiently supported by the evidence of a single credible witness. The explanation is that "the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponding to the same facts"—Hume on Crimes, vol. ii., p. 384. The factum probandum starts as a simple hypothesis; but it becomes a factum probatum as soon as it is seen to coincide with the conclusion to which the several Circumstances (when collated) necessarily Lead according to human knowledge and experience.

In the present case there is direct evidence in support of the factum probandum as regards each charge which the jury found proved. But the evidence is that of a single credible witness only to each charge. Corroboration is sought from the circumstance that the charges thus supported are numerous and of the same kind, and the question is whether the case is one in which resort may legitimately be had to corroboration derived from this circumstance.

It is beyond doubt, in the law of Scotland, that corroboration may be found in this way, provided that the similar charges are sufficiently connected with, or related to, each other—Hume on Crimes, vol. ii., p. 384; Alison's Criminal Law, vol. ii., p. 552. But what is the test of sufficiency? The test I think is whether the evidence of the single witnesses as a whole—although each of them speaks to a different charge—leads by necessary inference to the establishment of some circumstances or state of fact underlying and connecting the several charges, which if it had been independently established, would have afforded corroboration of the evidence given by the single witnesses in support of the separate charges. If such a circumstances or state of fact was actually established by independent evidence, it would not occur to anyone to doubt that it might be properly used to corroborate the evidence of each single witness. The case is the same, when such a circumstance is established by an inference necessarily arising on the evidence of the single witnesses, as a whole. The only difference is that the drawing of such an inference is apt to be a much more difficult and delicate affair than the consideration of independent evidence. No merely superficial connexion in time, character, and circumstance between the repeated acts—important as these factors are—will satisfy the test I have endeavoured to formulate. Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character, or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind—but is related to—the separate acts. The existence of such an underlying unity, comprehending and governing the separate acts, provides the necessary connecting link between them, and becomes a circumstance in which corroboration of the evidence of the single witnesses in support of the separate acts may be found—whether the existence of such underlying unity is established by independent evidence, or by necessary inference from the evidence of the single witnesses themselves, regarded as a whole. It is just here, however, that the pinch comes, in such a case as the present. The Lord Advocate spoke as if it would be enough to show from the evidence of the single witnesses that the separate acts had occurred in what he called "a course of criminal conduct." Risk of confusion lurks behind a phrase of that kind; for it might correctly enough be applied to the everyday class of case in which a criminal recurs from time to time to the commission of the same kind of offence in similar circumstances. It might be justly said, in relation to the evidence in support of any indictment in which a number of such similar crimes committed over a period of (say) three years are charged together, that the accused had been following "a course of criminal conduct." If any of the crimes in the series had formed the subject of a former prosecution or prosecutions, and convictions had been obtained, neither the commission of such former crimes nor the previous convictions could afford any material for corroborating the evidence of a single witness in support of the last member of the series. And therefore—especially in view of the growing practice of accumulating charges in one indictment—it is of the utmost importance to the interests of justice that the "course of criminal conduct" must be shown to be one which not only consists of a series of offences, the same in kind, committed under similar circumstances, or in a common locus—these are after all no more than external resemblances—but which owes its source and development to some underlying circumstance or state of fact such as I have endeavoured, though necessarily in very general terms, to define.

In some cases, the question presents little or no difficulty. In the passages in Hume and Alison above referred to, two instances are given:—(1) The subornation of a number of witnesses at a criminal trial, (2) the commission of the matrimonial offence of adultery.

In the first of these, it is assumed that only one credible witness speaks to each act of subornation; but, as soon as it becomes a necessary inference—from the fact that one witness after another depones to similar experiences at the hands of the accused—that each act spoken to is only a part, or a stage, or an incident of the execution of a larger design to pervert justice at the trial by means of perjured evidence, the door is opened for the application of the circumstantial rule, just as it would have been by independent evidence of such a design. This instance aptly illustrates one of the kinds or classes of circumstance by which the several acts must be connected or related before the evidence in support of one of them can be regarded as deriving corroboration from the evidence in support of the others.

In the second instance (that of adultery), the problem is in one respect easier, for the reason that, except in the rarest of cases, proof of adultery is never anything but circumstantial. If the evidence given by several credible witnesses, each of whom is speaking to facts relevant to infer only one of several acts libelled in the summons, necessarily leads to the inference that the accused spouse was, during the time covered by those acts, abandoning himself or herself to a mode of life inconsistent with the observance of matrimonial duty, it may be possible for the Court to find corroboration of the evidence of each witness in the evidence of the others, in just the same way as it might have done if there had been independent evidence of loose habits of life on the part of the errant spouse at the relevant dates. It will be observed, however, that, in this instance, the length of time elapsing between one alleged act and the others may be a factor of great importance.

Another instance which has frequently occurred in recent years is provided by the case of lewdness practised on children by adults. It is & now a settled point in the law of evidence in this country that if, in cases of this sort, one child after another speaks to separate acts committed on him or her, material for the corroboration of each child's statement may be found in the statements of the others. Conduct of this sort differs from that normally produced by human lust or passion; and, if it is a necessary inference from the repeated acts spoken to individually by a number of children that the accused has, during the period covered by the separate acts spoken to, made a practice of getting himself into privacy with them for no purpose that can reasonably be suggested except a sinister one, it becomes possible to find circumstantial corroboration of each child's statement, in the same way as before—that is to say, in the same way as if there had been independent evidence to that effect. The peculiar and perverted character of the accused's conduct is an important element in this class of case; although no doubt the length of time elapsing between the separate acts spoken to may—especially if considerable—be of great importance against the corroborative effect of the separate statements. It is a class of case in which the utmost caution has to be used, and in this connexion the charge delivered by the presiding judge in the case of H. M. Advocate v. M'Donald may be referred to as one which it might be difficult to improve on.

The present appeal concerns (first) a group of seven simple assaults on seven persons extending over seven years, and (second) another group of nine indecent assaults on five persons extending over nearly three years. The victims were shopwomen in the appellant's employment, and all the assaults took place in his business premises. In only one of the charges of simple assault, and in only two of the charges of indecent assault, was there corroboration of the ordinary kind of the victim's evidence. The appellant does not challenge his conviction as regards these. But in all the others, the only direct evidence consists in the evidence of the individual victims, who were in each instance credible witnesses, and the question in the case arises with regard to these. The accumulation of so many charges, covering such a wide latitude of time, in one indictment is an unfortunate circumstance which makes the application of the principles discussed in the earlier part of this opinion a matter of considerable difficulty.

