H. M. Advocate v Semple
| Jurisdiction | Scotland |
| Judgment Date | 23 February 1937 |
| Date | 23 February 1937 |
| Docket Number | No. 7. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Ld. Fleming. Ld. Moncrieff.
Crime—Procuring abortion—Attempt to procure abortion—Supplying powders to pregnant woman and instigating her to take them with intent to cause abortion—Powders not stated to be noxious—Relevancy.
Crime—Procuring abortion—Acting with intent to procure abortion—Supplying powders to woman and instigating her to take them with intent to cause abortion—No statement that woman was pregnant—Relevancy.
Crime—Procuring abortion—Attempt to procure abortion—Supplying drugs—Drugs known to supplier to be incapable of causing abortion.
An indictment set forth that the accused supplied a number of powders, whose nature was unknown to the prosecutor, to a woman who was then pregnant, with intent to cause her to abort, and instigated her to take them, which she did, and that the accused attempted to cause the woman to abort. A further charge regarding another woman set forth that the powders were supplied in the belief that the woman was pregnant, and that this was done with intent to cause her to abort.
Held that the first charge was relevant in respect (1) that the statement that the accused had supplied powders to a pregnant woman and instigated their consumption was a relevant averment of an attempt to procure abortion; (2) that it was unnecessary to state that the powders were calculated to cause abortion, if they were supplied with that intent; and (3) that it was unnecessary to aver the locus where the powders were consumed.
Held further that the second charge was irrelevant, in respect that it did not state that the woman was pregnant, and that supplying powders to, and instigating their consumption by, a woman who was not pregnant did not per se constitute a crime known to the law of Scotland.
H. M. Advocate v. Anderson, 1928 J. C. 1,approved.
At the trial direction to the jury by Lord Robertson that, if the accused knew positively that the drugs he was giving would not cause abortion, he could not be convicted of the crime of attempting to procure abortion.
John Semple was charged on an indictment at the instance of His Majesty's Advocate, containing a number of charges, of which the following were typical:—"(1) That you John Semple did, on or about 20th November 1935, at the premises occupied by you at … Glasgow, supply to [a woman], she being then pregnant, a number of powders and pessaries, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take and use the same, which she did, and thereafter between 1st December 1935 and 27th December 1935, both dates inclusive, on the representations by the said [woman] made to you that she had consumed the said powders and used the said pessaries without effect, you did successively between said last-mentioned dates, she being still then pregnant, at … and … Glasgow aforesaid, supply to her further powders and a quantity of liquid preparation, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take the same, which she did, in accordance with your instructions, and you did attempt to cause her to abort." "(6) That you John Semple did, on or about 1st February 1935, at … Glasgow and … Perthshire supply to [a woman] in the belief that she was then pregnant, a number of powders and pessaries, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take and use the same, which she did, and thereafter between 1st February 1935 and 30th April 1935, both dates inclusive, on the representations by the said [woman] made to you that she had consumed the said powders and used the said pessaries without effect, you did successively between said last-mentioned dates, in the belief that she was still then pregnant, at … at … and at … aforesaid, supply to her a number of pills, a further quantity of powders and a quantity of liquid preparation, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take the same, which she did, in accordance with your instructions, and this you did with intent to cause her to abort."
The accused, who pleaded not guilty, stated objections to the relevancy of the indictment, and the case was heard before the High Court (consisting of the Lord Justice-Clerk, Lord Fleming and Lord Moncrieff) on 24th November 1936.
LORD JUSTICE-CLERK (Aitchison).—This is an indictment which sets out eleven separate charges. All the charges, with the exception of charge 2, relate solely to the panel John Semple. No objection is taken to the relevancy of Charge 2. Objections are taken to the relevancy of the other charges, which fall into two groups. Charges 1, 3, 4, 5, 8, 9, 10 and 11 are in substantially the same position, and charges 6 and 7 raise the same question as the other charges, but they also raise an additional question.
Now, taking charge 1, which may be taken as typical of the first group of charges, it is as follows—I do not read it at length, but I read it in summary—that you John Semple did on or about 20th November 1935, at premises libelled, supply to the woman named in the indictment, she being then pregnant, a number of powders and pessaries, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take and use the same, which she did: and thereafter on representations made to you by the said woman that the powders and the pessaries had been without effect, you did between certain dates libelled supply to her, she being still then pregnant, further powders and a quantity of liquid...
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