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Tagc 742. Lee and Costen were indicted for the murder of S. J. Hill. Hill was at

a public-house where the prisoners were, and showed some money, and
left to go home ; the prisoners followed him. Lee first came up to Hill
and pushed him through a hedge, so that he fell down a bank five feet
high. Lee jumped down after him, and tried to rob him, but he re-
sisted, and Lee called out to Costen to come and help him ; Costen then
went and helped to force the purse out of Hill's hand. It was not
clearly proved what was the precise degree of violence used, as Hill said
that he was so shaken with his fall that he hardly knew ; but they both
used some violence to force the money from him. Pollock, C. B., told
the jury 'that if two or more persons go out to commit a felony, with
intent that personal violence shall be used in its committal, and such
violence is used and causes death, then they are all guilty of murder,
even although death was not intended.' . . . . ' It is for you to consider
whether there was any such joint design here, or, if not, whether Costen
was party to such violence as tended in this case to cause death. If not
you must acquit him, and I think there is no such evidence.' Reg. v.
Lee, 4 F. & F. 63.

Page 74C. On a trial for murder it appeared that a dispute had arisen between

the deceased and Turner, who called the deceased a liar. The deceased
then struck Turner, on which Staple took oft' his coat to fight, but the
police prevented it, and the deceased left to go home; after a few
minute's Turner and Staple followed him, and the police went after
them, and just before they came up they heard a cry 'Get up,' and
on coming up found the ( !< ceased lying on the road, one of the prisoners
having hold of his head, the other of his feet. The deceased died the
next day. The death was caused by an injury in the orbit of the eye,
which had fractured tiie frontal bone, and which might have been caused
by a blow from a blunt instrument or a kick from a heavy iron-shod
boot, such as the prisoners wore. It was urged that as it was not
I roved which prisoner inflicted the blow, and there was no evidence of
a common design to indict felonious violence, or to do more than commit
mi assault, neither prisoner could he convicted even of manslaughter.
Reg. v. Luck, 3 1'. & I'", is.'!. Channell, 15., agreed with the law laid
down in that case, and held that on a charge of murder there must be
evidence of a common design to kill or'inllict murderous violence; but



Addenda, Volume I. G59

on a charge of manslaughter, if several were proved to have been
parties to an unlawful act of violence, they are all guilty. Reg. v.
Turner, 4 F. & F. 339.

The word 'indictment ' in the 24 & 25 Vict. c. 100, s. 6, has been since Page 766.
held to include a coroner's inquisition. Reg. v. Ingham, 10 Law T.
456, B. R. 9 Cox, C. C. 508.

Where on an indictment for endeavouring to conceal the birth of a Page 779.
child the evidence went to show that the woman had been delivered in
the fourth or fifth month of her pregnancy, and that the foetus was
about the length of a man's finger, but had the shape of a child, and it
was objected, on the authority of Reg. v. Rerriman, 6 Cox, C. C. 388,
that this foetus was not within the statute ; Martin, B., overruled the
objection, stating that he saw nothing in the statute to limit the word
1 child ' to a child likely to live, but that as soon as the foetus had the
outward appearance of a child it was sufficient. Reg. v. Colmer, 9 Cox,
C. C. 506.

Where on an indictment for endeavouring to conceal the birth of her
child it was proved that, the prisoner appearing ill, her mistress sent for
a doctor, who asked the prisoner if she had been confined, and she said she
had been ; and the doctor asked her what she had done with the child, and
she said it was in a box in her bedroom, and he went to the room and
found the child in an open box, having the cover lifted ; Byles, J., told
the jury that ' there must be a secret disposition for the purpose of con-
cealing the birth. The concealment must be by a secret disposition of
the body, and a disposition could only be secret by placing it where it
was not likely to be found. Secrecy was the essence of the offence.
Could they say that an open box in the prisoner's bedroom was a secret
disposition ? It was for them to say, but in his opinion it was not.'
Reg. v. Sleep, 9 Cox, C. C. 559.

