046-NLR-NLR-V-08-THE-KING-v-.DIAS.pdf
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THE KING v. DIAS.
P.C., Kiirunegala, 4,459.
Verdict of jury—Culpable homicide not amounting to murder—Pulling the triggerof a gun with the intention of intimidating.
Where, in the course of a dispute and fight in regard to an encroach-ment on land, a person aimed a revolver at his opponent and palled itstrigger three or four times in vain, and then snatched a gun from one ofhis party, and without bringing it to the shoulder pulled its trigger whenhis opponent was standing only a few feet from the muzzle, and the gundischarged itself into his chest and killed him,—
Held, that the verdict' of the jury that 11 the accused was guilty ofculpable homicide not amounting to murder, and that he pulled thetrigger with the intention of intimidating " was not bad.
T
his was a special case reserved by Mr. Justice Grenier for aFull Bench. The point involved appears in the following
statement of his lordship.a
At the criminal sessions of the Supreme Court for the WesternCircuit now being held in Colombo, Kirindage Elans DiasStood indicted before me for murder. The Crown called a large
1905.May 10,
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number of witnesses whose evidence showed that in the course ofa fight or dispute in regard to an encroachment which, it wasalleged, the prisoner, who was in the employ of 'Mr. E. L. F. deSoysa, had made on land belonging to Mr. David Gunasekera, underwhom the deceased was employed as a cooly, the prisoner firstaimed’ a revolver at the deceased and pulled the trigger three orfour times, but none of the cartridges exploded. He then snatcheda gun from one of his party who was standing close to him, andwithout bringing it to the shoulder fired at the deceased, who waswithin a few feet from the muzzle. The shot' lodged in thedeceased's chest, and he died from the effects of the wound soindicted about two days after. The prisoner himself had acontused wound on his forehead, and had to be attended to inhospital altogether for about four or five weeks. A cooly by thename of iMuniandi, who was one of prisoner's party, was alsowounded, although slightly. In view of the facts disclosed bythe evidence, I told the jury in the course of my summing upthat if they believed the evidence, and that prisoner fired the gunat deceased in the heat of passion in a sudden quarrel, and in thecircumstances deposed to by the witnesses called by the Crown,they should convict the prisoner of at least the offence of culpablehomicide not amounting to murder.
The jury retired, and returned into Court after being in con-sultation for some considerable time, and the foreman stated thattheir verdict was that the prisoner was guilty of culpable homicidenot amounting to murder, but added that the jury found that thegun went off while in the possession of the prisoner. I thenasked the foreman, as the finding seemed to me very indefinite,if the jury found that the gun went off accidentally, in which caseI said the prisoner would be entitled to an acquittal. The fore-man stated that such was not their finding. I asked the jury toretire, as they seemed to be unable to agree at once, and reconsidertheir verdict. The jury returned into Court and the foremanthen stated that the verdict of the jury was that the prisoner wasguilty of culpable homicide not amounting to ipurder, “ and thathe pulled the trigger with the intention of intimidating.” Toprevent any further uncertainty as to the verdict, I directed theforeman to reduce it into writing, which he did.
– I accepted the verdict of the jury as substantially one that ,the prisoner was guilty of culpable homicide not amounting tomurder, on the ground which was then present in my mind thatevery one was presumed in law to intend the natural and reason-able. consequence of his acts, and that even if the prisoner’sintention was to intimidate he should be held responsible for the20-
1005.May 10.
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1905.May 10.
death oI the deceased, once it was found by the verdict of thejury that the* prisoner discharged a loaded gun at the deceased,and, according to the evidence, which I assumed the jury creditedwithin a few feet of him.
I sentenced the prisoner to ten years’ rigorous imprisonment..
The question I would submit for the consideration of a bench oftwo or more Judges is whether I was right in accepting the verdictof the jury in the terms in which it was embodied as a verdictthat the prisoner was guilty of culpable homicide not amountingto murder.
The case came on for hearing before Layard, C.J., Moncrejff,JM and Grenier, A.J., on the 10th May, 1905.
Dornhorst, K.G. (with him Bawa and Van Langenberg), for theprisoner.
Rdmandthan, S.-G.’for the Crown, was not called upon.
10th May, 1905. Layard, C.J.—
The facts of this case are:—That in the.course of a dispute andfight in regard to an encroachment on certain land the prisonerpointed a revolver at the deceased and pulled the trigger three orfour times. According to the case stated, the reVolver was loaded,but none of the cartridges exploded.
The presiding Judge, who reserved the case, believed that therevolver was loaded, but I understand the prisoner’s counsel to .state that the revolver was not loaded, and that there was noevidence to show that the revolver contained any cartridges atthe time the pirsoner pulled the trigger.
For the purposes of my judgment, and as the prisoner does notadmit that the revolver of which he pulled the trigger three orfour times was loaded, I will assume that the revolver was notloaded. The prisoner then snatched a gun from one of his party,who was standing /dose to him, pointed the gun at the deceased,at the same time pulling the trigger, and shot the deceased whowas within a few feet of the muzzle of the gun. The deceaseddied from the gunshot wounds.
