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Maidstone Crown Court, coram Byles, J.
1862. REGINA v. LUCK AND OTHERS.
Assizes. MANSLAUGHTER. The prisoners, eight in number, More than nine
men, of whom were indicted for feloniously killing one Gray.
armed with F. Russell and F. J. Smith for the prosecution.
guns, being out
at night in Ribton for Luck and another prisoner, Allchin.
game, were Addison for five others, Burgess, Catt, Clapsen, Obey met, as they
passed through and Stevens.
a field, from one
wood to anoOn the night of the 22nd of January last, the night ther, by a party being misty, though moonlight, the prisoners had assem
of gamekeepbled at Malling, and gone to the woods of an estate called fire-arms, but
who at once Roydon Hall, seven of them having guns for the purpose assaulted them
with sticks; of shooting game. When they got there and had fired six and one shots at game, the keepers heard them, and, without gunsthe deceased being however armed with a flail-came upon weapon, a flail,
likely to inflict them, and met them as they were going across a meadow, deadly injury, through which there was a footpath, towards another so
with which he wood, about midnight. The evidence for the prosecution the poachers,
upon which was, that when the prisoners saw the gamekeepers they another of them
fired and killed
him. The grand jury were directed to throw out bills for murder against two of the men, one of whom was supposed to have fired the fatal shot, and the whole nine were indicted for manslaughter. There was evidence that they all stood in a row and cried “shoot :"— Held, that, whether or not the man who fired the shot could be identified, none of the prisoners would be guilty, unless parties to the act of firing; and that though their being in a row, and crying out “ shoot" was evidence that they were parties to the act, it was only evidence, and its effect would depend upon how far all the circumstances showed that the firing was in pursuance of a common design to shoot, or only in consequence of a particular personal encounter.
Held, also, that an approver having given evidence that one of the prisoners fired the shot, a policeman might be asked whether another of them, who had given information, had not stated that it was a different man who fired.
LUCK and Others.
stood in a “row," or a “line;” but there was some attempt to raise a doubt whether this did not refer to their being in the act of passing along the footpath in single file. It was, however, no more than a doubt; and at the close of the case, it appeared that the path led in a different direction from that in which the prisoners were going, and that they were going from one wood to another, and from their number, and the fact that only six shots had been fired, it would seem, that they were going on to shoot at game, though this did not distinctly, by express proof, appear.
Two of the men (Luck and Eversfield) were indicted for murder, as they were supposed to have been the two men mentioned as having threatened to shoot.
The learned Judge charged the grand jury on the case with special reference to the evidence, upon the depositions, of an affray with Gray before the firing of the fatal shot, and the use by him of the flail; and he told the grand jury that, as the poachers were not engaged iu a felony, the use of the fail with violence might reduce the offence to manslaughter, the men having the guns in their hands ready loaded.
In consequence of this the grand jury threw out the bills for murder, and found true bills against all the prisoners for manslaughter.
Nine men altogether had been apprehended, but in the course of the assize,
F. Russell, for the prosecution, applied to the learned Judge for leave to have one of them (Hawks) admitted as a witness for the prosecution, and
The learned Judge, having the assurance of the learned counsel that it was necessary for justice, allowed this to be done.
The other eight men were accordingly now arraigned at the bar charged with manslaughter, and also with night
LUCK and Others.
poaching. Their names were Luck, Allchin, Eversfield, Stevens, Obey, Clapsen, Burgess and Catt.
F. Russell and F. J. Smith were counsel for the prosecution.
Addison was counsel for five of the prisoners—the five last named.
Ribton was for the two first named, Luck and Allchin ; Eversfield was not defended by counsel.
F. Russell, in opening the case and stating the law as applicable to it, said that, by the 14 & 15 Vict. c. 19, s. 11, any person might arrest men found committing an indictable offence at night.
The learned Judge observed, that there was another power to arrest in such a case, under an older Act (9 Geo. 4, c. 69) not repealed.