Major-General Hutchinson was commandant of the forces at the Page 864.
garrison of Plymouth. A target was placed in the Sound, under the
general directions of the Horse Guards, and the artillerymen were accus-
tomed to practise by firing at it with ball. One day while such practice
was. proceeding a ball missed the target, and, striking the waves, rico-
chetted and hit a boatman, who was taking a boat across the Sound in
the lawful and proper exercise of his vocation, and in a place where he
might lawfully be. Byles, J., after stating that the depositions were
extremely long and vague, so that he hardly knew in what shape the
charge would be presented, is said to have told the grand jury that
' manslaughter was when one man was killed by the culpable negligence
of another. A slight act of negligence was not sufficient — all men and
women were negligent at some time ; it would depend on the degree
of negligence. A slight deviation from proper care and skill was not
sufficient. By way of illustration : suppose a man were to fire a gun in
a field where he saw no one, and as he fired another man suddenly
raised his head from a ditch; he could not say that that man would be
guilty of manslaughter ; it would be held not to be culpable negligence.
[It is clear this would be no negligence at all. The case as put is of a man
lawfully shooting in a lawful place, where he had no reason to suppose
any other person was.] But supposing a man were to fire down the
High Street of Exeter because he saw no one, and some one was sud-
denly to appear, and he was killed, that would be culpable negligence in
the man who fired the gun. It would seem, and the results showed it,
that the boat was within the range of fire; but that was no defence.
If the man had not been killed, and had brought an action for damages,
or if his wife and family had brought an action, if he had in any degree
contributed to the result an action could not be maintained. But

u u 2



GGO Addenda, Volume I.

in a criminal case it was different. The Queen was the prosecutor,
and could be guilty of no negligence ; and if both the parties were
negligent, the survivor was guilty ; and therefore it was no defence
that the boat was within danger. He could only speculate upon the
negligence imputed in this case. First, he did not know that it would
be said that it was an improper place whether to fire from or to fire
over. The gun was tired from one of the batteries kept on purpose for
practice. It was said that this battery was too low; but that was not
the point of defence. Therefore, subject to their better judgment,
nothing could be imputed to the defendant as to the place whence the
gun was fired. Then as to the place over which it was fired. Had
the defendant the selection of it? Then in using the place, although
an improper one, was he obeying military orders ? If so, he would
not be guilty. [With all deference, this seems to be an error. The
commission of a felony can never be excused by the order of any
superior, except in cases where the circumstances are such as to warrant
the act that is done, as in case of rebellion, &c. In other cases the
law acknowledges no distinction between the soldier and the private
individual. See the charge of Tindal, C. J., p. 402 of Vol. I. note (7).
And the command of the master is no defence to the servant. See
Reg. v. James, 8 C. h P. 131, Vol. II. p. 1020. If the Horse Guards
gave an order to practise at a particular place, that order would only
justify practising in a careful and proper manner.] Common danger did
not make the place improper. He was a man performing a most im-
portant duty. Supposing, therefore, that the defendant had been per-
sonally engaged in the firing : if he thought that the place from which
the gun was fired was not improper, and that the place to which the
firing was directed was not improper, assisted by additional precautions,
which might be used, he would not be responsible, because acting under
the direction of superior authority. It seemed that complaints had
been made by a great many persons residing in Plyn outh and Devon-
port, and he must beg their attention to the orders the defendant had
given. The major-ge eral would impress up n the officers in com-
mand to tee with the utmost diligence that the range was free before
the firing. Then there was a second order. The major-general im-
presses upon the officers the necessity of seeing that all was free, as he
should hold them personally responsible. He had hitherto presumed
that the defendant had personally to do with the firing ; and, if he had,
he would not be guilty of manslaughter. But the next question was,
<li 1 he personally superintend the firing or did he not? They would
sic whether he did or not. Was he guilty of a breach of duty in not
pe.sonally superintending the firing ? He could not see that he wa-.
Again, it might be said, that if he issued orders it was his duty to see
that proper persons w T ere appointed to keep a proper look-' ut ; and if
proper persons were nominated by him, it did not appear whether they
were properly di ciplined, and it might be a question whether there WOfl
any negligence in them. There were persons with flags, but whether a
I roper look-out was kept might possibly be doubtful; whether means
were taken for keeping a proper look-out they would have to deter-
mine. Under tins:' circumstances it would be for them to say whether

negligenc '_:lit home to the defendant.' Reg. v. Hutchinson,

U Cox, C. C 555. This report is manifestly imperfect, and, as counsel
are nev< 1 , w hen the grand jury are charged, cannot be the report

of any barrister. The editor has inserted the parts between brackets.

