ET UXOR. 1851. s. 11-Assault -Autrefois acquit. REG. v. BIRD of opinion that they could have been so lawfully convicted. The section enacts, "that on the trial of any person for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, 1 Vict. c. 85, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding." The true rule for the construction of a statute in my opinion is that laid down by Mr. Justice Burton, in Warburton v. Loveland, and stated by Mr. Baron Parke, in 2 Meeson & Welsby, 193-that courts ought to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, and no further. Now, to apply this rule to the present case. The first trial of the prisoners was for a felony. The crime charged, viz., murder by violence, included in the several counts of the indictment, assaults against the person; the evidence of these assaults was lawfully given and received in alleged proof of the murderous deed. The jury acquitted of the felony, and the evidence, in point of fact, clearly warranted the finding the prisoners guilty of assault, and so also in law, inasmuch as there was no lawful excuse or justification of them. The case, therefore, seems to me to fall within the very words of the statute. Then, is this construction at variance with or repugnant to the intention of the Legislature, to be collected from the statute, or does it lead to any manifest absurdity? It seems to me that it is in conformity with the intention of the Legislature, so far as I can collect it, and I am not aware that any one has contended that it is absurd. The statute was to amend the laws relating to offences against the person. At common law a misdemeanor could not be joined in the same indictment with a felony, and the consequence was that in all cases of alleged felonious offences against the person, if the prisoner was acquitted of the felony, he was free altogether upon that indictment, and a fresh indictment was necessary in order to bring the offender to justice. The object of this enactment was to prevent the necessity and make provision for the conviction and punishment of the offender in the then present trial; and it seems to me that the object and spirit of the enactment is to enable the guilty person, although he be acquitted of the felony, to be at once convicted and punished for the assault, if he be charged with it in the indictment. If the construction contended for by the counsel for the Crown be the correct one, and the assault must conduce to the death, the consequence seems to me inevitable that, in all cases of alleged murder or manslaughter, there cannot be a conviction for an assault at all under the statute, for if the assault conduces to the death, the party whose assault is so conducive must either be guilty of murder or manslaughter, or his assault must be a justifiable act. It would be absurd to contend that a justifiable act would be an assault within the meaning of the section, and Judgment of ET UXOR. 1851. 1 Vict. c. 85, s. 11-Assault acquit. therefore it seems to me the argument for the Crown must go the REG. v. BIRD length of contending that the statute does not apply to cases of murder or manslaughter at all. I do not go into cases of other felonies, although I believe the same consequence.will legitimately follow from the same line of reasoning, and the statute would (if it be correct) be wholly inoperative. But I do not think this is the Autrefois correct construction of the statute, and in my opinion the true criterion is is the assault, in point of fact, charged upon the face of the indictment, and is it part of the act or transaction which the prosecutor gives evidence of as conducing to the felony? If it falls within these two categories, in my opinion the prisoners may be lawfully convicted of it by virtue of the statute. Take the third count of this indictment, that is the count for beatings on the 5th of November and 1st of December, 1849, and the 1st of January, 1850, and on divers other days between the 5th of November and the 1st of January. Suppose there had been no evidence of the particular blow which is said to have caused the death, and the jury had not been satisfied that these blows (which it seems to me are specifically stated in this count) had caused the death, but the case had been left to them by the judge as a fair case for them to exercise their judgment upon; if these blows conduced to the death, the prisoners were guilty either of murder or of manslaughter, but if they did not conduce to the death, according to the argument for the Crown, the jury ought to have been told that they could not find them guilty of the assault. It seems to me that the statute was intended to meet this very case, and if so, Judgment of I think the proof of the particular blow that caused the death can- Martin, B. not alter it. Again, suppose the evidence of the particular blow had been given on behalf of the prisoners, as it was a fair question of fact for the jury whether the violence by the beatings, or by that blow caused the death, this seems to me to be directly within the statute, and it cannot, in my judgment, make any difference on behalf of which party the evidence was given at the trial. On the argument a great number of cases were cited, but there are only three to which I think it necessary to refer, viz., the cases of Reg. v. Phelps, Reg. v. Crumpton, which were principally relied on by the counsel for the Crown; and Reg. v. Birch, which was principally