In the Court of Crown Cases Reserved for Ireland, 1877.

Where a Sailor on Board a ship entered a part of the vessel where spirits were kept, for the purpose of stealing rum, and, while tapping a cask of rum, a lighted match, held by him, came in contact with the spirits which were flowing from the cask tapped by him, and a conflagration ensued, which destroyed the vessel; held, per curiam (KEOGH, J. dissentiente), that a conviction for arson of the ship could not be upheld.

Case reserved by LAWSON, J. At the Cork Summer Assizes, 1876, the prisoner was indicted for setting fire to the ship Zemindar, on the high seas, on the 26th day of June, 1876; the indictment was as follows: "That Robert Faulkner, on the 26th day of June, 1876, on board a certain ship called the Zemindar, the property of Sandback, Tenne, & Company, on a certain voyage on the high seas, feloniously, unlawfully, and maliciously, did set fire to the said ship "with intent thereby to prejudice the said" (these words were struck out at the trial by the learned judge, and the following words inserted, "called the Zemindar, the property of"), Sandback, Tenne & Company, and that the said Robert Faulkner, on the day and year aforesaid, on board a certain ship called the Zemindar, being the property of Sandback, Parker and others, on a certain voyage on the high seas, then being upon the high seas, feloniously, unlawfully, and maliciously, did set fire to the said ship, with intent thereby to prejudice the said Sandback, Parker and (801)

2 DEFENCES.

51

others, the owners of certain goods and chattels then laden and being on board said ship." It was proved that the Zemindar, was on her voyage home with a cargo of rum, sugar, and cotton, worth fifty thousand pounds. That the prisoner was a seaman on board; that he went into the forecastle hold, opened the sliding door in the bulkhead, and so got into the hold where the rum was stored; he had no business there, and no authority to go there, and went for the purpose of stealing some rum; that he bored a hole in the cask with a gimlet; that the rum ran out; that when trying to put a spile in the hole out of which the rum was running he had a lighted match in his hand; that the rum caught fire; that the prisoner himself was burned on the arms and neck; and that the ship caught fire and was completely destroyed. At the close of the case for the Crown, counsel for the prisoner asked for a direction of an acquittal on the ground that on the facts proved the indictment was not sustained, nor the allegation that the prisoner had unlawfully and maliciously set fire to the ship proved. The Crown contended that inasmuch as the prisoner was at the time engaged in the commission of a felony, the indictment was sustained, and the allegation of the intent was immaterial.

At the second hearing of the case before the Court of Crown Cases Reserved, the learned judge made the addition of the following paragraph to the case stated by him for the court.

It was conceded that the prisoner had no actual intention of burning the vessel, and I was not asked to leave any question to the jury as to the prisoner's knowing the probable consequences of his act, or as to his reckless conduct."

The learned judge told the jury that although the prisoner had no actual intention of burning the vessel, still if they found he was engaged in stealing the rum, and that the fire took place in the manner above stated, they ought to find him guilty. The jury found the prisoner guilty on both counts, and he was sentenced to seven years penal servitude. The question for the court was whether the direction of the learned judge was right; if not, the conviction should be quashed.

DowSE, B., gave judgment to the effect that the conviction should be quashed.

BARRY, J. A very broad proposition has been contended for by the Crown, namely, that if, while a person is engaged in committing a felony, or having committed it, is endeavoring to conceal his act, or prevent or spoil waste consequent on that act, he accidentally does some collateral act, which if done willfully would be another felony either at common law or by statute, he is guilty of the latter felony. I am by no means anxious to throw any doubt upon, or limit in any way, the legal responsibility of those who engage in the commission of felony,

or acts mala in se; but I am not prepared without more consideration, to give my assent to so wide a proposition. No express authority either by way of decision or dictum from judge or text-writer has been cited in support of it. The authorities mainly relied upon are those which lay down that if homicide or the burning of a house be the direct, though unintended result of an act felonious or malum in se, the perpetrator will be guilty of murder or manslaughter or arson, as the case may be. As regards the case of homicide they may be referred to principles applicable to that class of offense, the authorities as to arsons are more in point, but they all put the case of an act felonious or malum in se, willfully done and directly causing the ultimate injury. As to whether there may be any substantial distinction between the act of lighting the match in the present case, and the shooting at the deer with the felonious intent in the authorities cited, or whether this doctrine of constructive willfulness, or malice extends to any but felonies at common law, I shall not pronounce any opinion, as I shall consider myself bound for the purpose of this case by the authority of Regina v. Pembliton.1 That case must be taken as deciding that to constitute an offense under the Malicious Injuries to Property Act,2 the act done must be, in fact, intentional and willful, although the intention and will may (perhaps) be held to exist in, or be proved by, the fact that the accused knew that the injury would be the probable result of his unlawful act, and yet did the act reckless of such consequences. The present indictment charges the offense to be under the forty-second section of the same act, and it is not disputed that the same construction must be applied to both sections. I confess, that as at present minded I am not altogether satisfied with that decision, so far as it seems to be rested upon the construction to be given the words: " unlawfully and maliciously" in that particular statute. To constitute the crime of arson at common law, the setting fire to the house must be unlawful and malicious, yet it is not disputed that a person firing a shot with a felonious intent, and thereby unintentionally burning a house is guilty of feloniously burning it; and certainly, it seems difficult to see why the words “unlawful and malicious," when used to describe the essential attributes of the burning of a house as an offense at common law, are to receive a different interpretation from the same words when used in the statute, the object of which is simply to place the burning of a house and the burning of a ship in the same legal category. Perhaps the true solution of the difficulty is, that the doctrine of constructive malice or intention, only applies to cases where the mischief with which the accused stands charged would be, if maliciously committed

