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TEPILNS.

1884.

formal ending of the speciul verdict, as entered upon the record, was not found by the jury, but subsequently addel, and therefore Dudley and invalidated the record, rendering the trial abortive; also, that the record ought to have been brought up into the Queen's Bench

Division by certiorari, and not by mere order of the court. Held, that the facts as found afforded no justification for the Murder

killing of the boy, and that the prisoners were guilly of wilful Justifiable murder.

Necessity of Held, also, that the acldition of the formal ending of the special hunger

verdict was matter of mere form, and did not invalidate the Special verdict.

record. Held, further, that the record was rightly brought up by order,

and not by certiorari, since by the Judicature Act the courts of oyer and terminer and gaol delivery were made part of the High Court of Justice.

THE

Richard Parker on the 25th day of July, 1884, on the high seas, within the jurisdiction of the Admiralty of England. They were tried at the winter assizes at Exeter on the 6th day of November, 1884, before Huddleston, B., when, at the suggestion of the learned judge, the jury returned a special verdict, setting out the facts, and referred the matter to the court for its decision. The learned judge thereupon adjourned the assizes at Exeter to the Royal Courts of Justice in London until the 25th day of November, and further adjourned them until the 4th day of December.

The court, as above constituted, sat as a Divisional Court of the Queen's Bench Division (sect. 26 of the Judicature Act, 1873) to hear the case, and the prisoners were ordered to be present. The record of the proceedings was brought up by an order of the court, and read.

The record, after setting out the commission and the indict. ment against the prisoners, concluded with the following special verdict:

The jurors, upon their oath, say and find that, on the 5th day of July, 1884, the prisoners, with one Brooks, all able-bodied English seamen, and the deceased, also an English boy, between seventeen and eighteen years of age, the crew of an English yacht (a registered English vessel (a)], were cast away in a storm on the high seas, 1600 miles from the Cape of Good Hope, and were compelled to put into an open boat [belonging to the said yacht (a)]. That in this boat they had no supply of water and no supply of food, except two llb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day, when the act now in question was committed. That on the twelfth day the remains of the turtle were entirely consumed, and for the next eight days they had nothing to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was drifting on the ocean, and it was probably more than a thousand miles away from land. That on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested that someone should be sacrificed to save the rest, but Brooks dissented, and the boy to whom they were understood to refer was not consulted. That on the

(a) The words in brackets were by consent struck out during the argument. VOL. XV.

S S

REG. 24th day of July, the day before the Act now in question, the prisoner Dudley pro

posed to Stephens and to Brooks that lots should be cast who should be put to death DUDLEY AND to save the rest, but Brooks refused to consent, and it was not put to the boy, and STEPHENS. in point of fact there was no drawing of lots. That on that day the prisoners spoke

of their having families, and suggested that it would be better to kill the boy that 1884. their lives should be saved, and the prisoner Dudley proposed that if there was no

vessel in sight by the morrow morning the boy should be killed. That next day, the Murder- 25th day of July, no vessel appearing, Dudley told Brooks that he had better go and Justifiable have a sleep, and made signs to Stephens and Brooks that the boy had better be homicide killed. The prisoner Stephens agreed to the act, but Brooks dissented from it. That Necessity of the boy was then lying at the bottom of the boat quito helpless, and extremely

hunger weakened by famine and by drinking sea water, and unable to make any resistance, Special verdict, nor did he ever assent to his being killed. The prisoner, Captain Dudley, offered a

prayer, asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. That the prisoner Dudley, with the assent of the prisoner Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there. That the three men fed upon the body and blood of the boy for four days. That on the fourth day after the act had been committed, the boat was picked up by a passing vessel, and the prisoners were rescued still alive, but in the lowest state of prostration. That they were carried to the port of Falmouth, and committed for trial at Exeter. That, if the men had not fed upon the body of the boy, they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine. That the boy, being in a much weaker condition, was likely to have died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That under the circumstances there appeared to the prisoners every probability that, unless they then fed, or very soon fed, upon the boy or one of themselves, they would die of starvation. That there was no appreciable chance of saving life except by killing someone for the others to eat. That, assuming any necessity to kill any body, there was no greater necessity for killing the boy than any of the other three men.

