The Queen v. Coney, C.C.R. by the qualification he introduced. Quoting words attributed to Mr. Justice Littledale, he, in substance, told the jury that staying at the place was of itself encouragement, and that the mere fact of being present was sufficient to justify a conviction. I cannot believe that the learned Judge, Mr. Justice Littledale, has been accurately reported in this respect; but, if he has been, with great respect for so learned a Judge, I cannot concur in his ruling. The mere staying at the place where a fight is going on is not necessarily encouragement. The detective sent to report what is taking place, and to bring the offenders to justice, cannot be said to be encouraging what is going on; a person casually passing, but who stays to see what happens, and interferes to prevent, or retires in disgust, or is hemmed in so that he cannot retire, cannot be said to be encouraging; the witness mentioned in the fourth paragraph of the case could not be said to be encouraging; yet all of these were present and stayed at the place within the words of the learned Judge. The question of what amounts to encouraging must be a question of fact in each case for the jury, and cannot be one of law. The finding of the jury was, in fact, one of not guilty. They bow with respect to the chairman's direction in point of law; but, by adding that the prisoners were not aiding and abetting, I conclude that they intended to convey that by no act of theirs were they countenancing or encouraging the fighta conclusion fully supported by the evidence in the case.

MANISTY, J.-I am of opinion that this conviction cannot be sustained. I see no evidence that the fight was a prize fight. In the absence of evidence to the contrary it must be taken to have been an ordinary hostile fight between two angry men, each of whom committed a series of assaults on the other. But whether it was a prize fight or an ordinary fight is, in my opinion, immaterial, seeing that all persons who, being present at a fight, encourage it, are guilty of an assault. In the case of a misdemeanour, all who take part in it are principals, there are no accessories in the technical sense of that term-The Queen

v. Greenwood (26). Such being the law, the first question which arises is, whether there was any evidence to go to the jury against the three prisoners, or any of them. All that was proved was, that each of them was seen in the crowd, that they were neither speaking nor doing anything; and as to Coney, that he was so hemmed in as to render it impossible for him to push his way out. I very much doubt whether there was any evidence proper to be left to the jury as against any one of the three prisoners. But, assuming that there was, it remains to be considered whether the direction given to the jury was correct in point of law. The direction was, that "if the prisoners were not casually passing by, but stayed at the place, they encouraged the fight by their presence, although they did not say or do anything." The jury understood, and, as it seems to me, rightly understood, the direction to be that, if the prisoners merely stayed at the place, they, as a matter of law, encouraged the fight by their presence, and they found the prisoners guilty of an assault, adding that they did so in consequence of the chairman's direction of law, though they found that the prisoners were not aiding or abetting. I am of opinion that the direction was erroneous in point of law. If there was any evidence to go to the jury, it raised a question of fact for them- namely, whether the prisoners or any of them by their presence encouraged the fight. No such question was left to the jury, consequently the conviction cannot stand. The only authority in support of the direction that I know of is to be found in the summing up of Mr. Justice Littledale in the case of The King v. Murphy (1). No doubt that learned and accurate Judge is reported to have used the very expressions which the chairman in the present case adopted and repeated to the jury. Whether the learned Judge, Mr. Justice Littledale, did direct the jury as he is reported to have done may, I think, well admit of doubt. If he did, I think the direction was erroneous. It is said that, if the ruling of the chairman is not upheld, a great impetus will be given.

(26) 21 Law J. Rep. M.C. 127.

To

The Queen v. Coney, C.C.R. to prize fighting. I do not share in that apprehension. It is well-settled law that every person who, by his presence or otherwise, encourages a fight, be it a prize or an ordinary fight, is guilty of a criminal offence that is to say, of an assault, or manslaughter, as the case may be; but it is for the jury in each particular case to say as a matter of fact whether the accused did, by his presence or otherwise, encourage the combatants to fight. hold the contrary would, in my opinion, be erroneous in point of law, and very injurious in its consequences. Suppose the tight in question had resulted in the death of one of the combatants, then, if the direction given to the jury was right, every person who was in the crowd was in point of law guilty of manslaughter, though he neither spoke nor did anything, and notwithstanding that in the opinion of the jury he neither aided nor abetted the combatants. I cannot believe such is the law of England. For these reasons, I answer the question submitted to the Court in the negative. If it were necessary to do so, I should be prepared to go further, and hold that the special finding of the jury amounted to a verdict of acquittal. This point is, it is true, not submitted to us by the chairman, but if the Court sees upon the face of the case stated that the conviction is wrong it is their duty to take notice of it.