The presiding judge grouped the cases as in the preceding paragraph, and directed the jury that they could only find corroboration (if at all), for any of the single witnesses' evidence, in the evidence of others who spoke to an offence in the same group. This seems a technical way of looking at the matter; but it was not challenged, and I think it was right. The law has never countenanced resort to this kind of circumstantial corroboration except in relation to crimes of the same kind; and I think the reason why identity of kind should be a sine qua non of the establishment of any recognisable connexion or relation between the separate acts is to be found in the necessity of giving a wide berth to any possible risk of allowing a jury to be tempted into the course of "giving a dog a bad name and hanging him." The fact that a person is naturally susceptible to a particular kind of temptation when it presents itself in similar circumstances, and in consequence commits a series of

more or less cognate offences, is in itself irrelevant to the question whether he is proved guilty of a similar offence for which he is at the moment standing his trial—however much the man in the street might be inclined to be against him on that account.

The indictment was prefaced by a remarkable exordium, evidently intended to suggest that the appellant (during the seven years covered by the indictment) used his business, and the contact into which it brought him with large numbers of female employees between eighteen and forty-eight years of age, for the purpose of seducing or otherwise debauching them. If this had been established by independent evidence, or if it had formed a necessary inference from the evidence of the single witnesses taken as a whole, I think the door would have been opened to circumstantial corroboration. But the prosecution at the hearing of the appeal did not maintain, that the suggestion was supported by evidence, and disclaimed any imputation of so serious a kind. We are therefore left with this, that over a period of years (seven in the one class of case and three in the other) the appellant is said by a number of single credible witnesses, all of whom were in his employment, to have assaulted them (simply in the one class of case and indecently in the other) in his business premises—these assaults (to whichever of the two classes they belonged) being in the nature of familiarities more or less gross, which, however, were never pressed against resistance, and were never (except in a few instances) twice repeated upon the same employee. Is there, in this, enough to take the case (in either class of assault) out of the category of repeated acts of the same offence, and to place it in the category of a chain of connected or related acts?

As regards the group of acts which the jury found to constitute simple assaults, my opinion is that the necessary link which must be proved to connect them—before the evidence of the single witnesses to the separate acts can be regarded as providing material for mutual corroboration—is a wanting. The acts complained of consisted in the bestowal of uninvited kisses or ticklings and the like on seven out of some hundreds of female employees who were in the appellant's service during the seven years covered by the indictment. That these acts, if committed without acquiescence or consent, were insults to the women concerned is plain; and they may have amounted to assaults in law. But I am by no means satisfied that in all the cases the facts spoken to by the single witnesses afforded support for a charge of assault. In the case (for example) first charged in the indictment I do not think there was any evidence which could be said to support a charge of assault at all. And, in any view, the whole seven charges, in respect of the seven employees, related to isolated acts scattered over a period of no less than seven years. My opinion, in these circumstances, is that it cannot be said to be a necessary inference from the evidence of the single witnesses that the separate acts, grouped under the class of simple assault, were stages or incidents in a criminal design or campaign. The time element, as well as the silly character of the offences themselves, seems to me to be conclusive against any such inference as that. That all the acts flowed from a certain erotic propensity on the part of the appellant may be regarded as clear; but that is saying no more than that they were all of the same kind—like a series of otherwise unconnected thefts by a servant who is prone to thieving from his master's wardrobe. The presiding judge however directed the jury that they might find corroboration of the evidence of any one of the single witnesses in the evidence of any of the others. Having regard to the isolated and scattered character of the separate acts, over a period so extended as seven years, and to the fact that, in the case of at least one of the separate acts, the single witness's evidence did not support a charge of assault at all, I do not think the group of convictions for simple assault can stand.

As regards the convictions of indecent assault (which, for the reason above explained, must be regarded by themselves) the case presents greater difficulty. The number of separate acts found proved amounts to nine, and the acts were committed on five of the appellant's shopwomen within a period not exceeding three years. Were the jury entitled to take it as a necessary inference from these repeated acts that the appellant was, during the period covered by them, pursuing a campaign of lustful indulgence at the expense of the self-respect—if not of the chastity—of his female employees If they were, the door was, in my opinion, opened to the application of the rule of circumstantial corroboration. I attach a different significance to acts savouring of indecency, which definitely point to criminal design, from that applicable to acts of mere vulgar familiarity. But I am not sure that, if I had been trying the appellant's case without a jury, I should have felt myself warranted, in strict justice to the accused, in inferring, from the evidence of the single witnesses to indecent assault, that the nine separate acts (occurring within a period not exceeding three years) were truly connected or related as parts or incidents of a persistent campaign of lustful indulgence pursued by the appellant at the expense of his female employees. On the other hand, I am bound to take it that the jury did regard that as a necessary inference from the evidence of the single witnesses; and I cannot say that this conclusion was either unreasonable or unsupported by evidence. But what has caused me more difficulty than anything else in disposing of this part of this case is the abandonment by the prosecution of the scheme tabled in the exordium which was prefaced to the indictment. I confess that, at the conclusion of the debate, I thought it might be unfair to the appellant to reinstate the abandoned scheme to any extent—even to the extent to which the jury must be regarded as having adopted it. But, on further consideration, I have come to be of opinion that this would be to take too narrow a view of the matter. If that is right, then the group of convictions for indecent assault must stand.

In any event, I think the sentence of four year's penal servitude was grossly excessive; and I am prepared to reduce it to a term of twelve months' imprisonment.

LORD JUSTICE-CLERK (Alness).—The appellant is charged in the indictment under which he was tried with no fewer than twenty-one offences against women in his employment. Some hard things—probably not too hard—were said about the indictment, both in the judge's charge to the jury, and also in the course of the argument before this Court. It was pointed out, for example, that the indictment proceeded upon a preamble which sets out a criminal scheme devised by the appellant, of which not only is there not a shred of proof, but of which there was no attempt at proof. It was also pointed out that the latitude of time covered by the indictment, viz., seven years, is unusual, if not indeed unprecedented. It was also argued for the appellant, and demonstrated, that, at the best for the Crown, the incidents held by the jury to be proved under the indictment are—to say the least of it—but a pale reflection of the incidents as they were libelled. It was, in these circumstances, reassuring to learn, from the lips of the Lord Advocate, that, at any rate so far as its preamble its concerned, this indictment will not be regarded in the Crown Office as a precedent to be followed in other cases.

