1676 a large gold chain, gold bracelets, a gold ring with wa blue stone, two pieces of gold, twelve of silver,

and five purse pennies, silver buttons, broatches, and various other articles. They then got from Kennedy several drugs, which he called powder of jalap, and crystal of tartar, which they gave to their master. Clerk told Kennedy, that their master being ill, they had stole several pieces of coin from him, and that there were three bags of money in his chest; that they were resolved to take some of it, and would give Kennedy a part. They gave the jalap and the tartar to their master to counteract the effect of Brown's prescriptions.

On the Wednesday preceding their master's death, which happened on Monday the 15th of November, 1674, Anderson's friends visited him, and he told them he was greatly better. On this, the prisoners fearing his recovery, and that he should discover their practices, came to a positive resolution to murder him, communicated it to Kennedy, and sought poison from him to effect their purpose. But Kennedy would not give poison, saying the body would swell, and so they would be discovered; but he would give a powder which would do the business slowly, and which he would engage would kill their master in a month. They got a powder accordingly, which Kennedy called powder of jalap, but which, either in quality, quantity, or frequency of being administered, was truly poison. On the five days immediately preceding his death, the prisoners, and their associate Kennedy, held frequent consultations in the shop of Kennedy's master, in the house of the deceased, and in the King's Park. They gave Kennedy

part of what they had already stolen, and promised 1676 him an equal share of their future plunder. On Sa turday night, the deceased was so well, that his apothecary said he would not visit him next day. On Sunday he was not thought near death, but rose, dressed himself, and supped in his usual stile. On Sunday night, the prisoners mixed some drugs in conserve of roses that had been prescribed for him by his own apothecary. These were so poisonous that he died on Monday morning at ten o'clock.At five o'clock, their master called for the bed-pan, which they gave him. They then ran to the iron chest, filled their hands with jewels, goods, and money, belonging to their dying master, and did not look near him till about eight o'clock, when they found him speechless, the white of his eyes turned up, and the bed swimming around him. They then called in the neighbours to see him die.

Both the prisoners emitted confessions correspond. ing in general to the charge in the indictment. They added, that, before they conceived the idea of giv. ing their master drugs to bereave him of life, they had frequently been in use to infuse powders in his drink, which made him outrageously drunk, that they might make sport of him in his drunkenness: a dreadful lesson to beware of the first steps in vice. Had they not infused powders to make their master drunk, in order to gratify a barbarous, and disre spectful mirth, the idea of taking away his life by si milar means would not have occurred to them. They were convicted, and sentenced, on the 8th of Febru ary, to be hanged at the Cross of Edinburgh on the 1st of March, and their moveable goods to be forfeited.

1676

The trial of Kennedy, the apothecary's 'prentice, for furnishing the medicines, was brought on upon the 22d of February, 1676, and, after various adjournments, and a tedious confinement of eighteen months, he, on his own petition, on the 30th of July, 1677, was banished for life.

James Gray, Litster* in Dalkeith, for the Murder of Archibald Murray, Gentleman of his Majesty's Troop of Guards.

1678 THE prisoner, by profession a dyer, was a lieute

nant in the Duke of Lauderdale's regiment of Lothian militia. It happened that this corps, and the troop of guards to which the deceased belonged, were quartered at Glasgow. The prisoner was prosecuted at the instance of Sir William Murray of Newton, father to the deceased. The indictment set forth, that the prisoner and the deceased, in company with some others, were drinking in the house of James Brown, bookseller in Glasgow. The deceased retired, the prisoner followed, and, conceiv ing deadly malice against him, killed him with a small sword.

Mr. John Ellies appeared as counsel for the prisoner. He said that, deadly malice being charged against

* Dyer.

4

Rec. of Just. 10th June, 1678.
vol. I. p. 1.

Fountainhall's Decisions,

the prisoner, it was incumbent on the pursuer to 1678 prove that quality in the indictment. That, if any homicide was committed, which, however, he denied, it was done in self-defence. The prisoner and the deceased had no previous quarrel; they had not even the most distant acquaintance till the night on which the deceased expired; and the inferior station of the prisoner made it presumable that the deceased was the aggressor. He offered to prove, that the prisoner had received provoking language from the deceased: that, after the death, the prisoner, far from denoting guilt by flight, came back to the company, and sat with them for two hours; and that another person was present at the scuffle, with a drawn sword, by whom the wound might be given. He insisted, that jurymen were unfit judges to determine upon circumstantial evidence: that the Privy Council were wont, in matters of this sort, to take previous cognition; and they did so, particularly in the case of Thomas Menzies; and he prayed the Lords of Justiciary to make previous inquiry into the circum

stances.

Sir Robert Sinclair, counsel for the pursuer, answered, that it being libelled that the prisoner did kill the deceased, was in itself relevant, if proved to convict the prisoner, without any proof of malice, that being no necessary qualification of the libel, but the words of stile.' And in our law there is no difference as to the crime, or the punishment of death, and confiscation of moveables, whether the killing proceeded from malice preconceived, or upon sudden rencounter or chaudmell; for a slaughter being committed, it must be presumed to be done out of malice: that,

1678 as to drawing a conclusion of self-defence from the w circumstances of this case, these circumstances were

altogether frivolous; for, although the act 1661, chap. 22. sustained the plea of self-defence, yet it could only be admitted salvo moderamine inculpatae tutelae.

Mr. Ellies, in his reply for the prisoner, persisted that a jury was very unfit to judge on a circumstantial proof, and requested the Lords to appoint a precognition to be taken.

The Lords found the indictment relevant, and that there was no necessity to lead a separate proof to establish forethought malice.

The following circumstance gave rise to the quarrel: The parties being heated with wine, the quarrel arose from the prisoner's saying, That a lieutenant 'to the Duke of Lauderdale was as good as to ride ' in the King's guard.' On this the deceased stormed, called the prisoner base fellow, to compare himself with gentlemen, and gave him the lie.

THE PROOF.

George Murray, gentleman of his Majesty's troop of guards, deposed, he was drinking in the house of James Brown, in company with the prisoner, the deceased, and others. The deceased gave the pri soner the lie. Within half an hour thereafter, the prisoner and the deceased left the room, and the deponent sent one Thomas Hamilton to enquire after them. Instantly Hamilton and the prisoner returned, and the prisoner, wiping his sword, said, He had given him it!