relied on by the counsel for the prisoners. Reg. v. Phelps was tried at the Summer Assizes, 1841, and the report states that the first count of the indictment charged the prisoners as principals in the first degree for the murder of John Overbury, by striking and beating him. The second and third counts charged Phelps as principal, and two others as principals in the second degree, in the following form:"That the said Southan and Smith (the two other persons in the indictment with Phelps), at the time the felony and murder was committed, were feloniously present abetting, aiding and assisting the said John Phelps." The statement of the evidence is, that as the deceased was going away from a public-house Phelps struck him several times, and he was afterwards killed by violence, and the evidence went to show that the prisoner Phelps had gone away before the violence which caused the death was inflicted. ET UXOR. 1851. 1 Vict. c. 85, s. 11-Assault -Autrefois acquit. REG. V. BIRD The charge of murder, therefore, failed, and the prisoner Phelps was found guilty of an assault. The counsel for the prisoners objected that Phelps could not be convicted of the assault, as the assault was totally independent of the felony. It was urged by them that it was only when the assault is included in the felony charged that a conviction for an assault can take place. There the case was the same as if Phelps had struck the deceased, and afterwards some person wholly unconnected with Phelps, and not knowing that he had struck the deceased, had killed him after Phelps had gone away. Mr. Justice Coltman reserved the point, and the judges were of opinion that the conviction for the assault was wrong. I think this case distinguishable from the present; according to the report the indictment does not charge the prisoner with beating the deceased, specifying with particularity and precision certain beatings alleged to have been given, and drawing a conclusion that thereby the death was caused, but rather seems to charge as the beatings those only by which the death was caused. Now, if this be the true construction of the indictment, the decision is exactly conformable to my view of the right construction of the statute; for the beatings charged in the indictment would be the beatings which caused the death-beatings with which Phelps had nothing to do, and therefore the beatings which Phelps inflicted were not charged in the indictment at all; and if so, in my opinion, he could not be lawfully convicted of them. But in the present case the beatings which are charged in the indictment for the misdemeanor are the same identical beatings which were charged in the indictment for the felony, stated and here marked as it were with certainty and precision. In the latter indictment, it is true, a false conclusion, in fact, is alleged; viz., that they caused the death which they did not. But they were charged in the indictment as the cause of death; and, as I have already said, in my opinion, it was competent for the jury to find the prisoners guilty of these beatings and to acquit them of the felony. If, however, the indictment did charge the specific assaults committed by Phelps, I can only say that the judgment seems to me to be at variance with the subsequent case of Reg. v. Birch, which I consider a better authority, and in point with the present. Reg. v. Crumpton was tried at the Spring Assizes, 1842, and the first count of the indictment charged that the deceased was the apprentice of the prisoner; that it was the duty of the prisoner to suffer and permit him to take such proper exercise as was necessary for his bodily health, and to find and supply him with proper and necessary nourishment, medicine, medical care and attendance; and that the deceased, being weak in body, the prisoner struck and beat him, and forced him to work for an unreasonable time, and would not allow him to take proper exercise and recreation, and neglected to supply him with proper nourishment and medicine, medical care and attendance, by means whereof he died. The second count charged that the deceased being such an apprentice, the prisoner feloniously did make an assault on the deceased, and being weak in body, the prisoner forced him to work for unreason Judgment of 66 ET UXOR. 1851. 1 Vict. c. 85, s. 11-Assault acquit. able and improper times, and beat him; by means whereof he died. Reg. v. Bird The evidence was, that the prisoner was a tailor, and the deceased was his apprentice; that the latter had been in ill health for a year before his death, and had a bad cough, and was kept at work on some occasions from six o'clock in the morning until eight or nine in the evening; and that, about five weeks before his death, Autrefois the prisoner beat him with a small cane. That about three weeks before his death he left the prisoner's house and went to his grandfather's, where he died; and the surgeon, who made a post mortem examination, stated that he died of consumption; that over-work and ill-usage might have accelerated his death, but he was not able to say that it had done so; he stated, also, that there were some bruises on his legs, but they could not at all have contributed to the death. It was urged that the prisoner might be convicted of the assault. Mr. Justice Patteson is reported to have said: "I think that in order to convict a person of an assault under the statute, it must be an assault which is the subject-matter