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, and Co., on a certain
voyage on the high seas, then being 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, and Co., 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 other, 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 50,0001. That the prisoner was a seaman on board, that he went into
the bulk head, and forecastle hold, opened the sliding door in the bulk
head, 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 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
At the second hearing of the case before the Court for 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 as to the jury as to the prisoner's knowing the probable consequences 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 mitting a felony, or, having committed it, is endeavouring to conceal his act, or prevent or spoil waste consequent on that act, he accidently does some collateral act which if done wilfully 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. . . . I shall consider myself bound for the purpose of this case by the authority of Reg. v. Pembliton (12 Cox C. C. 607). That case must be taken as deciding that to constitute an offence under the Malicious Injuries to Property Act, sect. 51, the act done must be in fact intentional and wilful, 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 offence to be under the 42nd section of the same Act, and it is not disputed that the same construction must be applied to both sections. . . . [p. 557] The jury were . . . 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 Reg. 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 cannot 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 sect. 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 on which he was engaged, and from which a malicious design to commit the injurious act with which he is charged might have been 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. . . .
FITZGERALD, B. – [omitted]
O'BRIEN, J. - I am also opinion that the conviction should be quashed, and I was of that opinion before the case for our consideration was amended by my brother Lawson. I had inferred from the original case that his direction to the jury was to the effect now expressly stated by amendment, and that, at the trial, the Crown's counsel conceded that the prisoner had no intention of burning the vessel, or of igniting the rum; and raised no questions as to prisoner's imagining or having any ground for supposing that the fire would be the result or consequence of his act in stealing the rum. With respect to Reg. v. Pembliton (12 Cox C. C. 607), it appears to me there were much stronger grounds in that case for upholding the conviction than exist in the case before us. In that case the breaking of the window was the act of the prisoner. He threw the stone that broke it; he threw it with the unlawful intent of striking some one of the crowd about, and the breaking of the window, was the direct and immediate result of his act. And yet the Court unanimously quashed the conviction upon the ground that, although the prisoner threw the stone intending to strike some one or more persons, he did not intend to break the window. The courts above have intimated their opinion that if the jury (upon a question to that effect being left to them) had found that the prisoner, knowing the window was there, might have reasonably expected that the result of his act would be the breaking of the window, that then the conviction should be upheld. During the argument of this case the Crown counsel required us to assume that the jury found their verdict upon the ground that in their opinion the prisoner may have expected that the fire would be the consequence of his act in stealing the rum, but nevertheless did the act recklessly, not caring whether the fire took place or not. But at the trial there was not even a [p. 560] suggestion of any such ground, and we cannot assume that the jury formed an opinion which there was no evidence to sustain, and which would be altogether inconsistent with the circumstances under which the fire took place. The reasonable inference from the evidence is that the prisoner lighted the match for the purpose of putting the spile in the hole to stop the further running of the rum, and that while he was attempting to do so the rum came in contact with the lighted match and took fire. . . .
KEOGH, J. - I have the misfortune to differ from the other members of the Court. I think it very fortunate for the prisoner that this case has lasted so long, and has received such elaborate consideration, for I cannot be considered as violating judicial confidence, when I state that if the case were decided when [p. 561] the arguments closed the conviction would stand. With regard to the alteration made by the learned Judge who tried the case, I have read it, and I do not understand it to make a particle of difference, from what we had so clearly and distinctly stated during the progress of the argument. With regard to the decision of the English Court of Criminal Appeal in the case of Reg. v. Pembliton, so much relied on for the prisoner, there appeared to be considerable hesitation among the members the Bench whether they would venture to overrule that decision. Baron Deasy, indeed, mentioned that he would not hesitate to do so, and in doing so he would be only following suit the Court of Criminal Appeal in England, for that Court overruled the decision of this Court in Reg. v. Fanning. . . . [I]n this particular case I see no reason why, having a very clear and distinct opinion in favour of a conviction I should not express it, notwithstanding that I have the misfortune to differ from my learned brethren and also have in some way to run at cross purposes with the decision in Reg. v. Pembliton. I am, therefore, of opinion, that the conviction should stand, as I consider all questions of intention and malice are closed by the finding of the jury, that the prisoner committed the act with which he was charged whilst engaged in the commission of a substantive felony. On this broad ground, irrespective of all refinements as to “recklessness” and “wilfulness," I think the conviction is sustained . . . .
PALLES, C.B. - I concur in the opinion of the majority of the Court, and I do so for the reasons already stated by my brother Fitzgerald. . . . [p. 562] The Lord Chief Justice of the Common Pleas, who, in consequence of illness, has been unable to preside to-day, has authorized me to state that he considers that the case before us is concluded by Reg. v. Pembliton.
DEASY, B., and LAWSON, J., concurred.