F. Russell said that was so; and he supposed he might take it, then, that the gamekeepers had power to arrest the poachers in this case (a); and if the gamekeeper killed had used no unnecessary violence, and had acted temperately in his efforts to apprehend them, the man who shot him would have been clearly guilty of murder. But if, in attempting to arrest them, he had used more violence than necessary, or had used a weapon likely to inflict a serious injury, and did not act with caution and temperance, it might well be that the provocation given by such violence might reduce the crime to manslaughter. Still, however, the man who fired would, at the very least, be guilty of manslaughter. And as regarded the other prisoners who were all present, engaged in the common purpose of committing an indictable offence, and also in the common purpose of resisting, with deadly weapons, lawful apprehension and arrest, they were all equally guilty
LUCK and Others.
in the eye of the law of the same crime of manslaughter. He cited R. v. Edmeads (a).
The first witness called, one of the watchers, said, they heard no less than six shots before they met the men. The prisoners came within six or seven yards of them, and quite near enough to hear what was said. Seven of them had guns (6); the gamekeepers had none, but Gray had a fail, which was produced. One of the poachers said, “ The first man that sets a step forward I'll shoot.” Gray called out, “Oh, you would not be so cowardly as to shoot.” The man cried out, “So help me God, I will." Another gamekeeper called out, “No, no; the same God who is over you is over me. You won't shoot.” One of the prisoners declared he would. The witness could not say who it was. Gray then said to his men, “ Are you ready?" and they made a rush at the prisoners. One of the men fired his gun, and Gray was shot in the thigh. The witness believed that he was shot before any blow was struck. He did not fall at once. He struck one or two blows after he was shot. Then he fell.
Another witness stated that the prisoners " stood in a row," and he thought there were thirteen. He spoke to the same expressions. One man said, “ Shoot, shoot.” All the men down the row said so, or seemed to say so. Gray rushed forward, and the witness heard the fail rattle before he was shot. The prisoners had not moved from their places before the shot.
Another of the watchers described the scene in a similar way, but stated that the prisoners, when they saw the gamekeepers, “formed themselves into a line, as one of them ordered them to do.” He believed it was Luck who fired the gun. He saw it fired, and, to the best of his
(a) 3 C. & P. 390. " It is a and pointed their guns at the question of fact for the jury, what keepers." the common purpose was; the evi- (b) And as six had been just fired dence there, being, that the pri- off, probably only one remained soners were all drawn up in a line, loaded, and that was the one fired.
belief, Luck was the man. He could not say whether 1862. Gray struck any one, but he did not strike that man who
REGINA fired; not before he fired. After the shot was fired the
LUCK witness was knocked down, and he could not recognize any and Others. other of the men.
Another of the gamekeepers' assistants described the prisoners as “in a line across the meadow," and said, they told the keepers to stand back, or they would shoot. He saw one of the prisoners turn the butt of his gun up to strike Gray, who said, “ That looks a little more manly than shooting.” Then the witness said he believed that Gray made a blow with the flail, and as soon as he had made a blow he was shot by another prisoner, not the one he had struck at. The man pointed the gun at Gray and shot him in the thigh; who it was the witness could not say positively, but believed it was Luck.
Another of the assistants described the prisoners as “standing in a row.”
None of the witnesses, however, spoke as to any other than one gun being presented or fired.
Hawks, the approver, swore that Burgess and Luck had guns, and that Luck fired the shot; that the deceased hit at one of the prisoners, he could not say which, and that Luck then fired the fatal shot.
A police officer proved the admission, by all the other prisoners, that they had been at the affray.
Ribton, in cross-examination, elicited that Allchin had first given information, and then proposed to extract what he had stated as to which of the prisoners fired the fatal shot.
Russell objected : and
BYLES, J., doubted, because Hawks could only be discredited out of his own mouth, or contradicted by an eyewitness, and not by hearsay; but
Riblon pressed that he could not call Allchin.