094-NLR-NLR-V-25-THE-KING-v.-RENGASAMY.pdf
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1924.
[Chovto Cass Reserved.]
Present: Bertram C.J., De Sampayo J., and Garvin A.J.THE KING v. RENGASAMY.
3—P. C. Kegalla, 2,522.
Murder committed while in a state of drunkenness—Self-induced intoxica-tion—Penal Code, as. 78, 79, and 294—Knowledge—Intention.
In all cases of self-induced intoxication it is a question of factfor the jury, whether the accused actually entertained the intentionnecessary to constitute the crime.
Section 79 is intended to deal with two classes of cases :—
(а)Cases in which knowledge is an essential element of the
crime.
(б)Cases in which intention is an essential element of the crime.
In the first of these cases it imputes to the drunkard the
knowledge of a sober man. In the second of these cases it alsoimputes to the drunkard the knowledge of a sober man in so faras that knowledge is relevant for the jpurpose of determining hisintention.
What is the knowledge referred to ? In the first case it is tkeknowledge specified in the Code as the essential element of thecrime. In the second case it is the “ knowledge of the nature andconsequences of the act.” The law does not allow the drunkardto say that owing to his intoxication he did not know that aparticular stab with a particular instrument would be likely tocause the death of a human being. But if in fact the degree ofintoxication was such that the man imagined that what he wasstriking was not a man but a log, proof of this circumstance wouldnot be excluded. On the contrary it would be the very strongestevidence that the man had formed no murderous intention.
Subject to the qualifications above explained, the questionr whether an intoxicated person is guilty of murder depends uponwhether he has formed what I may describe as a murderousintention. That is a question of fact. For the purpoee ofdetermining that question of fact the jury must attribute to himthe knowledge of the nature and consequences of his act thatwould be attributed to a sober man. If they consider that thedegree of intoxication was Buch that he could not have formed amurderous intention or any intention at all, they must acquit himof murder and consider the question of culpable homicide. For thepurpose of that question they must attribute to the accusedwithin the limits above explained the knowledge of a sober man.The law will not allow the accused to disclaim that knowledge,and if they come to the conclusion that a sober man in the prisoner’sposition would have known that he was likely to by his act to causedeath, they must convict him of culpable homicide. This is
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subject to the special case dealt with by paragraph 14 Fourthly ”of section 294, and also Subject to the four exceptions enumeratedunder the same section.
Per Garvin A. J.—The imputation of knowledge authorized byseotion 79 should be confined to those cases in which knowledgeand intention are specifically stated in the alternative as elementsof an offence.
Paragraph “ Fourthly *’ of section 294 of the Penal Code appliesonly to cases in which without any definite intention to injurea person deliberately takes the risk of inflicting death. The words,“ without any excuse! &c.}” are intended to except such cases aswhere a military officer lawfully fires upon a mob, or where thecaptain of a vossel takes the risks contemplated in section 74.
Apart from this special case and apart from the special excep.tions enumerated under section 294, culpable homicide, asdistinguished from murder is a question of knowledge; murderis a question of intention.
The King v.'Rengasamy
T
HIS case was referred to a Bench of three Judges undersection 355 of the Criminal Procedure Code by Bertram C.J.
by the following order :—
On May 9, 1924, at the Kandy sessions, one Krishnen Bengasamywas convicted of murder and sentenced to death. He committed thecrime when in a state of drunkenness. I directed the jury withreference to the »v»ning of section 79 of the Penal Code, and I informedthem that in my own opinion the effect of that section was as follows:namely, that where an act done is not an offence unless done with aparticular knowledge or intention, the law imputes to a man who doesthe act in a state of intoxication the knowledge of a sober man. Itdoes not impute to him any particular intention. It leaves the questionof intention at large. In all such cases it is a question for the jurywhether the degree of the intoxication was such that the accused wasincapable of forming any definite murderous intention. I pointed outto them that a drunken man is not necessarily incapable of forming anintention. In some cases he may be incapable, in other cases he maynot. In a case of murder the law will not allow an offender to saythat owing to his intoxication he did not know that the act which hewas committing was likely to cause death. But whether he did fromany particular intention is a question of fact for the jury. It may wellbe that he would not have entertained the intention which he in factentertained if he had not been drunk. But this merely means thatdrunkenness has affected his judgment.
