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OXFORD AUTUMN ASSIZES, 1884.

Monday, Oct, 27, 1884.

(Before Mr. Justice LOPES.)

REG. v. Rose. (a)

Murder-Parricide in defence of motherReasonable belief of

necessity. Under circumstances which might have induced the belief that a

man was cutting the throat of his wife, their son shot and killed his father. On the trial of the son for murder : Held, that if the accused had reasonable grounds for believing and

honestly believed that his act was necessary for the defence of his mother, the homicide was excusable. THE prisoner was indicted for the wilful murder of his father

, John William Rose, at Witney, on the 27th day of September.

The material facts proved were as follows :—The prisoner, a weakly young man, of about twenty-two years of age, was at the time of the alleged murder living with his father, mother, and sisters at Witney. The father, who was a very powerful man, had recently taken to excessive drinking, and while in a state of intoxication was possessed with the idea that his wife was unfaithful to him. He had on more than one occasion threatened to take away her life, and so firmly impressed was she with the idea that these were no idle threats, that the prisoner's mother had frequently concealed everything in the house which could be used as a weapon.

On the night in question the family retired to their bedrooms, which were situated adjoining to one another, about nine o'clock. The deceased man appears to have immediately commenced abusing and ill-treating his wife, accusing her of unfaithfulness to him, and threatening to murder her. On several occasions she retired for safety to her daughter's room; on the last occasion her husband pursued her, and, seizing her, dragged her towards the top of the stairs, threatening to push her down. He then said he would cut her throat, left her, saying he was going to fetch the knife, which all the family seem to have known was in his room, and then rushing back seized his wife and forced her up against the balusters, holding her in such a position that

(a) Reported by REGINALD B. D. ACLAND, Esq., of the Oxford Circuit.

REG.

V Rose.

1884.

Parricide Reasonable belief of necessity.

the daughters seem to have thought he was actually cutting her throat. The daughters and mother shouted “murder," and the prisoner, running out of his room, found his father and mother in the position described. No evidence was given that the deceased man had any knife in his hand, and all the witnesses said that they did not see then or afterwards find his knife.

The prisoner fired one shot (according to his own account) to frighten his father, but no trace of any bullet could be found; and immediately after he fired another shot which, striking his father in the eye, lodged in the brain, and caused his death in about twelve hours. On his arrest the prisoner said, “ Father was murdering mother. I shot on one side to frighten him; he would not leave her, so I shot him.”

In cross-examination the deceased man's employer said that the prisoner's father was the strongest man he had ever seen, and the prisoner would not have had the slightest chance in a handto-hand encounter with him.

The defence set up was that the case was one of excusable homicide.

The Hon. F. Parker and A. Gwynne James were for the prosecution.

Montagu Williams and J. D. 8. Sim for the defence.

His LORDSHIP, in the course of his summing up, said : Homicide is excusable if a person takes away the life of another in defending himself, if the fatal blow which takes away life is necessary for his preservation. The law says not only in selfdefence such as I have described may homicide be excusable, but also it may be excusable if the fatal blow inflicted was necessary for the preservation of life. In the case of parent and child, if the parent has reason to believe that the life of a child is in imminent danger by reason of an assault by another person, and that the only possible, fair, and reasonable means of saving the child's life is by doing something which will cause the death of that person,

the law excuses that act. It is the same of a child with regard to a parent; it is the same in the case of husband and wife. Therefore, I propose to lay the law before you in this form : If you think, having regard to the evidence, and drawing fair and proper inferences from it, that the prisoner at the bar acted without vindictive feeling towards his father when he fired the shot, if you think that at the time he fired that shot he honestly believed, and had reasonable grounds for the belief, that his mother's life was in imminent peril, and that the fatal shot which he fired was absolutely necessary for the preservation of her life, then he ought to be excused, and the law will excuse him, from the consequences of the homicide. If, however, on the other hand, you cannot come to that conclusion, if you think, and think without any reasonable doubt, that it is not a fair inference to be drawn from the evidence, but are clearly of opinion that he acted vindictively, and had not such a belief as I have described

REG.

v. ROSE.

to you, or had not reasonable grounds for such a belief, then you must find him guilty of murder.

Verdict, not guilty. Solicitors for the prosecution, Dayman and Walsh, Oxford, for the Solicitor to the Treasury.

Solicitor for the defence, N. T. G. Ravenor Witney.

1884.

Parricide
Reasonable

belief of necessity.

HOUSE OF LORDS.

April 1, 3, and 4, 1884.

(Before the LORD CHANCELLOR (Selborne), Lords BLACKBURN,

Watson, and FITZGERALD.)

Tae JUSTICES OF MIDDLESEX v. The Queen. (a)

ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND.

Prisons Act, 1877 (40 f. 41 Vict. c. 21) - Superannuation

Compensation - Apportionment Superannuation Act, 1859

(22 Vict. c. 26)-Special minute. At the time of the coming into operation of the Prisons Act, 1877

(40 8. 41 Vict. c. 21), C. was the governor of a prison which had been under the control of the justices of M. as the local authority, but by the Act it was transferred to the Secretary of State for the Home Department. Shortly afterwards C., who was not incapacitated in any way, resigned his appointment in order to facilitate some improvements in the organisation of the prison, and the Commissioners of the Treasury granted him an annuity pursuant to sect. 36 of the Act, and apportioned it, in accordance with paragraph 4 of that section, between the county rates of M. and moneys to be provided by Parliament. No special minute within the meaning of sect. 7 of the Superannuation Act, 1859 (22 Vict. c. 26), was made or laid before Parliament with reference to 0.

or his office. Held (affirming the judgment of the court below), that, upon the

true construction of the Act, the commissioners had power to apportion the annuity as they had done, and that the provisions of the Act of 1859 as to a special minute were directory only,

(a) Reported by C. E. MALDEN, Esq., Barrister-at-Law,

and not a condition precedent to the granting of an annuity such The JUSTICES as that in question.

