1 1872 v. Ward. Metcalfe, for the prisoner. The indictment is under 24 & 25 Vict. c. 100, s. 18, which provides for the felony of wounding with THE QUEEN intent to do grievous bodily harm. Section 20, enacting that whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person shall be guilty of a misdemeanour, takes the place of the repealed 4th section of 14 & 15 Vict. c. 19. But s. 5 of the last-mentioned statute is still in operation. [COCKBURN, C.J. And, strange to say, was omitted from the Consolidated Act, 24 & 25 Vict. c. 100.] It enables the jury trying a prisoner upon an indictment for felonious wounding to acquit him of the felony, and find him guilty of the misdemeanour of unlawful wounding only. But if they do so they must find him guilty of unlawfully and maliciously wounding, although the word maliciously is not in s. 5. [COCKBURN, C.J. The wounding stated in the indictment minus the intent there charged?] Yes; the offence provided for by s. 4 of the same Act or the equivalent section of the recent statute. Secondly. Malice is essential, either actual or such as the law would imply. There must be an unlawful act done with intention to assault. If a man fired at another even from so great a distance that the shot would not reach him, still there would be an intention to hit him. But the prisoner did not aim at the prosecutor. [MARTIN, B. Is not careless firing which causes a wound sufficient?] It is not; and were death to ensue the person wounding would wounding, charged in such indictment, but are not satisfied that the defendant is guilty of the felony charged in such indictment, then and in every such case the jury may acquit the defendant of such felony, and find him guilty of unlawfully cutting, stabbing, or wounding, and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for the misdemeanour of cutting, stabbing, or wounding." VOL. I. 3 F 24 & 25 Vict. c. 100, s. 18, enacts that "whosoever shall unlawfully and maliciously wound any person with intent to do grievous bodily harm, shall be guilty of felony." Sect. 20 enacts that "whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm. upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour..." 4 v. WARD. 1872 be guilty of manslaughter, but not of murder, because he had no THE QUEEN malice. The question is whether "maliciously" means "intentionally." Suppose one to fire from his own land across a highway and to shoot a passer-by: although it is unlawful to fire on the highway, yet could it be said that the injury to the person was a malicious wounding? Or again, if a bonfire were made near a public road, which would be an illegal act, and the flame, blown by the wind, ignited a haystack, could the offender be convicted under 24 & 25 Vict. c. 97 of unlawfully and maliciously setting fire to the hay? BLACKBURN, J., referred to Reg. v. Child. (1)] The jury have found no intent to injure. "Malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse," per Littledale, J., in McPherson v. Daniels. (2) [BLACKBURN, J. I have always thought a man acts maliciously when he wilfully does that which he knows will injure another in person or property.] It will suffice for the present argument to treat the word "maliciously" as synonymous with "intentionally:" Reg. v. Noon (3); Reg. v. Sparrow. (4) Some meaning and effect must be given to the word. [MELLOR, J. Was there not malus animus in the prisoner who intended to frighten the prosecutor away?] He had no evil mind to wound. [COCKBURN, C.J. When a man does an act malicious of itself, but without intending larger consequences, are not the limitel results sufficient to make him responsible for all? To support an indictment for murder it is enough to prove that the act causing death was done maliciously, and it is not necessary to shew an intention to kill.] Then if this act of which the prisoner has been convicted had caused death, his offence would have been murder. Firing a gun to frighten was unlawful, but the wound not having been given intentionally the act was not malicious, and therefore not within the terms of the statute. [MELLOR, J. In the introduction to the Discourse of Homicide (1) Law Rep. 1 Cr. C. 307. (2) 10 B. & C. at p. 272. (3) 6 Cox, Cr. C. 137. by Foster, p. 257, we read that the legislature has frequently used 1872 v. the terms malice and maliciously in a general sense, "as denoting THE QUEEN a wicked, perverse, and incorrigible disposition."] No counsel appeared for the prosecution. COCKBURN, C.J. We have considered this case, and are all agreed that in construing s. 5 of 14 & 15 Vict. c. 19 we should read that section as though the term malicious had been introduced, and that it is an essential element in a conviction under that section that the act which caused the unlawful wounding should have been done maliciously as well as unlawfully. With respect to whether the facts of the present case as stated amount to proof of the necessary malice or not, the Court has been divided, twelve out of fifteen judges being of opinion that there was proof of malice. The conviction must, therefore, be affirmed. Conviction affirmed. Attorney for prisoner: Storey, for Chamberlain, Yarmouth. WARD. 362 CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN EASTER TERM, XXXV VICTORIA. 1872] April 27. THE QUEEN v. REEVE AND HANCOCK. Evidence-Confession-Admissibility. The prisoners, two children, one aged eight and the other a little older, were tried for attempting to obstruct a railway train. It was proved that, the mothers of the prisoners and a policeman being present, after they had been apprehended, the mother of one of the prisoners said: "You had better, as good boys, tell the truth;" whereupon both the prisoners confessed :— Held, that this confession was admissible in evidence against the prisoners. CASE stated by Byles, J. The prisoners were children. One was eight years of age and the other a little older. They were convicted at the Worcester Assizes of an attempt to commit a misdemeanour by obstructing a railway train. The evidence was, that Hancock's mother, Reeve's mother, and a policeman being present, after they had been apprehended on suspicion, Mrs. Hancock said, "You had better, as good boys, tell the truth;" whereupon both the prisoners confessed, and on this confession were both convicted. The question for the opinion of the Court was, whether the confession was admissible against both the prisoners, or either. No counsel appeared for the prisoners. F. T. Streeten, for the prosecution, cited Reg. v. Jarvis. (1) He was stopped by the Court. (1) Ante, p. 96. KELLY, C.B. We need not hear you further. The cases had 1872 V. REEVE. no doubt at one time gone a great deal too far in the exclusion of THE QUEEN such evidence as that now in question. But the case cited is binding upon us; and it is a much stronger case than the present. WILLES, J. I am of the same opinion. It seems to have been supposed, at one time, that saying "Tell the truth" meant, in effect, "Tell a lie." CLEASBY, B., GROVE, and QUAIN, JJ., concurred. Conviction affirmed. Attorneys for prosecution: Young, Maples, & Co. THE QUEEN v. WILLIS. Penal Fervitude-Previous Conviction of Filony not charged in Indictment— 27 & 28 Vict. c. 47, s. 2. By 27 & 28 Vict. c. 47, s. 2, “Where any person shall on indictment be convicted of any crime or offence punishable with penal servitude, after having been previously convicted of felony, the least sentence of penal servitude that can be awarded in such case shall be a period of seven years." The prisoner was convicted of a crime punishable with penal servitude, and it was proved that he had been previously convicted of felony; but the previous conviction was not stated in the indictment : Ileld, that the above section did not apply. CASE stated by Bramwell, B. This case was tried at the last assizes for the city of Exeter. It was an indictment for wounding with intent to do grievous bodily harm, and the prisoner was found guilty of unlawfully wounding. It was proved, though not stated in the indictment, that he had been before convicted of felony. Indeed he had been three times so convicted, and sentenced on cach occasion to long periods of transportation. The case was a very bad one, and the learned judge sentenced him to seven years' penal servitude, which was not more than an adequate sentence. If he sentenced him to penal servitude, and had power to do so for more than five years, May 4. |