In giving this direction to the jury, I assumed that the intentionof section 79 was to declare the law in the same sense as that in whichit was defined by Stephen J. in R. v. Doherty cited in Oour, Penal Lawof India, 2nd ed., p, 514 :—
“ Although you cannot take drunkenness as an excuse for crime,yet when the crime is such that the intention of the partycommitting it is one of its constituent elements, you maylook at the fact that the man was in drink -in consideringwhether he formed the intention necessary to constitute thecrime. If a sober man takes a pistol, or a knife, and strikesor shoots at someone else, the inference is that he intended
1 16 Cox C. C. 306.
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to strike or shoot him with the object of doing him grievousbodily harm. If, however, a man acting in that way wasdrunk you have to consider the effect of his drunkenness uponhis intention. In such a case a distinction of vital importanceoccurs. A drunken man may form an intention to killanother or to <lo grievous bodily harm to him or he may not;but if he did form that intention ho is just as much guilty ofmurder as if he had been sober."
I told the jury that in my own opinion in view of the repeated
and determined nature of the blows given to the murdered man, andin view of his immediate observation to a witness, “ I have killed one ;
I will kill another ” there was ample evidence from which they couldfind that the accused in fact had formed a murderous intention.
As I understand that one of my predecessors has interpretedsection 79 in a different sense, and as I have, from time to time, heardthat some perp^xity is felt as to the real meaning of the section, Ihereby reserve, as a question of law, for the consideration of threeJudges the question whether my direction to the jury was correct.
The obscurity of section 79 appears to arise from this circumstancethat the case which it proposes is a case where an act is not an offence-unless done with a particular knowledge or intention, but while itproceeds to impute a particular knowledge, it says nothing about theintention. My own suggested explanation of this circumstance is thatin determining whether or not a person had a particular intention,it may often be material to know what was his knowledge.
Akbar, A.S.-G. (with him Barber, C.C., and Dias, C.C.).—TheEnglish law cannot be applied in this case (see Kacheheri Mudaliyarv.Mohvmadu1).
Under section 78 of the Penal Code a man is not guilty wherehe has become intoxicated involuntarily. Section 79 goes on tospeak of voluntary drunkenness. The intoxication contemplatedin section 79 is the same degree of intoxication as that in section 78,that is to say, intoxication which renders the accused incapable ofknowing the nature of the act, or that he- is doing what is eitherwrong or contrary to law. The burden of proving that he was sointoxicated is, of course, on the accused. Once he proves thisintoxication, the effect of section 79 is this. Some of the offencesunder the Penal Code require intention, and intention alone—forexample, theft. In such cases intoxication will, as a result ofsection 79, negative intention, and therefore one of the elements ofthe offence of theft having disappeared, the accused must beacquitted. It is on this basis that the case reported in 17 N. L. R.96 was decided.
Then again, there are certain other offences where knowledge aloneis sufficient. The effect of section 79 is that intoxication makesno difference. For example, if a person is charged with voluntarilycausing hurt as defined in section 312, intoxication will be nodefence, because intoxication will negative intention, but will not
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The King v.Rengosomy
1 (1920) 21 N. L. R. 369.
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negative Knowledge, and, as under section 312 a man may have 1924.either intention or knowledge, the accused will not be able to plead The Kingintoxication as a defence.Rengaaamy
Now, if this test is applied to murder as defined in section 294,it will be noticed that the definition in section 294 is split up intofour -groups—the first three dealing with intention and the lostdealing with knowledge. So that, it is submitted, intoxicationwill have the same effect as in the case of ordinary hurt, that is to say,it will negative intention, but it will not negative knowledge, andthe case will fall within the fourth paragraph of section 294, and theaccused will still be guilty of murder.
The result would be the same if we apply section 79 in anotherway. Section 79 states that a man who commits an offence whichrequires a particular knowledge or intention is liable to be dealt withas if he had the same knowledge as he would have had if he had notbeen intoxicated. That is to say, in this particular case thisaccused is liable to be dealt with as if he had the same knowledgeas he would have had if he had not. been intoxicated. In otherwords, he must be presumed to have known all the circumstances ofthe case leading up to the death of the' deceased. So that if theaccused had used a lethal weapon being fixed with the knowledgethat he is using this lethal weapon, he mi :t be presumed to haveintended the natural consequences of his act, and therefore he wouldstill be guilty of the offence of murder.