OF MIDDLESEX

THE QUEEN.

1884.

annuation.

TA
THIS was an appeal from a judgment of the Court of Appeal

(Brett, M.R., Lindley and Bowen, L.JJ.), reported ante, p. 347, and 49 L. T. Rep. N. S. 614, affirming a judgment of Prisons Act, the Divisional Court (Field and Stephen, JJ.), reported in 1877Super48 L. T. Rep. N. S. 480, upon a special case.

The special case is set out in the reports in the court below. The question arose upon a rule calling upon the justices of Middlesex to show cause why a writ of mandamus should not issue commanding them to pay to Col. Colvill the proportion of the pension awarded to him

as the late governor of the Coldbath Fields Prison, which had been charged upon the county rates under sect. 36 of the Prisons Act, 1877 (40 & 41 Vict. c. 21).

A special case was afterwards stated for the opinion of the court, who held that the justices were liable, and their decision was affirmed as above mentioned.

This appeal was then brought by the justices.
R. S. Wright and Hannen appeared for the appellants.

The Attorney-General (Sir H. James, Q.C.), the Solicitor-
General (Sir F. Herschell, 'Q.C.), and Danckwerts, for the Crown.

The argument turned entirely upon the wording of the sections of the Act, and appears sufficiently from the judgment of their Lordships.

At the conclusion of the arguments, their Lordships gave judgment as follows :

The LORD CHANCELLOR (Selborne).-My Lords: Perhaps it may be convenient that your Lordships' attention should first be directed to the last point which has been raised under sect. 7 of the Act of 1859, because, if that point were tenable, it would be entirely fatal both to the grant of this pension to the officer now immediately concerned, and, so far as I can judge, to all the grants which have been made to any officers of the same classa most serious consequence. If your Lordships were obliged to arrive at that result nobody can tell how far-reaching it might be in its operation and effect as to other cases also ; and it would be certainly most unwillingly that your Lordships would adopt that view, not only bearing in mind those consequences, but also bearing this in mind, that though the point does not seem to have been lost sight of either when the special case was settled, or when the argument took place before the Court of Appeal, yet it was one which the justices are obviously, and for reasons creditable to themselves, most unwilling to press, which they rather endeavoured to use as putting a kind of compulsion upon the court to yield to their views upon a totally different point, and therefore it was rather a subsidiary portion of their argument than the main fundamental ground of it, and yet it is evident that if the objection is tenable it is a fundamental objection. Now,

1884.

THE JUSTICES after consideration, and bearing what has been said on both or MIDDLESEX sides, your Lordships I think are agreed that you may safely hold THE QUEEN. what is said here about the necessity of a special minute to be

directory, and not in the nature of a condition precedent on

which the validity of the grant must essentially depend, and I Prisons Act, may add I think directory for reasons which do not apply to 1877Super- anything which has been actually granted in the present case, or annuation.

in any case exactly like it, but would apply to any excess beyond that which in the present case has been granted. I cannot but refer upon this subject to what appears in the documents which are part of the special case as to the practice of the Treasury. This particular grant was announced, not alone, but with other grants under the Prison Act of 1877, by a Treasury letter addressed to the Secretary of State on the 2nd Aug. 1878, in which the Under-Secretary, or the proper officer of the Treasury, writes : “I am directed by the Lords Commissioners of Her Majesty's Treasury to acquaint you, for the information of the Secretary of State, that my Lords have been pleased to award to the prison officers mentioned over leaf, the pensions set against their respective names, apportioned between the rates out of which their salaries were payable immediately before the 1st April, 1878, and moneys voted by Parliament, and I am to state that my Lords have directed the Paymaster-General to pay the portions of the pensions payable out of voted moneys from the dates specified in each case.And, some correspondence having followed with the county officers, there is a subsequent letter on the 9th day of January, 1879, from the Treasury to the Secretary of State, in which this is said: “The letter announcing the pension is the only evidence of the action of the board in granting it which has ever been given, or, as my Lords believe, has ever been asked for since pensions began to be granted. The Comptroller and Auditor-General, an authority not open to the charge of being too easily satisfied, accepts these Treasury letters as sufficient vouchers for all pensions payable out of public moneys.

It is not immaterial to notice that when pensions of a special character are to be granted, the Legislature has provided that copies of the minutes granting such pensions shall be laid before Parliament. Such an express provision, coupled with uniform practice from the time of this statute (22 Vict. c. 26), not to mention the earlier statute of 1834 which it partly embodies, sufficiently proves that the intention of the Legislature was to leave the Treasury to settle the routine of procedure in other cases. The Prison Act of 1877 contains no directions to the Treasury as to the process of awarding pensions, beyond such as may be gathered from the word 'award' in sect. 36 read in connection with the Superannuation Act of 1859, to which

my Lords are referred for certain purposes in that same section. "My Lords consider that it would be a very serious thing for a public department to depart from its procedure in the transaction of its business after so long a sanction by usage, nor

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