of the charge, and embodied in the charge, and which would itself be the felony, but for some other cause. Now this, in my judgment, is the true construction of the statute as it is; because the assaults in the present case were the subject-matter of the charge, and embodied in the charge; and if the death had arisen from them they would have been the felony; therefore, I am of opinion that the case is within the statute. But the learned judge goes on to say: I think no assault is included in a charge of manslaughter which does not conduce to the death of the deceased, although the death itself be manslaughter;" and as the surgeon disconnected the Martin, B. assault from the death, he directed an acquittal altogether. Upon the best consideration I have been able to give to this question, I cannot concur in this latter part of his lordship's judgment. The conducing to the death does not, in my opinion, form the rest. In Reg. v. Birch, which was tried at the Spring Assizes, 1846, the indictment charged the prisoner with an assault and a robbery of a watch and money. The person supposed to have been robbed did not appear at the trial; but witnesses, who saw the transaction, proved that the prisoner struck the person named in the indictment. The jury stated they were not satisfied that there was any intent to rob, and they found the prisoner guilty of an assault. Mr. Armstrong, who tried the case, after consultation with Mr. Justice Patteson, reserved the case for the opinion of the judges; and upon that occasion they gave an exposition of the statute. It is thus stated in 1 Den. p. 186 :-" The enactment is not to be confined to cases where the prisoner committed an assault in the prosecution of an attempt to commit a felony; nor is it to be extended to all cases in which the indictment for a felony on the face of it charges an assault. In order to convict of an assault under the section, the assault must be included in the charge on the face of the indictment, and also be part of the very act or transaction which the Crown prosecutes as a felony by the indictment." It is thus stated in Carrington & Marshman:-" The opinion of the judges Judgment of REO. v. BIRD 1851. s. 11-Assault acquit. was, that the statute applies whenever the indictment charges an assault, and the jury, negativing the felony, finds guilty of the assault; provided always, that the finding be in respect of the very same acts which the Crown seeks to make felonies. Identity being 1 Vict. c. 85, the question, and not the intention of the prisoner to commit -Autrefois felony, otherwise the statute would not apply to the ordinary cases of wounding with intent," &c. In my opinion this is the correct exposition of the statute. But even supposing I did not concur with this judgment, it seems to me it would nevertheless be my duty to submit to it. It is the unanimous judgment of the judges upon the point given judicially upon the construction of the statute; and if such a judgment is not to be held conclusive, I am at a loss to know how certainty in the law can be attained. I do not mean to say that if the very improbable case occurred of an unanimous judgment being clearly and obviously and manifestly wrong and absurd, I would consider myself absolutely estopped from exercising my own reason and judgment in respect of the point decided; but what I mean is, that if there be an unanimous judgment upon a point of difficulty and nicety, upon which a difference of opinion might have reasonably existed, and did exist before such a judgment, I think after such judgment I ought to be bound by and act upon it, and consider the matter to be settled and at rest. In my opinion this judgment directly applies to the present case, and ought to be conclusive upon it. As I am therefore of opinion upon the substantive question that the prisoners were by law entitled to have the verdict found for them upon the issue on the plea of autrefois acquit, I do not think it necessary to give any opinion upon the other two questions raised by the counsel for the prisoners. Judgment of Talfourd, J. TALFOURD, J.-I am of opinion that the conviction is right; that this plea of previous acquittal was not and could not be sustained; and that the charge of the learned judge who tried the issue joined on that plea, presented to the jury the only question, which, if decided in favour of the prisoners, could have entitled them to judgment. On behalf of the prisoners two points were argued, and most ably argued at the bar, first, that the prisoners might have been equally convicted of the assault which formed the subject of the indictment for misdemeanor on the previous indictment for murder; and secondly, that the learned judge at the trial of the issues on the special plea, misdirected the jury. The first and main question turns on the construction of the statute which, for the first time, enabled juries to convict of common assault in an indictment for felony. That statute was passed "to amend the laws relating to offences against the person," and, repealing antecedent acts, it proceeds to define the punishment of several offences of the description which its like indicates, and it is not immaterial to the true construction of the clause which refers to these offences, to bear in mind their character. These are attempts to murder, by various means stated, producing wound or bodily injury, which are made punishable with death-the attempt |