1862. REGINA v. LUCK and Others. BYLES, J., reluctantly, in favour of the prisoner, allowed the question. Ribton elicited that Allchin had stated that it was Burgess who fired the fatal shot. At the close of the case for the prosecution, Ribton submitted that there was no case, unless it were held that the prisoners, being all present, were equally guilty. The learned JUDGE said he certainly did not mean so to hold. Ribton. Then there is no case, I submit. There is no evidence of any authority to apprehend the men, and there is evidence that some of them were assailed. BYLES, J., said that it had been held, even under the old act of George 4, that it was not necessary to prove a "deputation" to a gamekeeper from the lord of the manor, but that any person, even a watcher, might apprehend parties, to the number of three or more, who were with weapons on land in pursuit of game. Ribton.-Provided they are "found committing" the offence. Here the men were not in a wood, but in a meadow through which there was a footpath. BYLES, J.-On their way to another wood. BYLES, J.-It is for the jury, I think. The whole question was for the jury. First, who fired the fatal shot? If that man could be identified he was undoubtedly guilty of manslaughter. Next, whether he could or could not be identified, the question would be which of the men were participating in the very act. Suppose all agreed that a shot should be fired, but the particular man who fired it could not be identified, they would all be equally guilty. Addison, on behalf of the five prisoners he defended, submitted, on the authority of two cases, Reg. v. Davis (a), Reg. v. Meadham (b), that the men could not be lawfully arrested unless "found committing the offence," and that there was here no evidence that the men had any intent to take game on the spot where they were attacked. BYLES, J., observed, that in one of these cases the men were on a turnpike road, at some distance from the wood. Addison urged that here they were on a meadow, through which there was a footpath, and that there was no evidence who was the owner of the meadow or of the other wood. Upon this, The learned JUDGE called a witness, the son of the owner of one of the woods, who stated that the other wood was also in the occupation of his father; that there was a footpath through the meadow, but that it lay in a direction quite different from that which the men were taking. BYLES, J., then said he thought there was a fallacy in the suggestion that, because the men were not actually found shooting or searching for game in the meadow, therefore they were not "found committing" the offence of night poaching; because the offence under the statute was "being on any land unlawfully for the purpose of destroying game or rabbits," and the men might well be deemed to be found in the meadow " for the purpose" of taking game in the wood. The whole question, it appeared to him, would be for the jury. At the close of the case, BYLES, J. (to the jury).—The questions are, who fired the fatal shot, and who were parties to the act? for whoever it was that fired the shot was clearly guilty of man 1862. REGINA V. LUCK and Others. 1862. REGINA บ. LUCK and Others. slaughter. The use of the flail, although it might reduce the offence from murder to manslaughter, could not reduce it any lower; and, he repeated, whoever fired that shot was beyond all doubt clearly guilty of manslaughter. So, all who were aiding and abetting in the act were equally guilty of that crime. Now, as to Luck-the prisoner chiefly charged with the offence-the chief evidence against him was that of the accomplice, and it was perfectly true that the evidence of an accomplice required corroboration, and that not merely as to the fringe or margin of the case, but as to its substance, and, above all, as to the persons accused; but here, although the accomplice who had been admitted evidence stated that the man who fired the shot was Luck, the other accomplice who had made statements inculpating the others-Allchin-had said that it was Burgess. So that it had depended merely on the choice by, the police of one or the other of those prisoners as witness for the Crown, whether the man charged with firing the shot would be Luck or Burgess. The question then was as to the other and independent evidence against Luck; and as to that, although there was ample and abundant evidence that he was there, there was no positive evidence that he had fired the fatal shot. There was positive evidence that the gun was seen pointed at the gamekeepers, and that was not reconcilable with the theory of accident. There was evidence of belief that the man was Luck, but no positive evidence; and at night, in a scuffle like this, it was very difficult to get such evidence. The jury might vehemently suspect that Luck was the man who fired the gun, but in a case of this nature, on a charge on which very serious punishment must follow upon conviction, and on which, indeed, his life had been in danger, they must be satisfied beyond all reasonable doubt that he did fire it, in order to convict him on the present charge on that ground. But, in the next place, even assuming that it could not be ascertained who fired the shot, all who were present, and were parties to the act, were certainly guilty; and it had been held and admitted that if all were in a row or a line when the gun was pointed and fired that would be strong evidence of a common purpose or design to shoot. It is, however, for your consideration, that though there were seven guns, only one was fired (a), and it is not clear that it was fired when the men were in a line. And on the point whether there was a common purpose to shoot it is most material, for if the men had all a design to shoot-and many of them had guns-why did they not all shoot? Or, at all events, why did not more that one shoot? This argument equally applies whoever it was that fired the gun. But if Luck fired the shot, was it fired by him in consequence of the severe personal encounter he had had with the keeper? If so, then it would not be fired in pursuance of any common design (b). Now, if you cannot say who fired the shot, then you should not convict any of the prisoners unless satisfied that all of them were parties to the act. The jury found a verdict of Not guilty, as to all the prisoners. Russell then proposed to proceed upon the charge of night poaching (c). (a) Sed vide ante, p. 486 (b). (b) The above case, like that of Regina v. Franz, Vol. II., p. 580, is a remarkable illustration of the reaction against the old doctrine of constructive homicide; and of the return to the more rational and humane rule or test of complicity which characterizes the modern cases, viz., a participation not merely in a common design, but a common design to commit a felony, and a felony homicidal in its nature, (c) The prisoners pleaded guilty 1862. REGINA บ. LUCK and Others. 1862. Kent Winter The prisoner REGINA v. MURTON. THE prisoner was arraigned for feloniously killing and wife, a heavy, slaying his wife. He was also indicted for an assault. had seized his corpulent woman, and dashed her violently on the brick floor of a kitchen, her with the tongs on her thigh, inflicting a severe bruise, but no injury in itself fatal. She languished ten days, during which she, at F. Russell for the prosecution. Ribton for the defence. The prisoner, a farmer, at Wickling, about fifteen miles and then struck from Chatham, lived with the deceased, as his wife, about thirty years, and had a daughter, who lived at Chatham. The wife was a heavy, corpulent woman; but on Wednesday, the 22nd of October last, was to all appearance in good health and strength, and the prisoner, on leaving home, said he desired the best bedroom to be got in effect driven ready, as he should bring home a friend with him the next away by him, day. On that day he called at the house of his daughter at Chatham, and from something he there dropped she came to the conclusion that he was about to take home a woman of the town with him, and she felt it her duty to no doctor go to Wickling and protect her mother from insult and his desire, and sought shelter at a friend's, where, at the end of that time, she died; he providing no medical aid, and visiting her until the day before her death, when it was too late. The medical evidence showed that she was dis eased, but that she might have lived for an indefinite pe riod; and that her death, by nervous sys tem calculated to aggravate the disease:Held, that if outrage. She proceeded there at once, and as she walked along, her father, in a cart, having two women with him, overtook her. She got up into the cart, and went with them to the house, where they arrived about eleven o'clock at night. When they got there, the two women were shown into the parlour with the husband, the wife being in the kitchen. He ordered some supper for the women, and it was brought in by the daughter. About twelve o'clock he said it was time to go to bed, and one of the girls said she did not mean to go to bed while his wife was in the house, and that she would not have come if she had known the wife was there. Upon that he became excited, and came out into the passage and said he would very soon clear her out. He went into the kitchen with a this were so, he was guilty of manslaughter. |