Series 1 > Records of the Proceedings of the Justiciary Court Edinburgh, 1661-1678 > Volume 2, 1669-1678

Interloquitor.
Verdict.
The Proof.
6 JUSTICIARY PROCEEDINGS [DEC. 1669
procurators do contend that this is not casus dubius. ffor the
Defence as its proponed and circumstantiate makes it appear
that Vulnus non erat lethale. ffor the definition of vulnus lethale
in Law is quando secundum regidas artis aid nullo modo potest
sanari aut ex communi sententia medicorum assistantium cum
maxima difficultate sanari potest, Bald us ad\. 1. § ult Dieg. ad
Sylen, and lest the life of man should be laid open to that
which is too arbitrary, the great marks that are given of this
lethall wounding are either qffixus lecto or otherwise (except
in the case of absolute necessity or a diserting from their bed
on the account of madness, and tho’ some particular persons
that are mortally wounded may be forced to run away as from
Battells, yet in the case where the person wounded never took
bed where she might have had the occasion, nor send neither
for Physicians, Ministers, nor her friends, tho she might have
also had the occasion of them, but on the contrary where she
went immediately abroad, travelled and wrought instantly as
she was of use to do before (all which is positively affirmed
and offered to be proven) and where so long a time likewise
interveened betwixt her receiving of the wound and her death
(which is more than to alledge upon a time per se). All these
concurring together are undoubtedly relevant in casu dubio
and much more in this case which is not dubious, but probable,
as appears from former circumstances to evince that the wound
was not mortall. And being so circumstantiate, the Pursuer1
should be preferred in the probation thereof to evince that
the wound was not mortall before the Pursuer who affirms it
to be mortall.
The Justices Repells the Defence and Duply proponed for
the Pannel in respect of the Dittay and Reply, and ffinds the
Dittay relevant, and ordains the same to pass to the knowledge
of an Assize.
The Assize finds the Pannel Guilty of the Slaughter lybelled,
and upon the 26 of ffeb. 1670 he is sentenced to be beheaded
at the Mercate Cross of Edinbr on the 10 of May next
thereafter.
The Probation of this Crime was be Witnesses. The first
1 ‘ Pannel ’ in Adv. MS.