On Monday last, the Circuit Court of Justiciary was opened here by Lords Hermand and Succoth.
After the usual preliminaries, the Court proceeded to the trial of Robert Hay, residing at Knockorth, in the county of Banff, accused of the crime of forgery. - This was a case of an extraordinary nature, of which the following is a brief outline: - In the month of July last, the pannel called at the Office of the Commercial Bank of Scotland in Banff, somewhat after Bank hours, and presented for discount a bill for L.30, purporting to be drawn by William Smart, in Kirkland of Forgue, upon and accepted by George Fordyce, Brae of Bognie, and Alexander Bartlett, Mains of Bognie, whose name he assumed. The Agent for the Bank immediately detected the forgery, and desired the man to return on the following day; who, noways alarmed at the delay, and the probability of a discovery, said it would be inconvenient for him to remain in Banff so long, and that he would call at the Bank Office that evening, betwixt 6 and 7. He accordingly returned in the evening, and the Procurator Fiscal, and Sheriff Substitute having been in attendance, he was charged with the forgery; and while the warrant for his committal was preparing, he laid violent hands upon the bill, (then lying within his reach) and put it into his mouth with the intention of destroying it. - Force was immediately used, to take it from him, and after a considerable struggle, he disgorged it, but so gnawed and masticated, that it was quite illegible.
When the case was called, Mr Jeffrey, and Mr Hope Cullen, appeared for the pannel; and Mr John Hope, Advocate Depute, for the Crown.
In this stage of the case, Mr Hope Cullen stated, on the part of the prisoner, an objection to the relevancy, in bar of trial. The nature of this objection was, that the document or forged bill founded on, not being produced, it was incompetent to prove its tenor by parole evidence. Mr Cullen, in a very distinct and perspicuous manner, drew the analogies, as far as applicable, between this and former cases which had been under the consideration of the Court; and shewed considerable research, in elucidating a point unquestionably attended with some difficulty.
On the part of the Crown, the objection was very ably answered by Mr Hope, Advocate Depute; who contended, that in a variety of cases formerly before the Court, the decisions had been uniformly against the relevancy of such objections. However much the case for the Crown might be weakened by the absence of the forged document; yet the want of it was not sufficient to bar trial. The pannel was not entitled to avail himself of his own tortuous act and deed, to screen himself from public justice; and where the Crown was deprived of the best evidence, viz. the forged document itself, it was the privilege, as well as duty, of the Public Prosecutor to adduce the next best evidence that might remain.
Mr Jeffrey replied, for the pannel, in a speech of much ingenuity, in which he displayed his wonted eloquence, to the admiration of a crowded court.
The Court, however, repelled the objection; and the usual interlocutor of relevancy having been pronounced, a jury was impanelled, in whose presence the prisoner pled
not guilty.
The Advocate Depute then proceeded to call his witnesses; and after some evidence was taken, on the part of the Crown, Mr Jeffrey again rose, to object to a question put by the Public Prosecutor, which went directly to prove, that the bill, before its destruction by the pannel, was a forgery. He stated that, although the Court had found that the objections made, in limine, were insufficient to bar the trial, as the case might be made out by other documents or collateral circumstances; yet he conceived it at variance with the Law of Scotland, to prove, from memory, the nature of a document such as the present; more particularly as it went to affect the life of the unfortunate pannel at the bar. Mr Jeffrey was equally luminous and eloquent on various other points of objection, but without effect. He then stated to the Court, that so save farther trouble, he was authorised, on the part of the prisoner, to make a candid confession of his guilt; and the Advocate Depute having been advised to restrict the libel to an arbitrary punishment, a verdict of
guilty was returned, in terms of his own confession.
[...]
Yesterday morning the Court met again; when Robert Hay, tried on Monday, received sentence of transportation for 7 years.
Published in the Aberdeen Journal, Wednesday 29th September 1819.
