The Queen v. Pembliton.. 1874 amined and cross-examined in the presence of the prisoner when the prisoner was before the magistrate, and it was now proposed to put in her deposition. The medical man, who was her regular attendant, gave the following evidence: "I know Mary Lee. She is very nervous, and seventy-four years of age. I think she would faint at the idea of coming into court, but I think she could go to London and see a doctor without difficulty or danger. I think the idea of seeing so many faces would be dangerous to her, and that she is so nervous that it might be dangerous for her to be examined at all. I think she could distinguish between the court going to her house and she herself coming to the court. It further appeared that she lived close to the court. It was proposed to read the deposition on the ground that the witness was "so ill as not to be able to travel" within the meaning of the 17th section of 11 & 12 Vict. c. 42. Certain cases were cited to me in which the words "so ill as not to be able to travel" have received a liberal interpretation. And as the prisoner had clearly embezzled the money, I admitted the evidence subject to a case for the opinion of this court. On consideration, we are all of opinion that this case was not within the words of the statute, and that it would be dangerous to admit any such latitude of construction as would bring the case within it. The conviction must therefore be quashed. Conviction quashed. [Law Reports, 2 Crown Cases Reserved, 119.] April 25, 1874. *THE QUEEN v. HENRY PEMBLITON. [119 Malicious Injury to Properly-24 & 25 Vict. c. 97, 8. 51-Malice-Intention. " The prisoner had been fighting with persons in the street and threw a stone at them, which struck a window and did damage to an amount exceeding £5. He was indicted under the Malicious Injury to Property Act for "unlawfully and maliciously causing this damage. The jury convicted him, but found that he threw the stone at the people he had been fighting with, intending to strike one or more of them, but not intending to break the window: Held, that by thus finding the jury negatived the existence of malice, either actual or constructive, and the conviction must therefore be quashed. CASE stated by the recorder of Wolverhampton. At the quarter sessions of the peace held at Wolverhampton, on the 8th of January, Henry Pembliton was indicted for that he "unlawfully and maliciously did commit damage, injury, and spoil upon a window in the house of Henry 1874 The Queen v. Pembliton. Kirkham," contrary to the provisions of the statute 24 & 25 Vict. c. 97, s. 51. This section of the statute enacts: "Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or a private nature, for which no punishment is hereinbefore provided, the damage, injury, or spoil being to an amount exceeding five pounds, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labor; and in case any such offence shall be committed between the hours of nine of the clock in the evening and six of the clock in the next morning, shall be liable at the discretion of the court to be kept in penal servitude for any term not exceeding five years, and not less than three, or to be imprisoned for any term not exceeding two years, with or without hard labor." On the night of the 6th of December, 1873, the prisoner was drinking with others at a public-house called "The Grand Turk," kept by the prosecutor. About eleven o'clock, p. m., the whole party were turned out of the house for being disorderly, and they then began to fight in the street, and near the prosecutor's window, where a crowd of 120] from forty to fifty persons collected. The *prisoner, after fighting some time with persons in the crowd, separated himself from them and removed to the other side of the street, where he picked up a large stone and threw it at the persons he had been fighting with. The stone passed over the heads of those persons and struck a large plate-glass window in the prosecutor's house and broke it, thereby doing damage to the extent of £7 12s. 9d. The jury, after hearing evidence on both sides, found that the prisoner threw the stone which broke the window, but that he threw it at the people he had been fighting with, intending to strike one or more of them with it, but not intending to break the window, and they returned a verdict of "guilty," whereupon the learned recorder respited the sentence and admitted the prisoner to bail, and prayed the judgment of the court for Crown Cases Reserved, whether upon the facts stated and the finding of the jury the prisoner was rightly convicted or not. No counsel appeared for the prisoner. Underhill, for the prosecution: The finding of the jury as to intent is surplusage; directly it is proved that he threw the stone which caused the damage without just cause, the offence is established. The Queen v. Pembliton. [LUSH, J.: That omits the word "maliciously."] 1874 In this act there are a number of sections in which intent is a necessary ingredient to the offence, and in all of them this is expressed. Thus a distinction is drawn by the legislature, and if intent had been necessary here it would have been inserted. The common law rule as to malice is applicable here, and the consideration arises whether "the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, malignant spirit:" Foster's Crown Cases, p. 256: Russell on Crimes, vol. i. p. 667 (4th ed.). Then here the jury have found that the prisoner was actuated by malice. [BLACKBURN, J.: But only of a particular kind, and not against the person injured.] In Reg. v. Ward (') the prisoner was charged with wounding with intent, and convicted of malicious wounding, though his intention was to frighten, not to shoot the prosecutor. *[BLACKBURN, J.: There was evidence of malice in [121 that case, and so the conviction was upheld, but here the express finding of the jury negatives malice.] In Rex v. Haughton (3) the prisoner set fire to a cow-house not knowing a cow was in it, and was convicted of maliciously burning the cow. So in Hale's Pleas of the Crown, p. 474, throwing a stone over a wall with intent to do hurt to people passing and killing one of them is treated as murder. [BLACKBURN, J.: Lord Coke, 3 Inst., p. 56, puts the case of a man stealing deer in a park, shooting at the deer, and