Morton v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 12 November 1937 |
| Docket Number | No. 9. |
| Date | 12 November 1937 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Justice-Clerk. Ld. Fleming. Ld. Moncrieff. Lord Pitman. Lord Wark. Lord Carmont.
Evidence in Criminal Cases—Sufficiency—Indecent assault—Identification of accused—Accused identified only by woman assaulted.
"By the law of Scotland, no person can be convicted of a crime or of a statutory offence, except where the Legislature otherwise directs, unless there is evidence of at least two witnesses implicating the person accused with the commission of the crime or offence with which he is charged."
This rule reaffirmed and applied by a Full Bench in quashing a conviction of indecent assault, where the only incriminating evidence was that of the assaulted woman, who identified the accused as her assailant, and the only other direct evidence that of a witness, who had seen the assault committed but was unable to identify the assailant.
M'Crindle v. MacMillan, 1930 J. C. 56,overruled, and dicta in M'Lennan v. H. M. Advocate, 1928 J. C. 39, and Strathern v. Lambie, 1934 J. C. 137, disapproved.
Henry Morton was tried before a Sheriff and jury in the Sheriff Court at Glasgow, on an indictment at the instance of His Majesty's Advocate which set forth, inter alia, that, on 11th November 1936 in a close at 8 Annbank Street, Glasgow, he indecently assaulted a woman named in the libel.
At the trial the woman named in the libel deponed that on 11th November 1936 the accused had hustled her into a close at the address libelled, and had there indecently assaulted her. On 27th January 1937, at an identification parade in a Glasgow police station, she identified the accused as her assailant, and she further identified him in Court. She had not known him before the assault. She was not cross-examined regarding her identification of the accused. A witness whose house overlooked the close deponed that, on looking out of her window, she saw the woman being assaulted by a man in the close. On this witness calling out the man ran away and she did not see his face. She was unable to identify the accused as the assailant. The only other material evidence was that of a brother of the woman assaulted, who deponed to her returning home in a distressed condition and informing him of the incident. Apart from that of the woman assaulted, there was no evidence identifying the accused as her assailant.
The accused was convicted upon this and another charge of indecent assault in the same indictment, and the Sheriff-substitute (S. M'Donald) sentenced him to twelve months' imprisonment.
The accused appealed to the High Court of Justiciary under the Criminal Appeal (Scotland) Act, 1926, against his conviction on both charges. The grounds of appeal, so far as concerns this report, were that the verdict was contrary to the evidence. The case was heard before the High Court on 9th July 1937, when the appeal against the conviction with which this report is concerned was remitted to be heard before a Full Bench, the appeal against the conviction under the other charge being refused.
The case was heard before a Full Bench (consisting of the Lord Justice-General, the Lord Justice-Clerk, Lord Fleming, Lord Moncrieff, Lord Pitman, Lord Wark, and Lord Carmont) on 28th October 1937.
At advising on 12th November 1937 the opinion of the Court was delivered by—
LORD JUSTICE-CLERK (Aitchison).—The appellant, Henry Morton, was tried and convicted in the Sheriff Court at Glasgow upon an indictment charging him with two separate offences of indecent assault committed upon different women. He appealed against conviction, and, as regards the first charge on which he was convicted, the appeal has already been refused. The question which is now before us is whether there was sufficient evidence in law upon which the jury could find the appellant guilty of the second charge.
The only evidence of the identity of the assailant was the direct evidence of the young woman herself, who deponed to the facts set out in the indictment. The man who assaulted her was a stranger whose name she...
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