However all that may be, it is necessary to come to closer quarters both with the indictment and with its sequel. The libel relates, as was truly pointed out by the learned judge in his charge to the jury, to three distinct categories of crime, viz.:—(1) assault, (2) indecent assault, and (3) attempt to ravish. The last category, as libelled, need not detain us, for the jury negatived the 19th and 20th charges which alone relate to that matter, and found the appellant under these counts guilty of indecent, assault only. They also found the appellant not guilty of the charge of indecent assault contained in the 11th article of the indictment. The jury, however, found the appellant guilty on seven counts of assault, viz.:—1, 2, 9, 10, 12, 15, and 17, and on nine counts of indecent assault, viz.:—5, 7, 8, 14, 16, 18, 19, 20, and 21. This is manifestly a discriminating verdict. Mr Wark, for the appellant, admitted that in three cases, viz.:—No. 12, being a conviction of assault, and Nos. 8 and 21, being convictions of indecent assault, the evidence given by women said to have been assaulted was competently and sufficiently corroborated, and that, as the jury had accepted the evidence relating to these charges, he could not attack the verdict in so far as it related to them. That accordingly leaves for consideration six offences of assault, and seven offences of indecent assault, which the jury held sufficiently proved, and which Mr Wark attacked as being insufficiently proved.

The grounds on which Mr Wark's appeal is based are that (1) as get out in his appeal, as framed, "the evidence for the Crown upon which the accused was convicted was not corroborated as required by law," and (2) as set out in his appeal, as amended—the Lord Advocate not objecting to the amendment—there was misdirection by the learned judge in his charge.

The two sets of cases—assault and indecent assault—as I have already indicated, and as the learned judge very properly told the jury, require to be separately considered, and I now address myself to that task. I first rehearse for the sake of greater accuracy, and in order to record their approximate dates, the incidents which remain for consideration.

The remanent cases of assault which fall to be considered are (1) Rodger in 1923, (2) Clark in 1927, (3) Woods in 1928, (4) Howie in 1928, (5) Penman in 1929, and (6) Torrance in 1930.

The cases of indecent assault which fall to be considered are (1) Blamires in 1927, (2) Brown in 1927–1928, (3) Little in 1929, (4) Watt in 1929, and (5) Speed on three occasions in 1930.

Now, were the jury, or were they not, entitled to hold these cases proved? That raises a pure question of law. It is admitted, as I understand, that, in each of these cases, the only direct evidence tendered by Lord Justice the Crown was that given by the woman who deponed that she had been assaulted. Unless that evidence is competently corroborated, it is manifest that the convictions relating to these charges cannot stand. Now, it was not suggested that there was any corroboration to be derived from facts and circumstances. But the contention for the Crown was that, in the cases of assault and in the cases of indecent assault to which I have last referred, competent and sufficient corroboration of the direct evidence given is to be found, in the first case, in the evidence relating to the other assaults held by the jury to be proved, and, in the second case, in the evidence relating to the other indecent assaults held by the jury to be proved.

How then stands the law of the matter?

In limine let me premise that we are here dealing with a type of crime which is—as Burnett puts it (p. 513):—

"Of such a sort, that the attempt will generally be made in the presence only of the person intended to be wrought upon, and with the greatest privacy and caution."

In short, such a crime as that with which we are concerned is not committed coram publico, and penuria testium is therefore to be anticipated.

I first refer to Hume's Commentaries, vol. ii., p. 385. After laying it down that the evidence of single witnesses has been held sufficient even to establish separate acts of the same crime, and instancing the case of Souter v. Hog, the learned author proceeds—"Certainly, however, no inference is to be made from such a case as that of Hog, to one where the several acts, though of the same crime, have no sort of relation to or connexion with each other; as, for instance, in the case of successive acts of uttering forged notes to different persons, and at different times and places."

To the same effect is Alison's Criminal Law of Scotland, vol. ii., p. 552. The learned author writes thus:

"In the third place, where a number of instances of the same crime are charged under one general denomination, and connected together, and forming part of one and the same criminal conduct, as subornation, adultery, &c., each separate act may be competently established by the evidence of a single witness, as each act is in truth nothing but the link by which the guilt upon the whole is established. But this does not apply to separate crimes, which have no connexion with each other, but are merely repeated acts of the same offence, as acts of theft, robbery, uttering forged notes, or the like, as to which the same evidence is justly required in each charge, as if they stood in so many separate indictments."

Again, in Tait's Law of Evidence, (3rd ed.) p. 438, the same doctrine is thus expounded:

"Single witnesses are also admitted to prove different reiterated acts of one specific crime, e.g., the subornation of a witness by various acts of bribery; different acts of adultery committed with the same person; different acts of the same slander; and also to prove possession, or the exercise of other lawful right, consisting in a train of acts; but not to prove different acts, though of the same crime, having no sort of relation to, or connexion with, each other, e.g., successive acts of theft, or of uttering forged notes on different occasions."

Yet again, in Dickson on Evidence, the same view is expressed (at Clerk. pars. 1809 and 1810 of Grierson's ed.):—

"In criminal cases, also where several acts of the same crime are charged, the proof of them will be sufficient in point of law, although there should only be one witness to each act, as for example, in a charge of several acts of incest with the same person, or a charge of suborning several persons as witnesses in the same trial, or of several assaults upon the same individual about the same time. In such cases the different acts are repetitions of the same offence, springing from the same impulses or motives, and unquestionably the proof of one of them strengthens the probability that another took place. In like manner, in a charge of treason by two or more overt acts of the same description, proof by one witness to each act is sufficient. …

The ordinary rule, however, applies where the acts charged are only independent instances of the same kind of crime or offence, as for example, several charges of theft or robbery, or uttering forged notes to several persons at different times and places. Yet even in this class of cases different offences may be so related that proof of one of them will supplement defective evidence in another; as, for example, where several acts of housebreaking are committed on the same night about the same place, by cutting a pane of glass with a diamond, going down a chimney, or in some other peculiar way. The unity of character in such cases makes it highly probable that they were all parts of one thieving expedition, and it is thought that the Court would not require the prosecutor to with-draw one of the charges, because the direct evidence of one witness to it was not corroborated by circumstances connected with that charge individually."

The principle to be extracted from these passages may, I think, be expressed both negatively and positively. Negatively it may be expressed thus:—that where different acts of the same crime have no relation or connexion with each other, it is not competent to eke out and corroborate the evidence of one witness to one act by the evidence of another witness to another act. Positively the rule may be expressed thus:—that where, on the other hand, the crimes are related or connected with one another, where they form part of the same criminal conduct, the corroborative evidence tendered is competent. In that case, as Dickson says (at par. 1810):—

"The unity of character in such cases makes it highly probable that they were all parts of one thieving expedition."

The statement of the distinction is easy, but its application is manifestly difficult. In every case, as it seems to me, the Court must put to itself the question—Is there some sort of nexuswhich binds the alleged crimes together? Or, on the other hand, are they independent and unrelated. These are questions, I apprehend, which fall to be asked and answered in this case.

