Shaw v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 08 January 1953 |
| Docket Number | No. 8. |
| Date | 08 January 1953 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Patrick. Lord Mackintosh.
Crime—Art and part—Murder—Two panels charged with murder—Evidence against each panel sufficient to justify conviction—Concert not essential to case for prosecution—Review—Judge's charge—Alleged inadequacy of directions on law of concern—Refusal to direct jury to acquit in event of concert not being established.
Two panels were indicted on a charge of murder. One was convicted of murder, the other (who was feeble-minded) of culpable homicide. The former appealed against his conviction on the ground, inter alia, that the presiding Judge's charge was inadequate on the law of concert and, in particular, that he had refused to direct the jury that, as the murder might have been committed by one man, they must, in the event of concert not being established, and there being reasonable doubt as to who the one man was, acquit both panels.
Held, distinguishing Docherty v. H. M. Advocate, 1945 J. C. 89, that, as there was sufficient evidence against each panel independently to justify his conviction, the proper direction to the jury was that they must consider the case against each separately and with reference only to the evidence against him; and that in the circumstances of the case the charge on the law of concert was adequate.
George Francis Shaw and George Dunn were charged on an indictment at the instance of Her Majesty's Advocate, which set forth that "you did between 17th and 24th August 1952, both dates inclusive, in a hut … in the parish and county of Lanark, assault Michael Conly, known as Michael Connelly, who resided there, and did strike him on the hands, face and head with a brick, an iron bar and a bottle, or other similar instruments, and did rob him of two pairs of socks and a sum of money, the amount of which is to the prosecutor unknown, and you did murder him."
The panels pleaded not guilty and they were tried before Lord Carmont and a jury at a sitting of the High Court at Glasgow on 2nd December 1952 and following days. The jury, by a majority, found the panel Shaw guilty of murder as libelled and the panel Dunn (who was feeble-minded) guilty of culpable homicide.
The evidence against Shaw, which the Court considered sufficient to justify his conviction apart from the evidence against Dunn, was, briefly, that he was seen in the vicinity of Connelly's hut on Sunday, 17th August 1952; that on that day he had in his possession more money than was to be expected; that, when arrested, he was wearing a pair of socks that belonged to Connelly; that a footprint made by him was...
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Notes Of Appeal Against Conviction And Sentence By (first) Paul Green, (second) Lee Noonan And (third) Robbie Darren Brown
...that, in the event of a failure to prove concert, acquittals had to follow (Docherty v HM Advocate 1945 JC 89 at 99; Shaw v HM Advocate 1953 JC 51). The case could have been decided on the basis of the actings of at least some of the individual appellants, but the Crown chose to proceed on ......
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McPhelim v HM Advocate
...to Lennie v. H. M. AdvocateSC, 1946 J. C. 79. 3 1945 J. C. 89. 4 1934 J. C. 60. 5 Reference was also made to Shaw v. H. M. AdvocateSC,1953 J. C. 51. 1 16 and 17 Geo. V, cap. 2 1959 J. C. 32. 3 26th November 1957, unreported. 1 1959 J. C. 32. 2 1946 J. C. 79. ...