Kepple v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1936 |
| Date | 20 March 1936 |
| Docket Number | No. 12. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Morison. Lord Fleming.
Crime—Previous convictions—Reference to previous convictions in Court prior to verdict—Reference to convictions by witness in answer to question by prosecutor not involving such reference—Criminal Procedure (Scotland) Act, 1887 (50 and 51 Vict. cap. 35), sec. 67.
The Criminal Procedure (Scotland) Act, 1887, enacts:—Sec. 67. "Previous convictions against a person accused shall not be laid before the jury, nor shall reference be made thereto in presence of the jury before the verdict is returned; …"
An accused was tried on an indictment which set forth that he had assaulted his wife, and had previously evinced ill-will and malice towards her. In the course of the trial the accused's wife gave evidence. The prosecutor asked her: "Will you tell us when he threatened to do you in, any of the dates?" The witness answered: "On two previous convictions of thirty days he got he threatened me. He said he would swing for me."
Held that this answer did not contravene the provisions of sec. 67, in respect that it was given in reply to a competent question not involving any reference to previous convictions; and appeal against the conviction dismissed.
Corcoran v. H. M. Advocate, 1932 J. C. 42,commented on.
Charles Frederick Kepple was charged on an indictment at the instance of His Majesty's Advocate, which set forth that "you did (1) assault Annie Friel or Kepple, your wife, … and you did previously evince ill-will and malice towards the said Annie Friel or Kepple." He was tried in the Sheriff Court at Dumbarton before the Sheriff (Black) and a jury, and was found guilty and sentenced to nine months' imprisonment.
The panel appealed to the High Court of Justiciary against his conviction, in terms of the Criminal Appeal (Scotland) Act, 1926, on,inter alia, the following ground:—"(3) That accused's previous convictions were revealed to the jury by prosecutor's leading questions."
At the trial, the panel's wife was examined as a witness for the Crown. She deponed, in answer to the prosecutor, that the accused had threatened her, prior to the alleged assault. She was then asked, "Will you tell us when he threatened to do you in, any of the dates?" She answered, "On two previous convictions of thirty days he got he threatened me. He said he would swing for me." A further reference to previous convictions was made by a police witness in answer to a question in cross-examination by the panel's solicitor as to whether previous complaints against the panel had been dealt with according to law; and the panel himself referred to these convictions in answer to a question by the prosecutor whether he had previously done his wife an injury.
The appeal was heard before the High Court of Justiciary on 11th March 1936.
At advising on 20th March 1936,—
LORD JUSTICE-GENERAL (Normand).—The appellant in this case was convicted by a majority of the jury of assaulting his wife and of assaulting a Mrs Campbell. Against that conviction he now appeals. The reasons for the appeal argued to us were two-fold. One of these was that there was no evidence on which a reasonable and honest jury could find a verdict of guilty. I listened carefully to the able speech of Mr Grant, but I am satisfied that there was ample evidence, and that we cannot interfere with the verdict on the ground that it was perverse. The other reason for the appeal requires more detailed consideration. The appellant complains that previous convictions were referred to in the evidence, and that the Sheriff failed to tell the jury that they were bound to ignore that evidence. He maintains that on these grounds the conviction was bad.
The indictment bore that the appellant had evinced ill-will and malice...
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