Before, however, seeking to find an answer to them, and before proceeding to apply the principles laid down by the Institutional writers to the case in hand, it is proper to inquire whether any light on these principles is shed by the decided cases. I put on one side English decisions. The law of England, as I understand it, is quite different from ours with regard to the value and sufficiency of the testimony of a single witness in a criminal case, and I therefore regard what has been said from the English bench on the subject as affording no safe guidance in this appeal. A number of Scottish cases—both civil and criminal—were, however, cited to us, to which a passing reference falls to be made. The former class no doubt cannot be taken, so to speak, at the foot of the letter. They require to be handled with care. They are analogies rather than authorities. As for the case of Whyte v. Whyte, on which the Lord Advocate strongly founded, the views there expressed were, as interpreted by high authority, limited to matrimonial causes. (Cf. Lord President Dunedin (at p. 234) in H. v. P., (1905) 8 F. 232, and Lord President Robertson (at p. 404) in A v. B, (1985) 22 R. 402.) None of the civil cases cited by Mr Wark—and I have examined all of them carefully—seems to me to be of the slightest assistance in the discharge of our task. As regards the criminal cases cited, most of them also seem to me to be beside the mark. The only case which directly bears upon the problem before us is the case of H. M. Advocate v. M'Donald . With the terms of Lord Blackburn's charge to the jury in that case I desire in the fullest manner to associate myself. Similar charges, in cases of assaults upon children, must have been repeatedly delivered, whether they are reported or not, at the Criminal Court in Glasgow. I have frequently charged juries to the same effect, for it has fallen to my lot to try many of these cases. I venture to think that it would be nothing short of calamitous were the law other than as laid down by Lord Blackburn. I quite recognise that there are differences between a case of assault on young children and a case of assault on adult women. But, after all, the resemblances seem to me much more striking than the differences:. And I cannot see why the same principle, after discounting all distinctions, should not apply, unimpaired in essentials, to the case under review. At this point I venture to import from the civil law an observation made by Lord Mackenzie (at p. 578) in the case of M'Vicar, where his Lordship said, dealing with a case of slander:—

"It cannot possibly be the law that the same slander might be uttered to a hundred different people and, provided there was only one witness to each, the slander could not be proved."

I have no difficulty in holding that it is in this case impossible to affirm that the crimes of which the appellant was convicted have no sort of relation to, or connexion with, each other. They were all sexual in their character; they were all committed on employees of the appellant; they were all committed when the parties were solus cum sola;they were all committed on the appellant's premises (a fact which, be it observed, in itself enormously restricts the area of search for the cuplrit); the modus operandi in each case was the same or similar; the perpetrator was in all cases the same, and they were exceptionally numerous. They afford, as

Alison puts it, "a number of instances of the same crime … forming part of one and the same criminal conduct."

Considerations such as I have mentioned will no doubt strike different minds in a different manner. For myself, I do not hesitate to affirm that a case possessing the characteristics which I have catalogued stands in a class by itself. And if I am asked why, I should be disposed to answer—because it possesses special domestic characteristics which bear the hallmark of the appellant. In other words, the appellant embarked upon an amorous adventure, and the crimes proved are but recurring manifestations of his lascivious disposition "springing from the same impulses or motives." If this be not a case in which the incidents are closely related to one another, then I am unable to figure such a case. I do not think that it is too much to say that, while the Crown failed to establish the anterior scheme which formed the preamble of the indictment, nevertheless, when retrospectively regarded, the incidents proved disclose a systematic course of libidinous conduct on the part of the appellant—a scheme or design or plan on his part to gratify his lewd impulses, at the expense of his unfortunate employees, whenever and wherever he thought that a safe opportunity of doing so presented itself. Juncta juvant.

It may be worth while inquiring—What are the dangers which are regarded in the ordinary case as sufficient to exclude the argument that the evidence of one witness to an incident may corroborate the evidence of another witness to another similar incident? The dangers are surely these, (a) that the alleged incident may never have occurred, or (b) that, if it did, some one other than the accused may be responsible for it. I doubt if the first danger exists in this case. I doubt whether, although the precise nature of the acts alleged may in some cases be in controversy, anyone would suggest that nothing at all happened as between the appellant and one of his employees on any of the occasions libelled. And I feel certain that no one would have the hardihood to suggest in this case that there may have been another author of any of the crimes than the accused. And, if not, why not? Surely, just because of the characteristic course of the appellant's conduct.

These observations, which are general in their character, apply equally to the group of assaults, and to the group of indecent assaults.

But, even assuming the law to be as I have stated it, Mr Wark presented a further argument, which sounded in time. He sought to limit the doctrine which I have stated to incidents closely connected with one another in point of time. Indeed, he went so far as to suggest that, in order to admit of the application of the doctrine which I have explained, the charges must be separated only by hours from one another. I decline absolutely to lay down a time limit of competency. For such a proposal I can find no warrant. The question of time must, I think, always be one of circumstances.

Turning then to the circumstances of this case, I have no difficulty with regard to the indecent assaults. The form a cluster round the

years 1928, 1929, and 1930, and they number seven. To these fall, more-over, to be added two more in the years 1928 and 1930, viz., Hamilton and Morris, which Mr Wark, as I have already said, admitted to be sufficiently corroborated. I am not prepared to hold that, when such a course of criminal conduct is disclosed, extending over, it may be, a period of three years, the Court is entitled to rule out as incompetent the corroboration afforded by the earlier to the later incidents. The more remote the incidents are, no doubt, the fainter their repercussion on the later incidents. But that goes, in my judgment, to value rather than to competency. I know of no case, and no passage from an Institutional writer, which forbids me to reach this result.

I must own that I have more difficulty with regard to the cases of assault. That difficulty is created by the fact that one of these is as stale as 1923, and by the fact that the learned judge in his charge drew no distinction between the corroborative value of that incident and the corroborative value of the later incidents. Again, however, I think that, in the peculiar circumstances of the case, the objection goes rather to the value than to the competency of the evidence.

I may note, quantum valeat, that, in a civil case of slander, an interval of years between the slanders libelled was not regarded as too long to yield the necessary corroboration in law. I refer to the case of Cullen, which was noted, on this question of time, by Lord Strathclyde in M'Vicar. The truth is that the value of an incident remote in time may be small, or even nil, in the opinion of the jury. One must have a sense of perspective in these matters; and I cannot for a moment think that, merely because the jury were allowed by the judge to consider, inter alia, the value, if any, of an incident in 1923, therefore their verdict, in so far as it relates to all the assaults held by them to be proved, is thereby vitiated.

My view of the case as a whole may be summed up in the—if I may say so—wise words of Lord M'Laren in Gallagher:

"Unless a decision to the contrary could be produced, I am unable to hold that the law will reject as inadmissible evidence on which every one would act in the ordinary affairs of life, and which is calculated to produce conviction to any fair minded person who hears it."

Of that quality I regard the evidence in this case; and no "decision to the contrary" has been produced. I am satisfied, as a matter of good law and good sense, that the appellant was properly convicted of the charges which have been made matter of challenge by his counsel.