It was on both these grounds that the Indian Court held in thecase reported in 38 Madp. 479, that the accused was guilty ofmurder.
The following authorities were also quoted:—Rex v. Beard, 89Law Journal (Q.B.) 437 ; 78 Law Journal (K.B.) 476; Ratanlal,p. 163 ; 29 Cal. 493 ; Ooury vol. p. 506,
Rajaratnam (with him Charles de Silva and Speldewinde).—Section 78 of the Penal Code refers to cases of advanced intoxica-tion, where a man is deprived of the consciousness of the moral orlegal character of his acts. Section 79, on the other hand, does notspecify the degree of intoxication, but leaves it to the Court todetermine from the facts of each case whether the accused wascapable of forming the requisite intention. So far as knowledgeof the nature of the act and its consequences is concerned, drunken-ness makes no difference under this section. It imputes theknowledge of a sober man to the accused, however drunk he mighthave been at the time he committed the act.
Intention is a conscious and voluntary act of the mind. Itconsists in desiring a particular result mid in formulating to oneselfthe physical means by which that result .is to be achieved. Themental decision and the physical act may'be momentary, but theabove factors must be present.
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1824. Knowledge, on the other hand, is a mere passive condition of theThe King v. mind. It may or may not be consciously present in the mindRengasamy at the moment the act is done.
Intention involves knowledge, and is frequently inferred from it.
In cases where knowledge of the nature of the act and itsconsequences is sufficient, drunkenness will afford no excuse. Forexample* in the cases contemplated in the fourth paragraph ofsection 294 of the Penal Code, such knowledge alone is sufficientto constitute murder.
This paragraph does not apply to all eases of homicide.It relates only to cases of extreme rashness and disregard ofhuman life. Illustration (d) under this section shows what wasintended by the framers of the Code. This is the only class of casesin which a man may be guilty of murder, even though he might nothave intended the death of his victim. In all other cases intentionis an essential requisite of murder under our Code.
Where knowledge is imputed' to the accused as a legal fiction,in ention should not be argued from it.
Counsel referred to Qora Chand Gopie's case1; King-Emperorv. BarkatuUah 2 ; King-Emperor v. Uga Tun Bow.®
June 2, 1924. Bertram C.J.—
The question submitted has proved to be one of great difficulty.We are all agreed that the direction to the jury was substantiallyright, and that in all cases of self-induced intoxication it is a questionof fact for the jury, whether the accused actually entertained theintention necessary to constitute the crime. But it has not beenpossible to enumerate with confidence any completely satisfactoryexplanation of the meaning of the section.
The Solicitor-General has suggested an alternative explanation.This explanation is, in fact, the theory to which I alluded in thereference. That theory, as I understand it, is as follows :—
Sections 78 and 79 cover the same ground. By “ intoxication ”in section 79 is intended the same degree of intoxication as isspecified in section 78, that is, intoxication so intense as whollyto obscure in the mind of the drunkard the nature, the morality,or the criminality of the act done. No other degree of intoxicationis the subject of any definite enactment of the Code. But withreference to this degree of intoxication, section 79 lays down aspecific principle for the purpose of certain classes of cases. Thesecases are the cases where the law requires a particular knowledgeor intent to constitute the crime. In these cases the law attributesto the drunkard an artificial state of mind. It imputes to him aparticular condition of knowledge, but regards him as being devoid
a Punjab Record 1887, 32.
8 13 Cr Law Journal 804.
1 3 W. B. 45
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of all intention. As the Solicitor-General first put it—it “ substi-taes knowledge for intention” : as he afterwards put it “ it eliminatesintention.” It calls upon us to deal with him, as though he hadno intention at all, but only a particular condition of knowledge.For this imputed condition of knowledge he is criminally responsible,and in so far as this condition of knowledge in the circumstances ofthe case would constitute a crime, he is liable to be punished, butnot further.