POLLOCK, B.-In my judgment this conviction should stand. The question stated for the opinion of the Court properly raises that which alone is open for our determination, and the answer to it should I think be, that the direction to the jury was correct. There was ample evidence from which the jury could find, as in effect they did, that what took place between Burke and Mitchell amounted to a prize fight; and this being so, there is clear authority for the direction of the chairman that prize fights are illegal-The King v. Bellingham (12), The King v. Perkins (4) and The King v. Hargrave (23); see also Hale's Pleas of the Crown, ch. 39.

When once this is established, the only remaining question is whether, looking at the evidence as it affected the three prisoners Coney, Gilliam and Tully, it was sufficient

VOL. 51.-M.C.

to support the direction of the chairman, and if so, whether that direction was right in law. In dealing with the evidence as it affects the three prisoners, we must look first at paragraph 4 of the case, to see what was the real character of the fight, as bearing upon the conduct of those who were present, though not taking any active part in it, and the inference to be drawn from such conduct. The facts here set out-the ring of cord, the four blue posts, the six persons within the ring besides the combatants, and the fighting by those two combatants stripped for three-quarters of an hour-all point to a condition of things which would denote to those present and looking on, even if they had not gone to see a fight, that a real fight was taking place. As to the evidence affec ing the prisoners, it amounts to this-that there was a crowd surrounding the ring, and that they were in it, and further, as to Coney, that the crowd was so closely packed that he was hemmed in, and could not push his way out. Before I deal with the direction of the chairman which relates to the legal effect to be given to the presence of the prisoners in this particular case, I must notice what appears to me to be the true ground upon which the decisions of Judges have been based, when they have ruled that those who remain and look on whilst a fight is going on encourage it by their presence, and are guilty of an illegal act; and also the wide distinction which exists between the case of persons standing by to witness a prize fight, and that of persons standing by and witnessing an attack by a mob, the setting fire to a building, or any other illegal act of violence, such as was referred to in the course of the argument. With reference to this part of the case, we ought not, when considering what is the true character of an act, to lay aside all knowledge of human nature, and all experience of the habits of mankind. These appear to me to be the basis of, and necessarily to be interwoven with, and form a part of, all law, whether criminal or otherwise; and when I look at the case in this light, I see no true analogy between a crowd of persons voluntarily collected round a fight, and those who in a public street, or elsewhere, are present whilst an illegal act

M

The Queen v. Coney, C.C.R. (the sight of which in itself cannot reasonably be supposed to give pleasure to any one) is going on. In the one case it is usually the bystanders collected around who create and are responsible for the fight, as a matter of interest and amusement to themselves. In the other, unless there be some overt act, by gesture or word, which denotes assistance or encouragement, it would be contrary to all reason to infer that the bystanders were taking any part in the illegal act. Again, when a fight takes place, but two can fight, and but some half dozen can assist the combatants; it is, however, almost of the very essence of the thing that a large number should be present as mere spectators, who could not consistently with the object of the whole proceeding actively interfere. On the contrary, where other acts of violence take place, it is to say the least more probable that those who intend to encourage them will not remain mere passive spectators, but will in some measure take an active part. In his summing-up to the jury in the present case, acting upon the principle and the ruling to which I have already referred, the chairman, after telling the jury that they were to determine whether or not this was a prize fight, directed them with reference to the three prisoners that "all persons who go to a prize fight to see the combatants strike each other, and who are present when they do so, are in point of law guilty of an assault." He added also, from the summing-up of Mr. Justice Littledale in The King v. Murphy (1): "If they were not casually passing by, but stayed at the place, they encouraged it by their presence, although they did not do or say anything." In my view of the law, this correctly laid it down as applicable to the particular case in hand. No doubt it did not exhaust the subject or deal with all the possible cases, or all the suppositious cases which were put during the argument before us. It was said that instances might occur of persons being present at a fight such as this, or even at this fight, who yet would not be doing an illegal act. Thus a weak man might be hemmed in by the crowd and so be present against his will; the father or mother of one of the combatants