Let me add that I treat this as a special case, the circumstances in which are not, I think—indeed I hope—likely to recur. I have never seen, either when at the bar or on the bench, an indictment charging so many offences of this type against one man. I should hesitate long before endeavouring to lay down a footrule formula which would be the solvent of all difficulties in such cases. Indeed, a formula is not feasible. The nearest approach to a principle which I can find is that the Court must always inquire whether the case falls within the first or the second of the

categories referred to by the Institutional writers, viz., whether the acts under review are independent or interdependent. That must always and manifestly be a question of degree and of circumstances. The circumstances stanced of this case leave no doubt in my mind as to the class within which the case falls. The acts of which the appellant has been proved to be guilty cannot accurately be described as sporadic or unrelated. They are but recurring episodes in an odious enterprise on which the appellant embarked. Holding these views, I am of opinion that the verdict, in so far as it is now challenged, must stand.

As regards the sentence, I desire to say that I take a grave view of the accused's conduct as disclosed by the evidence. It is a scandalous thing that decent women should be subjected to a system of manhandling such as the appellant pursued. I cannot stigmatise in terms too strong the dereliction of duty of which he was guilty in a question with his employees, who were dependent on him for their daily bread. I agree with Lord Pitman that the virtue of none of them was safe in his hands. Nevertheless, having regard to precedent, and looking to the evidence as it now stands, I do not feel constrained to dissent from the view which finds favour, as I understand, with your Lordships, that the appellant's sentence should be reduced from one of four years' penal servitude to one of twelve months' imprisonment. For myself however, I should have been disposed to favour a much smaller reduction.

LORD ORMIDALE .—I concur in the opinion of the Lord Justice-Clerk.

LORD ANDERSON .—The conviction in this case was challenged by the appellant on two grounds—(1) Misdirection by the judge; and (2) Insufficiency of evidence. In my opinion the jury was not misdirected, save as regards a single charge aftermentioned, and therefore the first ground of attach substantially fails.

As regards the second ground of challenge, the appellant's counsel conceded that the conviction must stand as regards charges 8, 12, and 21 of the indictment, as there was sufficient evidence as to each of those charges to warrant the jury in convicting. It was maintained, however, that, as regards the other charges which were held to be proved, the conviction must be quashed, as each of these charges was spoken to by a single witness only. The rejoinder of the Lord Advocate was that the charges in question were sufficiently proved, in the special circumstances of the case, by the evidence of one witness speaking to each separate charge.

The general rule of law is, as stated by Hume on Crimes, vol. ii., p. 383, "that no one shall in any case be convicted on the testimony of a single witness." Corroboration of the testimony of the witness is required, and this corroboration may take the form of written evidence, additional parole evidence, or proof of facts and circumstances which supplements and confirms the oral testimony of the principal witness. The reason why corroboration is required seems to be found in the anxiety of the law to have the truth ascertained with reasonable certainty.

But while the general rule is as stated by Hume, he points out the modifications of that rule which are recognised in special circumstances.

In a proof which is circumstantial Hume explains (vol. ii., p. 384) that two witnesses are not necessary to establish each particular. Again, he states (p. 385) that single witnesses may prove separate acts of the same crime. Alison, Criminal Law, vol. ii., p. 552, gives a more elaborate statement of this exception to the general rule in these words:—

"Where a number of instances of the same crime are charged under one general denomination, and connected together, and forming part of one and the same criminal conduct, as subornation, adultery, &c., each separate act may be competently established by the evidence of a single witness, as each act is in truth nothing but the link by which the guilt upon the whole is established."

A case of this nature must, however, be carefully distinguished from another class of case in which it is proposed to prove, in connexion with a sexual charge, that the accused issue of a licentious disposition. Such proof, whether the charge be civil or criminal, is wholly incompetent—A. v. B. The exception, moreover, as Alison points out (at p. 552), "does not apply to separate crimes, which have no connexion with each other, but are merely repeated acts of the same offence, as acts of theft, robbery, uttering forged notes, or the like, as to which the same evidence is justly required in each charge, as if they stood in so many separate indictments."

Now, the Lord Advocate maintained that he found justification for the verdict of the jury in the foresaid exception to the general rule. He also contended that he found in that exception a justification for the somewhat unusual form in which the indictment is framed. I am of opinion that the contentions of the Lord Advocate, to the extent after-mentioned, were well founded. He argued that he had, by the indictment, charged the accused with a course of criminal conduct and not with a series of isolated and unconnected acts, and he urged that this general charge had been made good by the evidence. It is manifest that such a general charge can be substantiated only if there is a reasonably close connexion, in circumstance and in time, between the specific acts. As regards circumstance, the Lord Advocate founded on these points of resemblance in the different charges—(1) that the assaulted women were all employees of the accused; (2) that each woman was assaulted when alone; (3) that the assaults took place in the premises of the accused; (4) that there was similarity of method in the different assaults; and (5) that the assaults were all sexual in character. I am of opinion that, as regards circumstance, the necessary nexus has been established. The general inducing motive, even in the case of those assaults which the jury pronounced to be merely simple assaults, was undoubtedly lust. As regards time, the evidence discloses that, between the years 1927 and 1930, 15 of the 16 charges found proved by the jury took place. As to those 15 charges I am of opinion that the period of time is not so long as to negative connexion between the specific acts. But the first charge, as to which a conviction of common or simple assault was returned, took place in the year 1923. It is thus completely dissociated in time from the other 15 charges, and must therefore be regarded as an isolated and

independent act of crime. In my opinion that charge should not have been included in the indictment; having been included, it ought, at the conclusion of the proof, to have been withdrawn by the Advocate-depute; this not having been done, the judge ought to have directed the jury that it had not been proved. Accordingly, the conviction under charge 1 cannot stand, and this result, must have a repercussion on those other charges of common assault which are not substantiated by complete proof. These are charges 2, 9, 10, 15, and 17. As to these it is impossible to say that conviction would have taken place, had the jury not taken into account the first charge. These five charges must therefore, follow the fate of charge 1, and, so far as they are concerned, the conviction must be quashed. The charges of indecent assault found proved, as well as charge No. 12, all fall within the triennium ending in 1930, and I am, therefore, of opinion that the conviction must stand as regards these charges.

The result I arrive at is that the accused must remain under conviction of one common assault under charge 12, and of nine indecent assaults under charges 5, 7, 8, 14, 16, 18, 19, 20, and 21.

The appellant also challenged the sentence pronounced against him on the ground of its severity. Even if I had been of opinion that the conviction, in its entirety, fell to be sustained, I should have considered the sentence excessive. I am far from regarding the case as anything but a serious one; but it is a first offence, and anything done fell far short of a completed act. No woman was really injured, physically or, as far as can be gathered, morally. Some were not even annoyed by what was done. Even on the verdict returned by the jury I think a sentence of imprisonment would have been sufficient punishment. If the conviction falls to be modified as I have suggested, my opinion is that an appropriate sentence would be one of twelve months' imprisonment.