If, however, the degree of intoxication falls short of completeoblivion of the intellectual, the legal and the moral sense, thenseotion 79 does not apply. In such circumstances,' even on thistheory, the Solicitor-General agrees that it remains a simple questionof fqct for the jury, whether the accused actually entertained thenecessary criminal intention.
The Solicitor-General viewed the theory with frank distaste. Ashe expressed it, it requires prosecuting officers to deal with thehuman mind as though it was a puzzle. It has also this particularresult—which seems repugnant to all human justice—that under theparagraph “ Fourthly ” in section 294 (as the Solicitor-Generalseemed disposed to interpret it) it makes liable to be hanged a manwho had in fact entertained no murderous intention, simply on thebasis of a supposed condition of knowledge, which he had not in factpossessed, but which the law has artificially imputed to him.
Such is the theory suggested. It was in the hope of finallydissipating the mists of this theory that I made this reference to theCourt. It is a theory which, with all respect to those who aresaid to have favoured it, seems to me altogether too artificial to betolerable. I cannot believe that either Lord Macaulay or anyreviser of his work can- ever have intended to introduce into Indiaa legal principle so entirely without precedent or resemblance.
Before I examine this theory in the light of the words of thesection, I should like to deal with the Solicitor-General’s referenceto paragraph “Fourthly” of section 294. It is not actuallyincumbent upon us to interpret this paragraph, but inasmuch asthis paragraph (the only enactment in the Code in which the deathpenally is attached to knowledge alone) necessarily obtrudes itself•upon our attention, and inasmuch as it will assist us to determinethe problems under consideration if we acquire a clem' idea of thescheme of the Code as regards murder and culpable homicide,
think it would be well that we should address ourselves to theinterpretation of this paragraph.
In my opinion, this paragraph is not an enactment of generalapplication, but was designed to provide for a particular case, which,if unprovided for, would have left the Code incomplete. That casewas the case of a man who has no intention to injure anyone inparticular, but who deliberately takes a risk, which may involve theinfliction of death on some person or persons undetermined. A
im
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Bertram
c if-
The King v.Bengaaamy
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1924. typical example of this class of case is that of the man who fires orBertram charges with a motor car down a crowded street. The object ofC.J. . this provision is very fully discussed in Gowr, Penal Law of India,PheKing v ^1343-1345. Dr. Gour expresses the opinion that
. Rengashmy though the enactment was designed to meet this particular class ofcase, its application ought not necessarily to be confined thereto,and instances the case of a mother exposing her infant child as acase to which the words of the enactment appropriately extend.
I quite agree. Another case which has recently come within myown experience, and to which the words of the enactment appro*priately apply, is that of a man, who without any definite intentionto injure, but out ot pure bravado and insolence discharges a gunin the direction of a man with whom he is engaged in altercation.Making allowance for these cases, I am of opinion that the sectionapplies only to cases in which without any definite intention toinjure, a person deliberately takes the risk of inflicting death. Thewords “ without any excuse, &c.,” are intended to except such cases,as where a military officer lawfully fires upon a mob, or where thecaptain of a* vessel takes the risks contemplated in section 74.In my opinion juries should be told that this enactment should beconfined to that class of cases, and that in ordinary cases it shouldbe left out of consideration.
If this is not done, the whole scheme of the Code is distorted.It can never have been intended that juries should be told thatif the act committed is merely dangerous, they should find theaccused guilty of culpable homicide, but that if it was “ imminentlydangerous ” they should find him guilty of murder, or that if heknew that the act was “ likely to cause death ” they should find himguilty of culpable homicide, but that if he knew that it “ mustin all probability cause death ” they should find him guilty ofmurder.
On the other hand, if the paragraph is eliminated and taken asapplying to a special case, the whole scheme of the Code is clear andsimple. Apart from this special case and apart from the specialexceptions enumerated under section 294, culpable homicide, asdistinguished from murder, is a question of knowledge ; murder isa question of intention. Knowledge is not necessarily conscious.A man may know a thing though he may not have it in his mind..Intention, however, is a conscious act. It is something presentto the mind at or before the moment at which the act intended isdone.