This is

might be there to dissuade him if possible from entering upon or continuing the contest; a very short man might be at the outer edge of the crowd, and so unable either to see or to apprehend what was going on; and that these persons would not be guilty of an illegal act. quite true, but surely it has no bearing upon the facts proved here, nor could the chairman have alluded to such cases without travelling very wide from the facts proved, and distracting the minds of the jury from the question to be considered in the particular case. The chairman's own

direction is confined to "all persons who go to a prize fight to see the combatants." The quotation from Mr. Justice Littledale is not so accurate, because it may appear to affirm the proposition that all persons who stay at the place encourage the fight; but even as to this it states what I think is sound law, unless it be taken to include persons staying for some cause which makes it legal, or to include those curious and exceptional instances mentioned during the argument. Few propositions of law can be applied during a summing-up, even in criminal cases, so as to be sufficient and complete in omnibus; nor need they be, since the office of a summing-up is not to propound the law exhaustively, but to explain so much of it as relates to and is called for by the particular case which the jury have to try. It only remains to notice the verdict of the jury. They found the three prisoners guilty, but added that it was in consequence of the direction by the chairman of law, as they found that these prisoners were not aiding and abetting. This should be construed in such a manner as to make it reasonable and consistent, and it can be so construed. The jury by their verdict find that the three prisoners by their presence at the fight brought themselves within the chairman's definition of the offence with which they were charged, and thereby they must be taken to have disposed of the point raised in Coney's favour-namely, that he was hemmed in by the crowd. No doubt he was ultimately, but the jury may well have thought that he placed himself where he was voluntarily, and in order to secure a good position whence he could see the fight. No allusion is made in the case to

The Queen v. Coney, C.C.R. aiding and abetting, but, beside those fighting, there were several backers within the ring, and, as I accept the finding, I understand the jury to mean no more than that these prisoners were taking no active part in the fight. For these reasons it seems to me, agreeing as I do with the main propositions of law that have been stated by my learned brothers and commented upon, that this conviction ought to stand.

DENMAN, J.-The three defendants, Coney, Gilliam and Tully, were indicted for an assault. I think there was evidence upon which the jury might properly find that the two men Burke and Mitchell were engaged in an unlawful fight, and that they and their seconds were guilty of one or more assaults. But, as regards the defendants Coney, Gilliam and Tully, I find no facts stated shewing that they did anything to promote the unlawful fight, or the assaults committed; unless the mere fact of being found in the crowd surrounding the combatants is evidence of that kind. The utmost that can be gathered from the facts stated is, that they were for some appreciable time inactive spectators of an unlawful fight. The only question for us is, whether the direction of the chairman was correct. According to my view of that direction it amounted to telling the jury, as matter of law, that merely being found present in the crowd surrounding the combatants was not only evidence, but conclusive evidence, that the defendants were encouraging the combatants, and therefore guilty of the assaults committed by them. If I had been on the jury, I should so have understood the direction, and I think it is evident from the finding of the jury that they did so understand it. For the reasons given by my brother Hawkins in his judgment I entirely concur on both the points argued. I think this direction was wrong, and I therefore am of opinion that the conviction should be quashed.

LORD COLERIDGE, C.J.-The facts are clearly stated in the case submitted to us by the chairman of the Berkshire Quarter Sessions, and the question is whether his direction, which he sets out in words, can

in point of law be sustained. That is the question which, in form, the chairman has submitted to the Judges, and that is the only question which I propose to answer or to discuss. Two points were made in reference to the chairman's direction. As to the first, I conceive it to be established, beyond power of any argument, however ingenious, to raise a doubt, that, as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace. An individual cannot by such consent destroy the right of the Crown to protect the public and keep the peace. To the judgments of Mr. Justice Hawkins and Mr. Justice Cave, which I have had the advantage of reading on this point, both in their reasonings and their conclusions, I give my entire assent. The judgments of Mr.