LORD SANDS [whose opinion was, in his absence, read by Lord Morison].—This case raises a question of some importance in regard to the law of evidence. Unfortunately the circumstances of the case are so peculiar that it does not raise the general question in a very satisfactory form. It is, however, as I humbly think, desirable that, when a full bench has been convened to consider a matter of this kind, we should make some endeavour to go to the root of the matter.

The object of the leading of evidence is the ascertainment of the truth so far as human fallibility may permit. From certain facts certain inferences fall to be drawn by a fair and reasonable mind. In this view all evidence might appear admissible which would help such a mind to draw a certain inference. But, for one reason or another, rules of law exclude certain evidence as being inadmissible to be taken into consideration, although it might be deemed to answer the above description. (1) Certain kinds of evidence are excluded for reasons of public policy, or a sense of fairness or propriety. Such is the evidence in a criminal case of a spouse (except in special cases), of statements made by the accused to his law agent, statements made in precognition, hearsay, however authentic, statements extorted by the police from a person in custody, or made to them by him without prior caution. (2) Certain evidence is excluded from consideration because it is deemed to be highly prejudicial. The typical case is evidence of previous convictions. There may be cases in which such evidence might quite reasonably aid in coming to a certain conclusion. For Advocate example, there is the case of a man who specialises in a peculiar and rare form of crime, such as the man whose case attracted attention some years ago, whose invariable offence was breaking into a church. Or there might be: the case of a man who had perpetrated some novel and ingenious form of fraud. It cannot, I think, be suggested that the evidence of a witness who detailed an elaborate story told by a party accused of fraud would not be corroborated by evidence that the same man had on another occasion told the same story to somebody else. But this evidence is excluded, at all events where it has led to a conviction and this had to be brought out. That is not because it is not corroborative, but because, in view of the fact that proof of previous convictions would in many cases be merely prejudicial, the law has established a general rule that it shall be inadmissible in evidence. (3) Certain evidence is excluded because it raises a collateral issue. The principle of this exclusion is explained by the Lord President (at p. 404) in the case of A v. B. A certain alleged fact may be relevant in so far that, if established, it might help a fair mind to come to a certain conclusion. Nevertheless, it may fall to be excluded if its ascertainment raises a separate issue from that which is being tried. The alleged fact if put in cross and admitted may be relevant, but nevertheless it may be of a kind which cannot otherwise be proved, for, if it is disputed, it would require to be tried as carefully as the issue before the Court, and the allowance of such collateral inquiries would make proofs endless.

The last case, that of collateral issue, has an important bearing on the class of question which arises for consideration in the present case. It was common ground in the argument that, however narrow may be the limits, there are cases where evidence of the commission of a similar offence may be taken into account, e.g., offences near in time or circumstances against young children. But this is admissible only when the alleged offences founded upon are themselves matter of a charge under the same indictment. This is not simply on the ground of fair notice, for mere notice that such evidence is to be led will not elide the objection. It is disallowed because it raises a collateral issue which is not before the Court—the investigation of a charge which the Court is not called upon to try.

Accordingly, the matter, as I understand it, with which we are here concerned, is limited to the question of the relevancy of evidence in support of one charge as corroboration of the evidence in support of another charge libelled in the same indictment. From the form the matter takes the question is not one primo loco of the admissibility of the evidence at the trial. The evidence is admissible and is led before the jury. The question is the more difficult and subtle one of the legitimacy of taking evidence competently led in support of one charge into account

in support of another charge. The question does not admit of solution by the judge putting the matter to himself thus:—

"The evidence had to be admitted in support of another charge, but would it have been admissible if that other offence had not been charged?"

That would be an easy question. The answer must be "No." But a conclusive reason for the exclusion would have been the rule against the introduction of a collateral issue, and that reason is not present in the case figured.

In regard to the relevancy as corroboration of such evidence as is here in question, there is not, as in the case of previous convictions or of statements by a client to his agent, any clear-cut rule of law formulated in non-ambulatory terms. There are two extremes. On the one hand, it is not in dispute that, in the case of certain offences, such as indecent conduct towards young children, evidence of one offence is corroborative of the evidence of another alleged to have been committed at a near interval of time and under similar circumstances. On the other hand, it is not in dispute that, in the case of two thefts having no peculiar connexion the one with the other, evidence of the commission of the one is not corroboration of evidence of the commission of the other. Cases which fall clearly within the one class or the other present no difficulty. But between the two classes one seems to get into somewhat open country. This consideration leads me to fall back upon what I said at the outset about the function of evidence to ascertain the truth of the matter by fair and impartical inquiry. In that view it is admissible to take into account evidence in support of one charge as corroboration of the evidence in support of another, when the former, taken in connexion with the latter, is—to use a familar old expression—relevant to infer that the panel committed the latter offence. It does not suffice merely that the evidence in support of the one charge makes it more comfortable to convict upon the other; it must be such evidence as helps to bring home the guilt of the accused to a reasonable and logical mind with sure conviction.

Keeping this in view, and also keeping in view the authorities, Institutional and judicial, to which our attention was directed, there are, I think, in what I have described as the somewhat open country, two landmarks which guide to the recognition of such evidence as I have indicated as corroboration. I doubt if there are any other clear landmarks which lead in that direction.

The two offences may be of such a peculiar character or have such incidents attending them as to satisfy a reasonable mind that they were committed by one and the same person. If a man were accused of having on two several occasions obtained food and lodging without payment on the narrative that he was Mr George Bernard Shaw, and of having on each occasion absconded in the morning with the family Bible, then, even though there was a considerable interval of time between the two offences, no reasonable mind could resist the conclusion that identification of the accused as the man who committed the one offence was corroborative of his identification as the man who had committed the other. Any rule of law which was deemed to forbid this would, in my view, be quite unreasonable.

The other landmark is what has been described as embarking on a course of conduct. Where the accused, about the time the alleged offence was committed, has embarked upon a certain peculiar course of conduct, the fact that he had done so its corroborative of evidence of a special act alleged to have been committed in pursuance of that course of conduct. I say "peculiar course," and I do so advisedly. Evidence of a general evil course will not suffice. There must be some peculiarity, or some special incidents, which stamp the offences charged as within the ambit of a course of conduct. This may be illustrated by the case I have already referred to of indecent offences against children. Evidence inferring a course of general immorality would not be admissible or corroborative of an indecent offence against an adult. But indecency against children is a rare and peculiar offence, and, accordingly, evidence inferring a course of conduct is admitted as relevant.