# The presiding Judge in his charge drew the attention of thejury to the distinction 'between culpable homicide amounting tomurder and culpable homicide not amounting to murder< andexplained to the jury that in certain, circumstances the jury wouldbe entitled, if they found certain facts, to return a verdict of tfielesser offence. The jury retired and returned into Court .bringing
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in a verdict of “ guilty of culpable homicide not amounting to 1906.'murder," Abut adding that “the gun went off while in possession May 10.of the prisoner."Layabd, C.J
The presiding Judge, very properly, pointed out to the jury thatif they found that the gun went off accidentally the prisonerwould be entitled to an acquittal. The foreman promptly repliedthat they did not so find. The Judge then asked the jury to re-tire again and reconsider their verdict. The jury subsequentlyreturned into Court and gave a verdict to the following effect:-^
“ That the prisoner was guilty of culpable homicide not amountingto murder, and that he pulled the trigger with the intention ofintimidating."**-
The presiding Judge accepted the verdict, but reserved a casefor the .consideration of this Court.
It is argued by the prisoner’s counsel that clearly the verdictand rider show that the prisoner did not do the act with theintention of causing death, or with the intention of causing suchbodily injury as was likely to cause death. I think I must sustainthe view that the prisoner's counsel advances in that respeot.
!By our law culpable homicide is not, however, limited to caseswhere a person causes death by doing an act with the intention o?causipg death, or with the intention of causing such bodily injuryns is likely to cause death, but includes the case in which a persondoes the act with the knowledge that by such act he is likely tocause death. It seems to me, therefore, that I am bound to assumefrom the verdict of guilty of culpable homicide returned by thejury, that they thought that the prisoner when he acted actedwith the knowledge that by pulling the trigger he was likely tocause death; that is to say, that he acted with knowledge that thegun, at the time he pulled the trigger, was loaded, and it appearsto me that from the facts as stated in this case the jury mightrightly deduce the knowledge of the prisoner from the surround-ing circumstances.
The prisoner had first apparently tried to intimidate theattacking party by pulling the trigger of an* unloaded revolver;if he did not wish to go any. further than to intimidate them bypointing an empty weapon at them, there was no necessity for himto have done anything more than to keep on pulling the triggerof the revolver, but he appears to have gone a step further, for he»snatched from the hand of one of his own companions a gun andpulled the trigger of that gun, whereby the death of the deceasedwas caused.
Where a person fails with an unloaded weapon to quell a disturbance,and snatches another weapon from a bystander, I cannot
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1906. say that the jury would be wrong in allowing the ordinaryto.presumption to apply,thathe knew that the gun was loaded
Laya»d,O.J. when he so snatched itfromhis companion and pulled the trigger.
It was argued by the prisoner's counsel that if all the factsdisclosed in tins casewereconsistent with innocence, then we
should not be justifiedin holding the prisoner guilty in view of
the presumption that might arise from his having snatched a gunfrom a bystander and pulled the trigger. I do not think, however,that we can in this case say that all the facts established pointedto the innocence of the prisoner. They do if we assume theprisoner believed the gun was unloaded. The presumption arises,for the facts proved against him is that he did know, and theprisoner has failed to rebut that presumption, and there is nothingto show that the jury in bringing in a verdict of guilty of culpablehomicide not amounting to murder did not find from the evidencebefore them that the prisoner had knowledge that the gun wasloaded.
Moncueiff, J.—
I am of the same opinion. I think there is no fatal inconsistencyin the verdict, which finds that the accused intentionally pulledthe trigger, and that his object was to intimidate or keep off thedeceased, with whom he was quarrelling; for the verdict * alsofinds that he was guilty of culpable homicide not amounting tomurder, which means that he knew that he was likely to causedeath by his act. In other words, he took the risk.
X
As for the suggestion that it was not proved that he knew thatthe gun was loaded, if it had been the case that he did *not know,I think that would have been the first thing he would have saidin answer to the charge. Far from doing so, he allowed his caseto be so tried that no special finding on that point was either askedfor or given.
The point, therefore, is in my opinion covered by the findingthat the accused was guilty of culpable homicide not amountingto murder.
Grenier, A.P.J.—
f I agree with my lord and with my brother Moncreiff.
I should not have reserved this point were it not that I wasdoubtful at the time whether I was right in accepting the verdictof the jury, in the terms in which it was embodied, as a verdictthat the prisoner was guilty of culpable homicide not amountingto murder.
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It was an unusual verdict for a jury to return in a case like this,where, I think, the evidence clearly established the fact that the Mavprisoner fired the gun at the deceased in the heat of passion and Grhnibb,upon a sudden quarrel.A.P.J.
In the course of my summing up, as I invariably do, I drew the *attention of the jury to the difference between murder and culpablehomicide not amounting to murder, and I understood by theirverdict that the jury found the prisoner guilty of the lesser
Now, it is perfectly plain to me that the rider which the juryadded to their verdict was unnecessary in view of their positivefiling that the prisoner was guilty of culpable homicide notamounting to murder.
It is of course impossible to say what was in the mind of thejury at the time they returned their verdict with this rideir, butjudging by what had transpired previously I take it that the juryfound, as a matter of fact, that the gun did not go off accidentally,
It was impossible for the Crown in the circumstances of thiscase to prove that the prisoner knew the gun was loaded, and thusbring home knowledge to him of the fact. The gun was in thepossession of his companion, and he took it from him after he hadmade certain unsuccessful efforts to discharge the revolver; and It.binlf that the same presumption must have occurred to the juryas occurred to me, that the prisoner knew very , well when he firedthe gun that it was loaded, and that the natural and probableconsequences of his act would be either death or grevious hurt.
I agree with the observations which my lord has made on thearguments advanced by counsel for the prisoner, and in myhumble opinion the verdict of the jury was quite justified by theevidence.
offence,
ftJ. W.B 600 (4/51)