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E. T. 1848. v. Murrow (a); Rex v. Sheard (6); Rex v. Beckett (c); Rex v. Queen's Bench.
Withers (d); Rex v. Harris (e). The i Vic. c. 85, makes a fur
ther classification of these intents ; the 2nd section specifies a THE QUEEN. number of acts committed with intent to commit murder, and
subjects the party convicted of them to the punishment of death ; but the offence here is within the 3rd section, and the punishment specified for the acts mentioned in the 3rd section is transportation only. A charge of shooting with intent to murder is not within the 2nd section, unless it aver an injury was inflicted dangerous to life. The Court will construe this Act strictly in favorem vitæ, and will not by any equity bring a man within the statute if he do not come within the words of it: Rex v. Ellis (f). A gun-shot wound, unless it be dangerous to life, does not come within the terms of the 2nd section, for that section does not speak of shooting; but a wounding of that description is expressly provided for by the terms of the 3rd section, for it says, whoever shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person with intent to commit the crime of murder, shall, although no bodily injury be effected, be guilty of felony and liable to transportation; that clearly refers to all cases of shooting, whether bodily injury be effected or not. The meaning of the word “wound” is the same in all the statutes : Rex v. Jennings (9); Rex v. Cadman (h). The words “bodily injury,” in the 2nd section, must be taken to override the whole section: Regina v. Cruise (i).
The second error, as to the misjoinder of counts, we do not press, but the third relied on is, that the discharge of the jury from a finding on the other counts was erroneous. In civil cases the rule is, that a Judge cannot discharge a jury from finding on any of the issues joined without the consent of the parties, unless from the findings on some issues a verdict on the other issues would be wholly (a) 1 M. C. C. 456.
(6) 2 M.C. C. 13. (c) 1 M. & Rob. 526.
(d) i M. C. C. 294. (e) 7 C. & P. 446.
( 5 B. & C. 395. (g) 2 Lewin, C. C. 132.
(h) 1 M. C. C. 114. (8) 8 C. & P.541.
immaterial: Powell v. Sonnett (a); Cossey v. Diggons (6); Edge E. T. 1848. v. Wandesford (c); Tinkler v. Rowland (d). Here it cannot be said to
, Queen's Bench. that any of the findings are immaterial. The jury ought not to be discharged without lawful cause; and there is no allegation here upon THE QUEEN. the record to show any necessity for discharging the jury from these issues, or is there stated the occurrence of any fatality: Conway v. The Queen (@). It makes no difference what the findings would have been, or whether the error be material to the prisoners or not: Beecher's case ($).—[MOORE, J. I do not see how any error on the other counts can vitiate a proper judgment upon the first count.]—The Court is to review the whole proceeding, and if there be error on the record in any part of it, the prisoners are to have the benefit of it. Every part of the record ought to have been brought to a legal conclusion : Regina v. Downing and Powis (g); Rex v. Hayes (h); that case shows that no judgment could be given until the record was complete. O'Connell v. The Queen (i). Suppose the prisoner was punished on the first count, he has a right to a finding on the other counts, to plead autrefois acquit or autrefois convict. If there were a pardon granted for the offence on the first count, he might be tried again upon the other counts on which no findings were entered.
Griffith, Corballis and The Attorney-General (Monahan) for the Crown.
This case comes within the words of the 2nd section. All the offences there charged are distinct offences. It is immaterial by what instrument the wound be inflicted : Rex v. Payne (k).
The case of Fogarty v. The Queen (1) is directly in point. The addition of the statement that an injury dangerous to life had been inflicted is quite unnecessary. The word “wound" has received a
E. T. 1848. legal definition ; there must be a breaking of the skin to constitute Queen's Bench.
a wound, and if done by any instrument it is a wound : Russell
on Crimes, p. 729. The words “ bodily injury dangerous to life" THE QUEEN. apply to the words immediately preceding, “ by any other means,"
for there may be injuries dangerous to life without cutting, stabbing or wounding; you could not apply the words “ bodily injury dangerous to life” to the words "cutting, stabbing or wounding” without violating the grammatical meaning; and a bodily injury might be inflicted without any wound or abrasion of the skin, and these words are introduced to meet such a case.
As to the second objection. There was no error in the discharge of the jury, for the prisoner is not injured by it; it was not necessary that there should be a finding upon all the counts of the indictment. The Crown might have entered a nolle prosequi upon the other counts.—[PERRIN, J. I doubt if the Crown could enter a nolle prosequi after the case was sent to the jury.]— Regina v. O'Connell (a); Rex v. Butterworth (6); Regina v. Jones (c). The extreme punishment of the law being imposed for the offence on the first count, it becomes unnecessary when there is a verdict of guilty to do any thing with the other counts, as no further execution could be had upon them.