A great deal of the argument in the present case turned upon the question of time—the interval between the alleged acts. This is an important and, in some aspects, a vital consideration. This results from the quality of the acts as evidence of a "course of conduct." A "course" involves some continuity. Acts isolated by a long period of time do not make a course of conduct. But whether a series of acts is to be regarded as disclosing a course of conduct must depend upon the nature of the acts themselves and the surrounding circumstances. A course does not necessarily imply that the offence is committed or attempted every day or even every month. Opportunity or inclination may be intermittent. A man whose course of conduct is to buy houses, insure them, and burn them down, or to acquire ships, insure them, and scuttle them, or to purport to marry women, defraud and desert them, cannot repeat the offence every month, or even perhaps every six months.

Time, however, may undoubtedly be an important factor in determining whether evidence imports a certain course of conduct.

As I have already indicated, misconduct of a general character, if I may use the expression, even though frequent, will not suffice. There must be some special circumstances connecting the incidents in order that it may be held that a course of conduct is established. Unfortunately unsavory illustrations seem to come conveniently to hand. A husband who takes advantage of his wife's absence from home to seek illicit pleasures here and there outside has not entered into a course of conduct within the meaning of the rule. But, on the other hand, a husband who regularly takes advantage of his wife's absence from home to make indecent advances to his own domestic servants in his own house appears to me to have done so.

In my view it is impossible in this matter to formulate any rule which a judge can follow in directing the conduct of a trial as simply as he administers the rules about previous convictions, hearsay evidence, or statements made by a client to his law agent. There is an ambulatory region in which the judge must exercise his own arbitrium,having regard to the circumstances which must vary in every case. I formulate the matter thus to the best of my ability. There its no general rule of law which prohibits a jury, in judging of an accused's guilt or innocence, from taking into account the whole of the evidence led before them in the course of the trial, to whatever charge it may have been more particularly directed. But, in judging of any particular charge, the jury are entitled to take into account evidence led in support of another charge only in so fair as it is relevant to the particular charge they are considering. It is relevant to this effect only when there is such an interrelation between the two charges that evidence in support of the one will aid a reasonable understanding in coming to a just conclusion in regard to the other.

It was remarked, I think, in the course of the hearing that it may sometimes be the duty of the Court to acquit although there is no moral doubt of guilt. By there being no moral doubt I understand that there is sure conviction not supported by evidence in law, for, if there be sure conviction based upon evidence in law, there can be no justification for acquitting. As I have pointed out, there are certain rules of law which absolutely exclude certain kinds of evidence, however helpful in certain cases such evidence might be. There is no such absolute rule here. The evidence is admissible to be taken into account if, taken along with the other evidence, it is "relevant to infer." No question therefore of merely "moral" conviction arises.

I pass now to an examination of the evidence in this case. In view of what has been said by others of your Lordships I shall not enter into any explanation of the general character of the charges.

The first charge libelled as an indecent assault turns out to be a common assault of a most trivial or technical character. It is spoken to by a single witness. There is no evidence of any similar misconduct until four years later. In my opinion the evidence of the witness is not corroborated by the other evidence in the case, and, accordingly, the conviction under this charge falls to be quashed. If this is done, the question is raised as to the bearing of the quashing of the conviction on this charge upon the convictions in certain of the other cases of common assault. The learned judge directed the jury that, in considering each case in this class, they were entitled to take into account the evidence in the other charges in this class. As the evidence in the later charges is not, in view of the long lapse of time, corroborative in law of the evidence in the first charge, so the evidence in the first charge is not corroborative of the evidence in the later charges. In this view I have come to be of opinion that there has been a misdirection, In respect that it was not pointed out to the jury that an exception fell to be made in regard to the first charge as bearing upon the others. For the reason which I shall state in dealing with the more serious charges of indecent assault, there was, I think, sufficient corroboration in law of the other charges of common assault without taking this first charge into account. In view of the number of the cases and the triviality of the earliest one, it seems to me unreasonable to suggest that this one made any difference as to the result. The slight omission in the direction led to "no substantial miscarriage of justice." I appreciate, however, that this last consideration its one to which effect ought not to be given in the general case unless the Court are unanimous. Accordingly, I do not differ from the conclusion, arrived at by the majority of your Lordships, that the Convictions of common assault cannot stand.

There is one matter, in connexion with this branch of the case, in regard to which I desire to make a certain reservation. The judge directed the jury that evidence of charges of one variety of offence could not be kept in view in dealing with offences of another variety. This was not questioned or challenged in argument. But I cannot let it pass as accepted without qualification. It is quite intelligible that evidence in support of charges of common assault should not be taken into view in relation to a charge of indecent assault. But, in such a case as the present, it does not appear to me that the converse holds true. The nonindecent assaults were none of them malicious. They were of a sexual nature, by way of liberties or familiarities with female employees. It is difficult to see why evidence of cases where the accused had gone further must necessarily be ruled out. The present case is so special that the particular point may not be of much importance. But I can quite conceive that the recognition of a universal rule might lead to inconvenient results. For example, a man might be accused of pocket-picking, and of several attempts all made in the same crowed at the same place and on the same day. The accused is identified by the person whose pocket was picked. To say that this evidence cannot be corroborated by that of four or five persons who identify the accused as a man each of them found attempting to pick his pocket on the same occasion would be extravagant. Similarly, if a man assaulted half a dozen different women on the same path on the same evening, it appears to me that it would not be reasonable to rule out evidence of incidents of attempts to ravish from consideration in the cases of indecent assault which could not be brought up so high. Strict technical rules are convenient in the administration of criminal law, but, as it seems to me, we must be chary in creating rules which, in particular cases, may be found to outrage common sense.

But the most serious branch of the case, however, concerns the convictions of indecent assault. There were nine incidents found proven affecting seven witnesses. The earliest in date was some time in 1927 after August, the latest was in February 1930. They all occurred within a period of two years and as half. In each case the party with whom indecent liberties were sought to be taken was an employee of the accused. In each case it occurred in his own premises. The advances were of a similar character. They were not persisted in when repulsed. In my view these considerations establish a course of conduct, viz., for the accused to make indecent advances to his employees when opportunity offered itself and inclination prompted. I think, too, that there is evidence which cannot be ignored that the accused's behaviour was interpreted contemporaneously by his female employees as a course of conduct.