I

Justice Mathew and Baron Pollock do not, I think, leave anything untouched on the second point, to which I now proceed. I agree with them entirely, and it is only because of the practical importance of the question that I do more than simply express my concurrence. proceed then to the second question which remains, whether persons other than the combatants who are voluntarily present at a prize fight, and who are there as spectators of the fight, are also, in point of law, guilty of an assault. I mean by the words "as spectators" persons who are present for the purpose only of seeing the fight; and I have stated the question thus because I believe that to be the question intended to be raised, and I think it is the question which is raised, in the case before us. It is not dealing fairly with the chairman, or with the jury, or even with ourselves, to suppose that a variety of questions so absurd that they are answered by mere statement were intended to be put to us when there is a real and important question put which is well worthy of consideration, and as to which, no doubt, there is room for conflicting opinion. I do not trouble myself, therefore, with the question whether the words used would cover the case of a policeman present and doing his best to prevent the

The Queen v. Coney, C.C.R. fight; of a man, policeman or not, present only to procure evidence of a breach of the peace which he is powerless to prevent; of a passer by on foot or in a carriage, who stays long enough to ascertain the character of the fight, and goes upon bis way; of some one on the outskirts of a crowd, curious as to the object of it, whose shortness of stature is not aided by any friendly tree. If ever these curious questions, or questions like them, should arise, it may be safely left to juries or to Judges to solve them sensibly. The question I am answering is this: When there is evidence uncontradicted that a man is a spectator of a prize fight-a spectator only, if you will, but a spectator in the sense I have defined, a person who goes to see or stays to see a fight, with no object but to see it does that evidence warrant a Judge in directing a jury that such evidence, if they believe it, proves that such a person is guilty as a principal in the misdemeanour? I am of opinion that such evidence does warrant a Judge in giving such a direction, and that it is for the prisoner to shew, if he can, that the legal inference from such evidence ought not to be drawn in his case. It is not denied that there are dicta-nay, decisions-of single Judges which entirely support the direction of the chairman. Indeed, his charge, as he repeats it to us, is made up of the words of Mr. Justice Patteson in The King v. Perkins (4) and Mr. Justice Littledale in The King v. Murphy (1). But it is said, and it is true, that these dicta or decisions are of single Judges only, and that in none of the cases were the facts exactly the same as the facts in the case before us. To the first objection, I reply that the criminal law is built up of the dicta of single Judges, and that I feel no inclination to examine critically and overrule a set of decisions which seem to me founded in good sense and conducive to the public good. Practical wisdom rather than scientific exactness seems to me to be the thing to aim at in a branch of the law which is concerned with the affairs of men generally speaking in their simplest and least complicated forms. In such a case as this the spectators really make the fight; without them, and in the absence of any one to look on and encourage, no two men,

having no cause of personal quarrel, would meet together, in solitude, to knock one another about for an hour or two. The brutalising effects of prize fights are chiefly due to the crowd who resort to them, and if I find Judges of great reputation saying in various phrases, and on various occasions, what Mr. Justice Littledale and Mr. Justice Patteson said in the cases I have mentioned, and that, in consequence, the voluntary spectators of a prize fight have been convicted of an assault, I will, if I can, affirm such a conviction, and uphold the authority of the Judges on whose decisions it is based. I reply to the second objection that it hardly ever happens that the circumstances of two cases are exactly the same, but the words of the Judges are general, and will include the case before us, and that I see no distinction in principle between the persons to whom the Judges applied their doctrine and the persons to whom it is sought to apply the doctrine here. If a surgeon who attends a duel to save if possible the lives therein imperilled attends it as a criminal, I can see no sort of reason why the spectator of a prize fight should not, if there be fair authority for the position, be held as guilty as the prize fighters themselves. It must be remembered that in all these cases of constructive assaults and constructive felonies we get beyond the region of actual fact into that of positive legal inference. A second in a duel, perhaps, does no physical act at all; a man who stands outside a house while his fellow burglar goes inside and is guilty of violence, does not, in actual fact, break and enter; yet such persons are wrongly or rightly held as guilty as the actual duellist or the actual burglar. The man who keeps the ropes, or goes round to collect contributions, no more really assaults any one than a mere spectator; but some of my learned brothers, at any rate, would hold that such men are properly to be held guilty of assault. Once granted that an actual physical participation in the assault is not necessary, it seems to me that there is no legal principle in distinguishing between one set of spectators and another, using the word spectator in the sense which I have above defined; and I protest, with all possible respect, against drawing a line