Let us now examine the suggested theory in the light of section79. I do not agree that the “ intoxication ” there referred to meansintoxication of the same degree as that defined in section 78. Itcovers intoxication of any degree whatever. Nor can I see any-thing in the section which either “ eliminates intention ” or
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substitutes knowledge for intention.1’ The section, as I under-stand it, is intended to deal with two classes of cases :—
(а)Oases in which knowledge is an essential element of the crime.
(б)Cases in which intention is an essential element of the crime.
In the first of these cases, it imputes to the drunkard theknowledge of a sober man. In the second of these cases it alsoimputes to the drunkard the knowledge of a sober man, in so far asthat knowledge is relevant to his intention. To put the second casein another way : it often happens that for the purpose of determininga man’s intention, it is material to know his knowledge. In such acase for this purpose the section attributes to the drunkard the«knowledge of a sober man.
In both these cases, the state of the accused’s knowledge is ormay be relevant—in the first case, directly relevant; in the secondcase, indirectly relevant as throwing light on his actual intention.In both these cases the law imputes to him the knowledge of a soberman, and does not allow him to disclaim that knowledge.
But what is the “ knowledge ” which is referred to ? In the firstcase, the answer is clear. The knowledge referred to is “ a particularknowledge,” that is to say (as the Burma case puts it), a specifiedknowledge. The knowledge meant is the knowledge specified in theCode as the essential element of the crime. But what about thesecond case ? In that case the Code does not specify any knowledgebut only an intention. Is the scope of the “ knowledge ” in this caseunrestricted ? Does it extend to and negative every incidentaldelusion of fact which the drunkard in his disordered condition mayentertain ? I do not think so. In my opinion the “ knowledge ”meant, is the knowledge which is the subject of discussion inthe connected -sections, namely, " knowledge of the nature andconsequence of the act.” The law does not allow the drunkenman to say. that owing to his intoxication he did not know that aparticular blow or a particular stab with a particular instrumentwould be likely to cause the death of a human being. But if in factthe degree of intoxication was such that the man imagined thatwhat he was striking was not a man but a log, proof of thiscircumstance would not be excluded. On the contrary, it would bethe very strongest evidence that the man bad formed no murderousintention.
The Solicitor-General put to me the objection that this interpreta-tion might have the result that in a particular case an artificialknowledge might be imputed to a man, and that thereuponirresistible logic might lead to the imputation of an artificial intention,and that thus a man might be hanged on the basis of a knowledgeand an intention which be did not in fact possess. I think, however,that if the word “ knowledge ” is interpreted as I have interpretedit in the last paragraph, the risk of such a contingency is reduced
Bertram
C.J.
The King v.Rengasamy
1984.
Bertram
C.J.
The King v.Rengaaamy
( 446 )
to a minimum, if it is not altogether eliminated. There is certainlyone case in which a capital verdict may rest and may rightly rest-rupon an imputed knowledge. It is the special case provided for byparagraph “ Fourthly ” of section 294. The law will not allow adrunken man who fires down a crowded street to plead that owingto his intoxication he did not know that the act “was so imminentlydangerous that it must in all probability cause death.” I seenothing necessarily repugnant to justice in this conclusion.
Other means of escaping from the difficulty of the Section havebeen suggested. One is based upon theword “ liable. ” -The sugges-tion is that the expression “ shall be liable to be dealt with ’* has notthe same meaning as if the words had run “ shall be dealt with.”It is suggested that the words were intended to give the Court-or jury a latitude to deal with the offender according to theirdiscretion according to the circumstances of the case. I do notthink that this is a possible interpretation. It would be contraryto all established principles to leave a capital sentence to thediscretion of a Court or jury. The issues for the Court or juryunder such circumstances must be “ clean-cut,” and it is impossiblethat the framers of the Code could have intended otherwise.
Another suggestion was that made by my brother Garvin in thecourse of the argument. He drew attention to the fact that thereare certain sections of the Code in which knowledge and intentionare specifically stated in the alternative as elements of an offence.See in particular section 313. He suggested that it was intendedthat section 79 should apply to these cases only, and that in suchcases the meaning is that in such cases an intoxicated person isliable to be dealt with under the first of the alternatives. I cannotbelieve that the section was intended to have so restricted anapplication. I can see no reason why it should not be held to applyto cases in which knowledge alone is stated as an essential elementin the crime.