S78. On an indictment for manslaughter against an engine-driver and

fireman of a railway, it appeared that by the general rules of the
company the fireman was always to follow the directions of the engine-
drivi r, but both of them had the duty of looking out, the engineinaii
being directed 10 attend to and act upon signals, the fireman obeying



Addenda^ Volume I. G01

his directions. There was a regular system of signals, in which a red
flag by day showed that the train must stop instantly. On Ascot race
day special instructions were issued, which materially differed from the
regular rules, and by them the red signal did not mean, as it usually did,
' Stop,' but only 'Danger,' and that meant that the engine should proceed
a\ ith caution. The rules prohibited engines from running tender fore-
most ; but there was no turn-table at Ascot, and the engines consequently
returned with their tenders foremost. The return trains were started
at irregular intervals of about five minutes by the station-master and
traffic manager at Ascot. One of them stopped at Egham, and about
five minutes afterwards another was started from Ascot. The prisoners,
who had charge of it, did not know that the preceding train would stop
at Egham; the stoppage delayed it two or three minutes; when the
prisoners' train passed the two stations before Egham the signal was
red. There was contradictory evidence as to the pace their train went ;
but, after passing the auxiliary signal before reaching Egham, the speed
was slackened. The prisoners' train, not having to stop at Egham, went
right through the station ; a minute or two afterwards the engineer saw
the preceding train, and tried to stop his train, but they did not succeed
in stopping the train before it ran into the other train, and caused the
death of several persons. Willes, J., held that in a criminal prosecution
an inferior officer must be held justified in obeying the directions of a
superior not obviously improper or contrary to law ; that is, if an in-
ferior officer acted honestly upon what he might not unreasonably deem
to be the effect of the orders of his superior, he would not be guilty of
culpable negligence, these orders not appearing to him, at the time, to
be improper or contrary to law. It appeared that the prisoners had
nothing to do with the general management or regulation of the traffic,
and their duty was to obey the special instructions issued to them as
well as they could, presuming there was no apparent illegality in them ;
and in that case, provided they put the best construction they could
upon them, and acted honestly in the belief that they were carrying
them out, they were not criminally responsible for the result. In a civil
ease they might be responsible, but not criminally. As to the fireman,
as he was bound to follow the direction of the engineman, there was no
case. The jury then interposed, and said that they were all of opinion
that there was no case of culpable negligence against either of the
prisoners. Willes, J., said he was quite of the same opinion, and thought
that the prisoners ought not to be convicted on a criminal charge. They
had instructions of an unusual kind, and were doing their best at the
time to prevent an accident ; that is, they were trying to put on the
break so near to the time when, according to any view, they could be
expected to have done so, that they can hardly be deemed guilty of
culpable negligence. They only saw a red signal, and that, according
to their special instructions, did not mean ' Stop.' There was no symptom
of danger ; they did not know that the other train had stopped at
Egham, and they had no instructions to do so ; and so they went right
on, although a minute afterwards they did their best to stop the train.
The arrangement was such as could not but cause imminent clanger of
the second train running into the first, which had passed only five or
six minutes before, and had stopped three minutes at Egham. He
therefore concurred in the verdict. In the course of the case, Willes, J.,
also held that a witness could not be asked to give an explanation as to
his construction of the effect of the rules. The rules were in writing,
and must speak for themselves, and the judge must declare their mean-
ing. The special rules, if not consistent with the general rules, must
override them, but their construction was for the judge. And that an
officer of the Board of Trade could not be asked his opinion on the
mode of conducting the traffic (which rather affected the company than
the prisoners), nor whether in his judgment, as a man of experience, the



662 Addenda, Volume I.

driver of the engine ought to be convicted of negligence, nor (it seems)
■whether, in his opinion, the driver had kept a sufficient look-out ahead;
but that he might be asked whether, supposing the train was going
about forty miles an hour, it could have been stopped. Reg. v. Trainer,
4 F. & F. 105.