by the glance of the arrow killing a boy that is hidden in a bush, and calls this murder; but can any one say that ruling would be adopted now?] The test is whether the act is malicious in itself as in the case of a person wilfully riding an unruly horse into a crowd: East, Pleas of the Crown, p. 231. [BLACKBURN, J.: I should have told the jury that if the prisoner knew there were windows behind, and that the probable consequence of his act would be to break one of them, that would be evidence for them of malice. The jury might perhaps have convicted on such a charge, but we have to consider their actual findings.] The 58th section, which renders it immaterial that there should be malice against the owner of the property or otherwise, applies. [LORD COLERIDGE, C.J.: No, that means against the owner, or some one not owner.] LORD COLERIDGE, C.J.: I am of opinion that the convic (1) Law Rep., 1 C. C., 356. (2) 5 C. & P., 559. tion should be quashed. The facts of the case are that there was fighting going on in the streets of Wolverhampton near the prosecutor's house, and the prisoner, after fighting some time, separated himself from the crowd and threw a stone, which missed the person he aimed at, but struck and broke a window, doing damage to the extent of upwards of £5. The question is, whether under an indictment for unlawfully and maliciously injuring the property of the owner of the plateglass window, these facts will support the indictment when coupled with the other facts found by the jury, that the 122] prisoner *threw the stone at the people intending to strike one or more of them, but not intending to break a window. I am of opinion that the evidence does not support the conviction. The indictment is under the 24 & 25 Vict. c. 97, s. 51, which deals with malicious injuries to property, and the section expressly says that the act is to be unlawful and malicious. There is also the 58th section, which makes it immaterial whether the offence has been committed from malice against the owner of the property or otherwise, that is, from malice against some one not the owner of the property. In both these sections it seems to me that what is intended by the statute is a wilful doing of an intentional act. Without saying that if the case had been left to them in a different way the conviction could not have been supported, if, on these facts, the jury had come to a conclusion that the prisoner was reckless of the consequence of his act, and might reasonably have expected that it would result in breaking the window, it is sufficient to say that the jury have expressly found the contrary. I do not say anything to throw doubt on the rule under the common law in cases of murder which has been referred to, but the principles laid down in such case have no application to the statutable offence we have to consider. BLACKBURN, J.: I am of the same opinion. We have not now to consider what would be malice aforethought to bring a given case within the common law definition of murder; here the statute says that the act must be unlawful and malicious, and malice may be defined to be "where any person wilfully does an act injurious to another without lawful excuse. Can this man be considered, on the case submitted to us, as having wilfully broken a pane of glass? The jury might perhaps have found on this evidence that the act was malicious, because they might have found that the prisoner knew that the natural consequence of his act would be to break the glass, and although that was not his wish, yet that he was reckless whether he did it or not; but the jury have not so found, and I think it is impossible to say in this case that the prisoner has maliciously done an act which he did not intend to do. PIGOTT, B.: I am of the same opinion. *LUSH, J.: I am of the same opinion. On these find- [123 ings we have no alternative. The jury might have found otherwise, but taking this finding I cannot say that there was an intent either actual or constructive, and "malicious" certainly must be taken to imply an intention either actual or constructive. CLEASBY, B.: I am of the same opinion. Conviction quashed. Attorney for the prosecution: Barrow, Wolverhampton. [Law Reports, 2 Crown Cases Reserved, 123.] THE QUEEN V. COOPER. Bailee-Agent-Fraudulent Misappropriation of Security-24 & 25 Vict. c. 96, 88. 75, 76. The defendant, an attorney, was employed to raise a loan of money on mortgage, of which he was to apply a part in paying off an earlier mortgage, and to hand over the rest to the mortgagor. He prepared the mortgage deed, received the mortgage money, and handed over the deed to the mortgagee in exchange. He then misappropriated a part of the money to his own use: Held, that no offence had been committed under s. 75 or s. 76 of 24 & 25 Vict. c. 96. CASE stated by Grove, J. In this case, tried at the last assizes for the county of Chester, the defendant, an attorney, was indicted under the statute 24 & 25 Vict. c. 96, for having converted to his own use certain money entrusted to him, or received by him as the proceeds of a deed entrusted to him for a special purpose. The indictment contained two counts framed respectively under the 76th and 75th sections of the above statute ('). (1) By 24 & 25 Vict. c. 96, s. 75, "Whosoever having been entrusted, either solely or jointly with any other person, as a banker, merchant, broker, attorney, or other agent, with any money, or security for the payment of money, with any direction in writing to apply, pay, or deliver such money or security, or any part thereof respectively, or the proceeds, or any part of the proceeds, of such security for any purpose or to any person specified in such direction, shall in violation of good faith and contrary to the terms of 9 ENG. REP. such direction, in any wise convert to his own use or benefit, or the use or benefit of any person other than the person by whom he shall have been so entrusted, such money, security, or proceeds, or any part thereof respectively; and whosoever having been entrusted, either solely or jointly, with any other person as a banker, merchant, broker, attorney, or other agent, with any chattel or valuable security or any power of attorney for the sale or transfer of any share or interest in any public stock or fund whether of the United 64 |