Another point raised in the course of the argument was that theinterpretation which I have proposed means that we are applyingEnglish law to the case, and it has been ruled in a recent decisionin KachcheriMudaliyar v. Mohomadu (supra) that there is no justifica-tion for holding that English law applies where our ownCode is silent.In adopting this view, however, we are not adopting English law,we are simply interpreting the Code. The Code specifies a particularintention as a. necessary element of certain crimes. That questionis a question of fact for the jury, and we declare that in determiningthat question the jury may take into account all relevant considera-tions including the drunkenness of the accused. The fact that thisconclusion is in harmony with the conclusions of English law isno objection to its adoption here.1
This interpretation of the section is entirely in harmony with thegeneral scheme of the Code with reference to murder and culpable
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homicide. Subject to the qualifications above explained, the ques-tion whether an intoxicated person is guilty of murder dependsupon whether he has formed what I may describe as a murderousintention. That is a question of fact. For the purpose of deter-mining that question of fact, the jury must attribute to him theknowledge of the nature and consequences of his act that wouldbe attributed to a sober man. If they consider that the degree ofintoxication was such that he could not have formed a murderousintention or any intention at all they must acquit him of murder,and consider the question of culpable homicide. For the purposeof that question they must attribute to the accused, within thelimits above explained, the knowledge of a sober man. The lawwill not allow the accused to disclaim that knowledge, and if theycome to the conclusion that a sober man in the prisoner’s positionwould have known that he was likely by his act to cause death,they must convict him of culpable homicide. This is subject to thespecial case dealt with by paragraph “ Fourthly ” of section 294,and also subject to the four exceptions enumerated under thesame section.
On this fuller consideration of the subject, I am satisfied that thedirection given to the jury was substantially correct, and that thejudgment and sentence should be confirmed.
1924.
Bertram
C.J.
The King v.Rengasamy
De Sampayo J.—
I agree with the judgment of the Chief Justice.
Gabvin A. J.—
After careful consideration I have come to the same conclusionas to the direction to be given to a jury in cases of self-inducedintoxication. I am inclined, however, to take the view that theimputation of knowledge to a person in a state of intoxication,which section 79 authorizes us to make, should be limited to theone class of acts which are declared to be offences, whether they bedone with a particular intention or alternatively with a particularknowledge. This view appears to me to be in strict accord withthe language of section 79 and to conform generally to the schemeof the Penal Code.
Where an act is declared to be an offence only when it is doneintentionally, there seems to be no point in imputing knowledgeto the doer of the act, since knowledge in the absence of intentiondoes not, and can not, make the act a punishable offence. I can-not believe that section 79 contemplated that in such cases theknowledge of a sober man might be imputed to a person in a stateof intoxication with a view to basing upon it an inference of intentionfrom the knowledge so imputed. This would be to pass from anartificial imputation of knowledge to an artificial imputation ofintention.
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Garvin A.J.
Th e King v.Rengasamy
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Where intention is the essence of the offence, it is a pure questionof fact whiojh a jury is free to determine untramelleA by anyartificial rules upon a consideration of all the facts and circumstancesof each case. The degree of intoxication of the person chargedis a circumstance which can and should be taken into consideration!This matter of intention, being a pure question of fact, as indeedit is under the English law, it is I think competent for us to referto the English cases for guidance where guidance is necessary.
In the very few instances in which a particular knowledge andnot a. particular intention is essential before an act is punishableas an offence, whether or not the doer of the act possessed thenecessary knowledge is a question of fact, and must be determinedaccordingly. It is, I think, desirable to add that where the prosecu-tion has established a prima facie case, it is for the person charged,if he relies on intoxication as a defence, to satisfy the jury that hehad reached a state of intoxication which rendered him incapableof forming the required intention, or to prove facts or point tocircumstances which are necessarily sufficient to raise a real doubtin the minds of the jury as to his capacity to form the intentionimputed to him in the charge.v
I agree with my Lord that paragraph “ Fourthly ” of section 294,which is the only provision which contemplates a verdict of murderin the absence .of specified intention, should in its application belimited in the manner suggested by'him.
Judgment and sentence confirmed.
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