Cur, ad. vult.
BLACKBURNE, C. J.
These are writs of error, to reverse the judgments pronounced against the prisoners, who were indicted and found guilty of a capital offence before me, at the last Assizes of Tullamore.
The conviction and judgment were on the first count of the indictment, which charged the prisoner Shea with feloniously discharging a gun at and wounding Stephen Dobbyn, with intent to murder him, the prisoner Dwyer being present aiding and abetting. This count was founded on the 2nd section of 7 W. 4, and i Vic. c. 85. There were eight other counts, by some of which the prisoners are charged capitally, and in others of them with felonies (a) 7 Ir. Law Rep. 336.
(6) R. & R. C. C. 520. (c) 8 C. & P.777.
transportable, but all under the provisions of the same statute. E. T. 1848.
Queen's Bench. The jury found the prisoners guilty on the first count, whereupon
SHEA they were discharged from giving any verdict on the issues joined on all the other counts, and the Court pronounced judgment on the THE QUEEN. first count, which judgment we are now called on to reverse.
The objections which have been relied on are—first, that the judgment of death is not warranted by the matters stated in the first count of the indictment; and secondly, that the judgment is erroneous, by reason of the discharge of the jury from the issues on the other counts.
The first objection is rested on the argument, that wounding with fire-arms with the intent to murder is not within the meaning of the 2nd section of the Act, and that it should have been averred, which it is not in the first count, that the wound was dangerous to life. We think that this averment was not necessary, and that it is obvious, from the plain intent, as it is from the grammatical construction of this section, that to stab, cut or wound with intent to murder, though the stabbing, wounding, or cutting, was not dangerous to life, is a capital offence under this section. The words which follow, “ by any means cause to any person any bodily injury dangerous to life,” are plainly meant to designate cases in which, though there may not be stabbing, cutting or wounding of the person, such bodily injury is inflicted as to be dangerous to life. This is the construction which this Court gave to the statute in the case of The Queen v. Fogarty. The indictment there contained two counts ; the first was the same as the first count of the present indictment ; it stated a wounding by fire-arms with intent to murder ; the second count stated an assault by certain means to cause a bodily injury dangerous to life, to wit, by discharging fire-arms at and wounding with a bullet with intent to murder. On each of these counts there was a verdict, and on each judgment, and sentence of death. The error assigned and argued as here was, that the first count warranted only sentence of transportation, because it omitted to state that the injury was dangerous to life, and that therefore this count only stated matter which warranted a conviction under the 3rd section of the
E. T. 1848. Act. To this the Attorney-General replied, that the first count was Queen's Bench.
in the very words of the statute ; and the Court acceded to this view
of the case, holding, as I have before said, that where a wound is THE QUEEN. inflicted by any instrument with intent to murder, the crime is com
plete, even though the injury be not dangerous to life. That case therefore rules the first cause of error. I shall only add, that the argument of the prisoners' Counsel, that wounding by fire-arms is not such a wounding as is meant by the part of the 2nd section I have been considering, and that the wound must be made by an instrument ejusdem generis as that by which stabbing or cutting may be inflicted, is completely answered by the authority of the case of The King v. Briggs (a). Inthat case the indictment stated the wounding to have been by striking with a stick, and kicking, with intent to do harm. The words of the section on which it was founded were, “stab, cut, or wound ;” and all the Judges were of opinion that the means by which the wound was inflicted need not have been stated, and, though stated, did not confine the Crown to prove those very means, and might have been rejected as surplusage; so that it is manifest that if the wound be inflicted with any kind of instrument, with the intent to murder, the crime is committed.
The second objection is one for which, as a cause of error, there is no authority, and for which it is not easy to find a reason. The first count is sufficient in law; there is a good finding upon it, and a sentence warranted by law. But, notwithstanding, it is contended that the judgment should be reversed because there were eight issues on other counts from which the jury was discharged. I cannot feel the force of the arguments that assert that this vitiates the judgment; they do not impugn the legality of the process, the validity of the finding of the jury, the sufficiency of the indictment, or the propriety of the sentence. These are the respects in which, generally, at least, error is assignable. The objection is merely rested on this, that no precedent has been found of a judgment made up as this is, showing that the jury has been discharged from finding on some of the issues, and that this discharge may, in cases that have been supposed, work an injury to the prisoners. To decide whether these objections be of any intrinsic value, and whether they constitute
(a) 1 M. C.C. 318.