I venture to test the matter of the admissibility of the evidence of other offences as corroboration in this way. I had not the advantage of seeing the witnesses. But, if I had read the evidence of any one alone of the witnesses, I should not have been satisfied as regards that charge. Even if one witness were sufficient in law, I would not have convicted on that charge. But, having read the evidence as a whole, I am satisfied that each and all of the incidents, as spoken to by the respective witnesses, really happened, albeit there may be some inaccuracy of detail, exaggeration, or minimisation. I do not think that this conclusion is one constrained or influenced by any prejudice. I think that it is a rational and reasonable inference to be deduced from the evidence led; and I do not think that it would make for the ends of justice to exclude evidence which may legitimately aid in drawing such an inference, unless we are constrained to do so by some rule of law. Now there is no rule of law which excludes from consideration in dealing with charge A evidence led in support of charges B, C, or D, when that evidence is relevant, along with the evidence led specifically in support of charge A, to infer guilt of the offence A. Evidence led in support of another charge may be, and in general probably is, irrelevant for this purpose. But there may be such an interrelation between the incidents as regards time, place, modus, surrounding circumstances, and relations of parties as to import to the evidence relevancy; in other words, to enable a reasonable mind safely and logically to rely upon it in drawing an inference. No doubt the prudent rule is to exclude evidence of this kind from consideration, unless it appears that, in the special circumstances of the case, such exclusion would disable the jury from arriving at a just and reasonable conclusion in the case.

In regard to the sentence, I am of opinion that it is severe in accordance with the standard usually observed. I have no doubt that the learned judge was influenced in passing it by the number of the offences. But, on examination, it appears to me that there is only one of them which, taken by itself, might not have appropriately been dealt with summarily. No gross assault was persisted in against any young girl. I am, accordingly, of opinion that a sentence of imprisonment will satisfy the justice of the case. Had the charge, as originally formulated, of a scheme of the accused to inveigle young girls into his employment for immoral purposes been made good, the sentence pronounced, so far from being too severe, would hardly have been adequate. The unfortunate formulation of this charge has, as it appears to me, coloured the whole case, and is largely responsible for the difficulties which have arisen.

LORD BLACKBURN .—I agree with your Lordship in the chair that the greatest caution is necessary in applying the rule that the evidence of a single witness to a particular offence may he held to be corroborated by the evidence of another single witness to a similar offence. That such a rule may apply in certain cases admits of no doubt, but it is, I think, difficult, if not hopeless, to attempt to define within precise limits the classes of cases, or the circumstances, in which it should be applied. I agree with your Lordship that there must be a close similarity between the nature of the two offences to each of which only one witness speaks, before the evidence of the one witness can be taken as corroborating the evidence of the other. I also agree that there must be some connexion between the two offences in the matter of time. I have already committed myself to the view that such corroboration is competent in the case of offences against young girls—M'Donald.That appears to me to be a class of case isolated from all others in one respect at any rate, viz., that a child of tender age is not only liable to be easily influenced by an adult, but is herself in the eyes of the law incapable of giving any consent to, or encouragement of, the offence which is committed against her. If what the child says did happen, then a crime has been committed, and the fact that the child is telling a true story may be corroborated by the proved truthfulness of the child on other incidental matters, and by the fact that another child, also proved to be truthful, has had a similar experience at the hands of the same man. But in the case of assaults upon adult women the matter assumes a somewhat different complexion. I do not doubt that the rule may apply where a series of assaults of an indecent or serious character have been committed by a man upon a number of women. But it seems to me that the case of assaults of a minor character, such as those in the present case, in which the jury found the panel guilty of assault only, are in an entirely different category, and one in which the rule should be applied only with the greatest care. No doubt a man may technically assault an adult woman by attempting to kiss her, but it would often be difficult to say that her evidence that she had been assaulted was corroborated by the evidence of another woman who said that she had also been assaulted because she had been kissed by the same man in spite of her protests that she did not want to be kissed. For an adult male to kiss an adult woman may be most reprehensible, but it is not a crime, and cannot become a crime, unless the opposition on the part of the woman is real and not feigned to the smallest extent. For this reason I think that, in the present case, the jury should have been charged that they must consider most carefully the evidence of each individual complaint in which the Crown proved nothing more than an attempt to kiss, before reaching the conclusion that it established a case of assault, or that the assault in one case might be treated as corroborative of an assault in the other. Again, I do not think that evidence by one woman of an assault by attempting to kiss should ever by relied on as corroborating the evidence of another woman who said that she had been indecently assaulted. The two offences appear to me to be of an entirely different character, and, indeed, evidence of attempts to kiss which have been abandoned on discovery that the object was unwilling might justify the inference that the perpetrator did not attempt to proceed further in other cases without some encouragement.

Every case must be judged on its own facts, and coming to the facts of this case I reach the same conclusion as those of your Lordships who hold that the conviction under the first charge cannot stand, and that, therefore, the other charges (except No. 12) on which the jury found the panel guilty of assault only must fall along with it. But in my opinion the charges of indecent assault are sufficiently connected, as regards both the character of the offences and the times and places of their commission, to justify the jury in holding that the evidence of the victims in each individual case was sufficiently corroborated by the evidence of the

victims in the other cases, and, accordingly, I reach the same conclusion as all of your Lordships have that these convictions must stand.

I agree that the sentence should be reduced and that a sentence of twelve months' imprisonment is appropriate, and I only desire to add that I concur entirely in the adverse criticisms which have been passed on the indictment.

LORD MORISON .—I think that the indictment in this case has been framed in a most unfortunate manner, and I agree with the observations in this subject made by the Lord Justice-Clerk. An unnecessary number of charges have been included in the indictment, and, from the facts proved, many of them have been grossly overstated or misrepresented in the indictment.

In result I am not surprised that some confusion existed at the trial as to the precise questions which were raised by the evidence led. But I desire to say that, in my opinion, the presiding judge grouped the charges accurately, and except on one point, correctly laid down the law which was applicable to them. I think, however, that Lord Pitman's attention was not directed to the date of the first charge or to the fact that it was not proved. In my opinion the presiding judges ought to have directed the jury that they could not, on the evidence as led, convict the prisoner of the first count in the indictment. Having regard to the direction given by the presiding judge in regard to this charge—which, in my view, was erroneous—and its relation to certain other cases of common assault of which the panel was convicted, viz., Nos. 2, 9, 10, 15, and 17 of the indictment, I think the verdict cannot stand as regards these charges. As regards the charges of indecent assault of which the panel was convicted, I am of opinion that the jury's verdict must stand. It is quite true that a common law crime cannot be proved by one witness only. The law does demand that there must be two witnesses to prove a crime, but, although that be so, any fact in the charge may be proved by the testimony of one credible witness. As regards the cases of indecent assault on his employees, the charge against the prisoner is in its nature one in which there was a systematic course of criminal conduct on his part, in which each act was committed in similar circumstances and under the same conditions. I have no doubt that the evidence of each of the principal witnesses, if accepted, was competent corroboration of the appellant's guilt in each of the charges libelled. I agree that, in view of the partial setting aside of the conviction as recorded, the sentence should be reduced to the period of imprisonment suggested.