We can not consent to this position. The instruction told the jury, in effect, that if they should find the defendant guilty of the crime of blackmailing, the one for which he was being tried, then they might inflict punishment for other crimes, for which he was not being tried, without informing them even, in said instruction, that such other crimes must be proved beyond a reasonable doubt. This instruction gave to the jury an erroneous statement as to the law, viz., that a man might be punished in a prosecution for one crime for another for which he was not prosecuted. This would license the jury wrongfully to turn their attention and thoughts to the facts as to those other crimes, by which feelings and prejudices might be aroused against the defendant, and might naturally lead the jury, certainly in a doubtful case, to argue thus: "The court has told us that we have a right to punish the defendant for the crime of seduction on this trial for blackmailing, if we find him guilty of the blackmailing. It may be doubtful whether he is guilty of blackmailing, but it is clear that he is guilty of the seduction, and ought to be punished therefor; and, as he may be so punished in this case, if we find him guilty of blackmailing, it will not make much difference to him how the punishment comes, and we may as well waive doubts, find him guilty, and put on the punishment for seduction."

There are, probably, other errors in the record, but it is not necessary that we should note them.

The judgment is reversed, and cause remanded, etc.

The clerk will give proper notice for the return of prisoner, etc.

THREATENING TO TAKE LIFE-EVIDENCE.

MARCH v. STATE.

[3 Tex. (App.) 107.]

In the Court of Appeals of Texas, 1877.

M. was Convicted of Seriously Threatening to kill one T. in an altercation between them. The witnesses concurred in testifying that the threat was uttered while the accused was punching T. with his gun, and that nothing prevented him from then shooting T. if he had wished to do so; that he made no attempt to shoot, and had been since living in the same neighborhood with T., and without molesting him. Held, that the evidence does not sustain the conviction.

APPEAL from the District Court of Rusk. Tried below before the Hon. A. J. BOOTY.

directed to give a verdict of guilty upon the simple ground, that the firing of the ship, though accidental, was caused by an act done in the course of, or immediately consequent upon, a felonious operation, and no question of the prisoner's malice, constructive or otherwise, was left to the jury. I am of opinion, that according to Regina v. Pembliton, that direction was erroneous and that the conviction should be quashed.

FITZGERALD, J. I concur in opinion with my brother BARRY, and for the reasons he has given, that the direction of the learned judge can not be sustained in law, and that therefore the conviction should be quashed. I am further of opinion that in order to establish the charge of felony under section 42, the intention of the accused forms an element in the crime to the extent that it should appear that the defendant intended to do the very act with which he is charged, or that it was the necessary consequence of some other felonious or criminal act in which he was engaged, or that having a probable result which the defendant foresaw, or ought to have foreseen, he nevertheless, persevered in such other felonious or criminal act. The prisoner did not intend to set fire to the ship. The fire was not the necessary result of the felony he was attempting; and if it was a probable result, which he ought to have foreseen, of the felonious transaction in which he was engaged, and from which a malicious design to commit the injurious act with which he is charged might have fairly imputed to him, that view of the case was not submitted to the jury. On the contrary, it was excluded from their consideration on the requisition of the counsel for the prosecution. Counsel for the prosecution in effect insisted that the defendant, being engaged in the commission of, or in an attempt to commit a felony, was criminally responsible for every result that was occasioned thereby, even though it was not a probable consequence of his act or such as he could have reasonably foreseen or intended. No authority has been cited for a proposition so extensive, and I am of opinion that it is not warranted by law. Referring to the statute on which the prisoner is charged, it is to be observed, that in several instances, the sections creating substantive felonies are followed by others making an attempt to do the same thing also a felony. Now, it is obvious, that an attempt to do a particular thing necessarily involved the intention to commit the act. If, in the case before us, the burning rum had been extinguished before the ship took fire, could it be contended that an indictment for a willful and malicious atttempt to set fire to the ship could have been maintained?

FITZGERALD, B. I am of opinion that the direction of the learned jndge at the trial was wrong, and that the conviction can not be sus