gomery, Efq; late Lord Provost of Edinburgh, commanding a party of the guard to repair to the profecutor's house, to fearch for, feize, and apprehend him, and all those who should be found in company with him in faid house, and commit them prifoners to the faid. guard, did, without any just cause, abuse and maltreat the profecutor, or those in company with him, in the way and manner libelled, either in the profecutor's house, or in the street, or in the guard-room; or that they, or any, or one or other of them, were guilty, actors art and part, in the forefaid facts found relevant; but allow the pannels to prove," &c.

The jury," by a majority of voices, find, That Alexander Miln, corporal, commanding officer of the party, is guilty art and part in abusing and maltreating the profecutor, and fome of those in company with him, by not allowing Mr Wightman to write to the Provoft, by refusing the ufe of chairs when asked, and by the ignominious way and manner of carrying them, in broad day-light, through the streets, from the houfe of Mr Wightman to the guard, one or other of them, without hats, wigs, or fhoes: and do find the whole other pannels not guilty."

The counfel for Miln moved to be heard on the import of this ver-dict; and the counsel for the private complainer agreeing thereto, the court delayed advising the verdict till the 22d.

Counfel were heard accordingly; and the court, Jan. 22. 1759, "in respect of the faid verdict, affoilzie the faid Alexander Mila: pannel fimpliciter, and difmifs him from the bar."

Act. Hew Dalrymple, Lockhart, Ro. Dundas, Adv. et alii. Garden; for the foldiers, Burnet.

For the Provost,.

There is no minute of debate or pleading in the record; which is fomewhat furprifing, as the court has often ordered minutes, and even informations, upon queftions lefs important and lefs doubtful than this. There feems, with fubmiffion, to be reason for thinking, that some punishment fhould have been inflicted on Miln, in confequence of the verdict against him; the rather, that it is admitted in

the

the information for him, that there was no difturbance in Mr Wightman's houfe when he entered it, but all quiet: fo that it is evident, Mr Wightman, and his company, were expofed to the multitude, and imprisoned, not to quell a fubfifting disturbance, but because two drunk gentlemen had ftruck at the town-guard; for which the apparent impropriety of the entry, and their drunkennefs, was no bad excufe. It is afked, What could the foldiers do when attacked? The anfwer is obvious. Eight armed foldiers had fuch a fuperiority over three gentlemen, that they might have done what they pleased. In fact they did do fo. What they ought to have done was, to have difregarded the impotent attack of the drunk gentlemen, and gone about their bufinefs. Befides, what apology can be made for refufing to allow Mr Wightman to write to the Provost? what for refufing chairs, and hauling them, in the condition they were in, along the street? The jury justly held both to be criminal: and it will be observed, the first is in effect admitted to be fo, even in the pious information for the Provost.

N. B. There is a deal of altercation in the papers about a precognition taken by the magiftrates relative to this affair; but the court took no notice of it, and it was not material to the caufe. In the information for the Provost, it is averred, that the Lord Advocate declared, he had given his concourse in this case officially, and appeared for the prosecutor as a private counsel. The fame information likewise takes notice, that tho' the counsel for the prosecutor had, at the hearing, represented the Provost's servant as a favourite maid; yet, in the paper for him, all infinuations on that topic had been dropped; and with reafon, fhe being in reality an old

woman.

HE was indicted on the act 1690; and it was particularly char

SHE

ged, That she had been delivered on the 7th January of a living child, come to the full time, which she had bereaved of life, by an immediate act of violence, or throwing it into a ftank or ditch, full of water, where it perished.

The court affigned the prifoner counfel, found the libel relevant, and allowed her to prove, &c.

It appeared from the depofitions, and her own declaration, That foon after her delivery, fhe confeffed to fome old women, she had born a child, and thrown it into a neighbouring ditch; but denied she had done it any violence: That these women found it there with one of its arms raised a little above the water; but that they observed no marks of violence upon it, faving fome blood about its mouth, and upon the stone on which it was lying. No physician or furgeon was called to inspect the body.

She failed in an attempt to prove, that fhe had revealed her being with child during her pregnancy; so that she was clearly within the statute: and the Advocate, in charging the jury, laid great ftrefs on the circumstance of the child's arm being above the water, as affording evidence, that it had been once alive, and put to death by violence.

It was argued for the prifoner, That it had always been reckoned hard, to convict one in her unfortunate fituation, merely upon the ftatutory prefumption; and for many years, a proof of actual vio

lence had been required *: That there was no proof of violence in this cafe, but direct evidence to the contrary by the depofitions of the women, who all agreed, that they perceived no marks of it upon the body: and as to the circumftances of the blood and the arm, these might be accounted for in many different ways confiftently with her innocence: That if men of skill had been called to infpect the body, as they fhould have been, they could have determined, with abfolute certainty, whether or not the child had ever been alive, by putting its lungs into a veffel full of water: if it had never breathed, the lungs would have funk to the bottom; if it ever had, they would have swam on the surface †. As this had not been done, and all those who did see the body concurred in depofing there were no marks of violence upon it, the jury ought to acquit her.

The jury, however, found her guilty; upon which she was adjudged to be hanged; and was executed accordingly.—She all along denied she had done any violence to the child; and affirmed it was ftill-born.

* In the information for Troublecock, [No 35.] it is faid of this act, "That "it is a hardy and dangerous law, upon which, it is generally believed, more inno"cent perfons have died than ever did upon any ftatute." There is, however, a ftatute to the fame purpose both in France and in England; and in 1678, Fountainhall wifhed for fuch an one in this country.

+ The experiment above mentioned had not hitherto been attended to; but afterwards, in the inftructions to the fheriffs, they were ordered to caufe perfons of fkill. make it whenever fuch a cafe occurred.

N° 72.

July 1763.

N° 72.

His MAJESTY'S ADVOCATE,

AGAINST

JANET RONAL D.

Adjournment after the jury has been fworn, and charged with the prifoner, annuls the fubfequent procedure and verdict.—Proper method in fuch cafe is to difcharge the jury, and try the prifoner of new.

AT

T the circuit-court held at Perth in May 1763, this woman was brought to trial, at the inftance of his Majefty's Advocate, for an attempt to poison Margaret Ronald, her fister, by mixing with her food verdigrease, or fome other poifonous drug, which threw her into violent vomitings; but of which, by the ufe of medicine, fhe recovered on the fame day on which fhe was taken ill.

The advocate-depute, though he contended, that even an attempt to poison is a capital crime; yet, on account of fome favourable circumstances, he was pleafed to restrict the libel to an arbitrary punishment.

upon

her coun

herfelf The prisoner pleaded, Not guilty; and put try. A jury was fworn and fet, and the witnesses were examined in their prefence.

After the evidence was concluded, while the advocate-depute was addreffing the jury upon the import of it, David Melvill, one of the jurymen, was fuddenly feized with a violent convulfion, which rendered him for fome time quite fenfelefs; and though he was immediately blooded, and every thing done for his recovery, it was to no purpose, and it became neceffary that he fhould be carried out of court. The judges, after waiting a confiderable time, and taking the report of the furgeon who attended him, were fatisfied there was no hopes of his recovering fo much as to be able that day to perform the remaining part of his duty; the court therefore adjourned till

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