Page 899. In order to bring a case within the 24 & 25 Vict. c. 100 ; s. 59, it is

not necessary that the intention of using the noxious substance should
exist in the mind of any other person than the person supplying it. The
prisoner was indicted for supplying savin, knowing that it was intended
to he unlawfully used to procure a miscarriage, and it was contended
that there was no case against him, because it was necessary that he
should know that the savin was intended to be used with intent to
procure the miscarriage, whereas it was not intended, except by the
prisoner himself, to be so used; the jury found that the case was in
other respects proved, but that the prosecutrix did not intend to take
the savin, nor did any other person, except the prisoner, intend that she
should take it ; but, upon a ease reserved, it was held that the intention
of any other person than the prisoner was not necessary to the com-
mission of the offence. The statute is directed against the supplying of
any substance with the intention that it shall be employed in procuring
abortion. The prisoner, in this case, supplied the substance, and in-
tended that it should be employed to procure abortion. He knew of his
own intention that it should be so employed, and is therefore within the
words of the statute. He is also within the mischief of the statute, and
was rightly convicted. Reg. v. Hillman, L. & C. 343.

Page 901. The thing supplied with intent to procure abortion must be noxious

in its nature. Where, therefore, an indictment charged the prisoner
with supplying a certain noxious thing with intent to procure abortion,
and a surgeon proved that the liquid was some vegetable decoction of a
harmless character, and such as would not procure a miscarriage ; but
if taken with the belief that it would produce it, it might, by acting on
the imagination, produce that effect ; it was held that this liquid was not
within the clause, although the woman proved that, after taking a wine-
glassful, she felt dizzy in the head when she went to bed, and felt
stupid in the head the next morning. Reg. v. Isaacs, L. & C. 220.

Page 934. Where the jury convicted the defendant on a count, which alleged

that he unlawfully and indecently did make an assault upon a girl, who
appeared to be between ten and twelve years of age at the time, and the
jury found that the girl consented to the acts with which the defendant
was charged ; it was held, on a case reserved, that the conviction could
not be supported, as the having connection with a girl of that age was
not an offence at common law ; and Reg. v. Martin, &c, were considered
as binding authorities. Reg. v. Johnson, 10 Cox, C. C. 114. L. & C. 632.

Page 955. An indictment charged that F. Burrell fraudulently allured, took

away, and detained Jane Burrell out of the possession of her mother and
"\\ . S. Ilyder, he then having the lawful care and charge of her, she
being under the age of twenty-one years, and having a present legal
interest in real estates, with intent to marry, &c, and II. R. Burrell was
charged with feloniously aiding, &c, to commit the felony. The pri-
soners wen; paternal uncles of Jane Burrell, who was sixteen years old,
and entitled to real estates of the value of 50/. a year. Her mother had
first married the brother of the prisoners, and after his death she had
married W. S. Hyder. Jane Lived with her mother and stepfather till
she went to school in January, 1862, where she remained till August,
1862, when she returned to her mother's, and in October she went to
.■mother school, whence she returned to her mother's on December 20, in
the afternoon; .she stayed half an hour, and then left the house alone. ■



