H. M. Advocate v Cox
| Jurisdiction | Scotland |
| Judgment Date | 25 October 1961 |
| Docket Number | No. 8. |
| Date | 25 October 1961 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Hunter.
Evidence—Sufficiency—Corroboration—Panel charged with two charges of incest and one of sodomy—Interrelation of alleged crimes—Whether "the same crime"—Separation in time.
An accused was tried on indictment with two charges of incest and one charge of sodomy. The alleged crimes were all said to have taken place in the family home. Each crime charged was said to have involved the accused and one of his stepchildren. The first charge was one of incest with one stepdaughter during the period 1955 to 1957. The second charge was one of incest with another stepdaughter which, on the evidence, related to 1960. The third was one of sodomy with a stepson on various occasions between 1957 and 1961. The Crown sought to found for corroboration upon the doctrine in Moorov v. H. M. Advocate, 1930 J. C. 68.
Held by Lord Hunter (1) that as sodomy was not the same crime as incest, the doctrine in Moorov was not applicable to the charge of sodomy; and (2) that, as the evidence in relation to the two charges of incest indicated an interval of three years between the alleged crimes, the doctrine of Moorov should not be applied to the incest charges either.
Moorov v. H. M. Advocate, 1930 J. C. 68,considered.
Bernard Reilly Cox was charged on an indictment which, as amended, stated:—"The charges against you are that you did (1) on various occasions between 29th November 1955 and 27th January 1957, in the house occupied by you at 4 Stirling Street, Dundee, have incestuous intercourse with Florence Spalding Millar or Henderson, now aged 21 years, your stepdaughter and the lawful daughter of your wife, Florence Spalding or Millar or Cox, and then residing with you there; Contrary to Act I, James VI, cap. 14 and the 18th Chapter of Leviticus therein referred to, and in consequence thereof she became pregnant and was delivered of a male child on 27th January 1957; (2) on various occasions between 25th May 1957 and 24th July 1961 in the house occupied by you at 26 Fingarth Street, Dundee, have incestuous intercourse with Robina Allan Millar, now aged 15 years, your stepdaughter and the lawful daughter of your said wife, Florence Spalding or Millar or Cox, and then residing with you there; Contrary to Act I, James VI, cap. 14, and the 18th chapter of Leviticus therein referred to; and (3) on various occasions between 25th May 1957 and 24th July 1961, in said house at 26 Fingarth Street, Dundee, with your private member penetrate the hinder part of the body of George Millar, now aged 12 years, your stepson residing with you there and did have unnatural carnal connexion with him."
The accused was tried in the High Court at Dundee by Lord Hunter and a jury on 24th and 25th October 1961.
At the conclusion of the evidence Lord Hunter heard legal submissions by counsel for the parties in the absence of the jury. The Crown sought to found, for purposes of corroboration, upon the doctrine inMoorov v. H. M. AdvocateSC, 1930 J. C. 68.
LORD HUNTER.—At the conclusion of the evidence the learned Advocate-Depute and counsel for the panel have debated certain legal points. I think it better to deal with their submissions at this stage, so that both counsel may be aware, when they come to address the jury, of my views on these legal questions, which questions give rise, in certain respects, to problems of some difficulty.
The indictment as amended now contains three charges. The first charge is of incest with a stepdaughter, Florence, and the period libelled is between 29th November 1955 and 27th January 1957, the place being the house then occupied by the panel at 4 Stirling Street, Dundee. The second charge, as now amended, is of incest with Robina, another stepdaughter, on various occasions between 25th May 1957 and...
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