Paton v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 December 1935 |
| Docket Number | No. 5. |
| Date | 20 December 1935 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Hunter. Ld. Anderson.
Review—Powers of High Court under Criminal Appeal (Scotland) Act, 1926—Power to substitute new verdict and sentence—Motor car accident—Conviction on indictment charging culpable homicide—Substitution of verdict of guilty of statutory offence of reckless or dangerous driving—Substitution of fine for imprisonment—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 3 (2)—Road Traffic Act, 1930 (20 and 21 Geo. V, cap. 43), sec. 11.
Indictment—Motor car accident—Indictment libelling charge of culpable homicide—Whether competent to convict of statutory offence of reckless or dangerous driving although not libelled—Road Traffic Act, 1930 (20 and 21 Geo. V, cap. 43), sec. 11—Road Traffic Act, 1934 (24 and 25 Geo. V, cap. 50), secs. 34 and 37.
Crime—Culpable homicide—Motor car accident—Necessity of proving gross negligence.
The Road Traffic Act, 1930, enacts, by sec. 11, that it is an offence, punishable by imprisonment or fine or both, to drive a motor vehicle recklessly or at a speed or in a manner dangerous to the public. The Road Traffic Act, 1934, enacts, by sec. 34, that, where a person is indicted for culpable homicide in connexion with the driving of a motor car, the jury may, if they are satisfied that the accused is guilty of an offence under sec. 11 of the Act of 1930, find him guilty of such offence.
The Criminal Appeal (Scotland) Act, 1926, enacts, by sec. 3 (2), that, where an appellant has been convicted of an offence and where the jury could, on the indictment, have found him guilty of some other offence, the Court may, instead of dismissing or allowing the appeal, substitute for the jury's verdict a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence.
The driver of a motor car was charged with culpable homicide in connexion with the driving of the car. At the trial the Sheriff-substitute directed the jury that, if they did not find the accused guilty as libelled, they might, in terms of sec. 34 of the Act of 1934, find him guilty of a contravention of sec. 11 of the Act of 1930. The jury retired, but were recalled by the Sheriff-substitute after an absence of twenty minutes and were directed by him that, in view of the provisions of sec. 37 of the Act of 1934, they could not return a verdict of guilty of the statutory offence, in respect that that offence had not been libelled. The jury, without again retiring, unanimously found the accused guilty of culpable homicide as libelled, and he was sentenced to six months' imprisonment.
In an appeal under the Act of 1926, held (1) that there was evidence to justify the jury's verdict; but (2) (diss. Lord Hunter) that, as the second direction given by the Sheriff-substitute, which was unfavourable to the appellant, was unsound, and as the jury, if they had been left with the first direction, might have found the appellant guilty of the statutory offence instead of finding him guilty of culpable homicide, and as it appeared that the jury must have been satisfied of facts which proved the appellant guilty of the statutory offence, the Court was entitled, in terms of sec. 3 (2) of the Act of 1926, to substitute for the verdict of culpable homicide a verdict of guilty of the statutory offence and to impose a lesser penalty. The Court substituted for the verdict of culpable homicide a verdict of guilty of a contravention of sec. 11 of the Act of 1930,quashed the sentence of imprisonment, and substituteda fine of £50 therefor.
Observations, per the Lord Justice-Clerk, on the degree of negligence requisite to support a charge of culpable homicide.
On 15th October 1935 Alexander Gorrie Paton was charged in the Sheriff Court at Lanark upon an indictment charging him with culpable homicide.
The indictment was, inter alia, in the following terms:—"… the charge against you is that on 12th August 1935 on the road from St John's Kirk to Abington and at a part thereof at Chesterhall Farm, … you did drive a motor car … then proceeding southwards under your charge in a culpable and reckless manner and at an...
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