Addenda, Volume I. (563

About nine o'clock that evening she return* d, and stayed till ten, when
she again left without her mother's knowledge or consent. She re-
turned the next morning, and stayed with her mother about two hours,
and then went away without her mother knowing whither. In fact, she
went to the house of her uncle, II. R. Burrell, and she continued there
till January 19, 1863. She continued to pay visits to her mother for
an hour or two nearly every day till the 19th of January. In the
interval between her coming home from the first and her going to the
second school, it had been arranged, at her own desire, in consequence
of her not living happily with her stepfather and mother, that she
should live with her mother's mother and brother. When she came
back for the Christmas holidays, she wished to remain with her mother,
but the latter insisted on her abiding by her own choice to go to her
grandmother's for the holidays, and would not consent to her staying
with her at her stepfather's house. On this she went to the house of
H. R. Burrell. Her mother, as soon as she discovered that her daughter
was there, desired her to come to her house, and refused to let her have
her clothes unless she did so. On the 19th of January F. Burrell and
Jane Burrell left together by railway, and were married the next day at
PI u instead. These occurrences took place under such circumstances as
fully warranted the jury in finding that Jane Burrell was allured and
taken away by F. Burrell, with intent to marry her, and that II. R.
Burrell aided in the committing of this act. It was objected — 1, that
there was no evidence that F. Burrell had fraudulently allured away
Jane Burrell ; 2, that there was no evidence that she was taken out
of the possession of her mother ; 3, that the indictment charged that
she was taken out of the possession of her mother and W. S. Ilyder, he
having then the lawful charge of her, and that it was necessary to prove
that she was in his possession as thus alleged, as well as of her mother ;
but the only proof was that the guardianship of her person and copyhold
estate had been granted to him when she was admitted as tenant of her
copyhold estate. Upon a case reserved it was urged — 1, that there was
no fraudulent alluring away, and that the mere alluring away was not
sufficient ; 2, there was no evidence that she. was taken out of the
possession of her mother; 3, that the stepfather had not the lawful
care of the girl ; he had no general guardianship of her person. In
llatcliff's case, 3 Rep. 396, it was held that the consent of the stepfather
was wholly immaterial ; but here the indictment alleged the stepfather
to have the lawful custody. [Pollock, C. B., ' We are all of opinion
that the indictment would be supported by showing that the girl was
taken out of the possession and against the will of the mother. The
rest might be struck out as surplusage.'] For the Crown it was urged,
1, that in this case the statute did not require any evidence of fraud,
but, if it did, there was sufficient evidence of fraud; 2, the girl was in
the possession of the mother ; she had never abandoned the possession,
and the mere right of possession was sufficient. Pollock, C. B., ' The
court is divided in opinion on the facts of the case. The opinion of the
majority is that the facts do not bear out the prosecution, or, in other
words, that the crime has not been established against the prisoners.
There is no difference of opinion as to the law of the case.' Reg. v.
Burrell, L. & C. 354.

On an indictment for taking A. Pollard, a girl under sixteen, out of p a ge 955.
the possession of her father, it appeared that the prisoner lived near
them, and had known her a considerable time. Six months previously
the father, hearing that the girl went to the prisoner's house, remon-
strated with him for encouraging her to go there; the prisoner replied
that he did not want girls for the purpose of intercourse, as he was old
and under medical treatment. One Sunday she left her father's house
to go, as she said, to the Sunday school, but did not return. In fact, she



664 Addenda, Volume I.

went to the prisoner's house, and was found there a month afterwards.
A youth proved that the prisoner had told him to bring that young girl
if he could. lie had told a policeman that he had the girl to do his
work, as he had no servant. The girl stated that she had for two years
been in the habit of going to his house occasionally, and that he had
tried to persuade her to come and live with him, and had promised her
a new dress if she came, and that when she came he promised to
provide for her in his will, and persuaded her to sleep with him.
Pollock, C. B., directed the jury that if they believed that the prisoner
by promises or persuasion enticed the girl away from her father, and so
got her out of his possession, and into his own, they should find him
guilty, otherwise if she came without any such previous inducement
or enticement. Reg. v. Robb, 4 F. & F. 59.

Page 969. The 32 Hen. 8, c. 16, s. 9, is repealed by the 26 & 27 Vict. c. 125.

This repeal is extremely to be regretted, as no one can foresee how
many points may be raised in consequence of it. There is no doubt
that the clause was introduced to do away with questions which had
previously arisen. See the Year Book, 13 Edw. 4, p. 9, pi. 5, as to
some of such questions.

Ta^c 973. -A- n att empt to commit suicide is not an attempt to commit murder

within the 24 & 25 Vict. c. 100, s. 15, and remains a common law mis-
demeanor triable at sessions. Reg. v. Burgess, L. & C. 258.

Page 1003. The prisoner was indicted for shooting at H. Lawton with intent to

do him grievous bodily harm. The prisoner had been assaulted and



Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 3) → online text (page 110 of 146)