But whether upon the whole matter aforesaid by the said jurors in form aforesaid found the killing of the said Richard Parker by the said Thomas Dudley and Edwin Stephens done and committed in manner aforesaid be felony and murder or not the said jurors so as aforesaid chosen, tried, and sworn, are ignorant, and pray the advice of the court thereupon. And if upon the whole matter aforesaid by the said jurors in form aforesaid found the court shall be of opinion that the aforesaid killing of the said Richard Parker in manner aforesaid done and committed be felony and murder, then the said jurors on their oath say that the said Thomas Dudley and Edwin Stephens are each guilty of the felony and murder aforesaid in manner and form as in and by the indictment aforesaid above specified is against them alleged. And if upon the whole matter aforesaid by the said jurors in form aforesaid found the court shall be of opinion that the aforesaid killing of the said Richard Parker in manner aforesaid done and committed be not felony and murder, then the jurors aforesaid on their oath aforesaid say that the said Thomas Dudley and Edwin Stephens are not guilty of the felony and murder aforesaid in manner and form as in and by the said indictment above specified is against them alleged. And if upon the whole matter aforesaid by the said jurors in form aforesaid found the court shall be of opinion that the killing of the said Richard Parker in manner aforesaid done and committed be felony and manslaughter, thea the said jurors on their said oath say that the said Thonias Dudley and Edwin Stephens are each guilty of the felonious killing and slaying of the said Richard Parker. And if upon the whole matter aforesaid by the said jurors in form aforesaid found the court shall be of opinion that the aforesaid killing of the said Richard Parker be neither felony and murder nor felony and manslaughter, then the said jurors on their oath say that the said Thomas Dudley and Edwin Stephens are not guilty of the promises in the indictment specified and charged upon them.

Collins, Q.C. (H. Clark and L. E. Pyke with him), for the prisoners, took (among others) the following preliminary objections : First, the words in the record, “a registered English vessel,” and “ belonging to the said yacht," ought to be struck out, as they were not in the special verdict as found by the jury. [Sir H. James (A.G.)—I admit that these words were not in the verdict as given by the jury, but they were added from the

V. DUDLEY AND STEPHENS.

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learned judge's notes. I do not think they are material, and will Reg. consent to their being omitted.

The Court, by consent, ordered the words to be struck out.
Collins, Q.C.-The next objection is that the formal ending of

1884. the special verdict, as entered on the record, was no part of the special verdict found by the jury. The verdict found by the jury Murderended with the words “ the said jurors aforesaid chosen, tried, Justifiable

homicide and sworn, are ignorant, and pray the advice of the court there

Necessity of upon.” All the subsequent part has been added since. It is hunger part of the verdict, and there are a number of special verdicts Speciál verdict. which the jury signed, or counsel for the Crown signed, containing this formal part. There was really no finding by the jury of "guilty” or “ not guilty ” upon the facts stated in the special verdict. If this ending is not struck out, in reality the judges will find them guilty or not guilty upon the special facts found by the jury. In the case of Rex v. Chetwynd (18 Sta. Tr. 218) the jury signed the special verdict. The jury have not agreed to this finding, and consequently the whole trial is abortive. [HUDDLESTON, B.-If you look at Leach's Crown Cases you will see numerous cases, all of which conclude in this way. It is a purely formal ending, which the jury intended. For instance, in Rex v. Pedley (1 Leach's C. C. 242) the verdict ends with the words, " But whether, upon the whole of these facts, the prisoner is guilty of the offences charged in the indictment, the jury submit to the court." DENMAN, J.-In the case of Rex v. Oneby (2 LI. Raym. 1845), the special verdict ends in this way.]

Sir H. James (A.G.) for the Crown.-The record in Rex v. Hazel (1 Leach's C. C. 368) has been followed exactly in this

These words are in every special verdict, and the jury having submitted to the court, it is never put to them whether they propose to obey the court in returning their verdict or not. It is the natural intendment from their submission to the court. Sir Michael Foster, in his Crown Law, 3rd edit., p. 255, says: In every case where the point turneth upon the question whether the homicide was committed wilfully and maliciously, or under circumstances justifying, excusing, or alleviating the matter of fact, viz., whether the facts alleged by way of justification, excuse, or alleviation, are true, is the proper and only province of the jury. But whether, upon a supposition of the truth of facts, sach homicide be justified, excused, or alleviated, must be submitted to the judgment of the court; for the construction the law putteth upon facts stated and agreed, or found by a jury, is in this, as in all other cases, undoubtedly the proper province of the court." He referred to Rex v. Oneby (2 Ld. Raym. 1485) and Rex v. Mackalley (5 Co. Rep. 111). (Lord COLERIDGE, C.J.–To my view it is wholly immaterial, and is mere form. The jury could not, having found the facts, find verdict contrary to the law. They have found the facts, and the court is to give judgment upon the facts.]

Sir H. James then moved that the record be filed.

case.

REG.

DODLEY AND
STEPHENS.

Collins, Q.C. objected that the record ought to have been brought into this court by certiorari, and not by an order of the court. [Lord COLERIDGE, C.J.-The Courts of Assize are part of

the High Court now by sect. 16 of the Judicature Act, 1873, 1884.

and the record has been brought from one part of the court to Murder- another.] Justifiable Sir H. James, A.G. (Charles, Q.C., C. Mathews, and Danckhomicide Necessity of

werts with him) for the Crown.-Upon the merits of the case the hunger

killing of the boy Parker, in the manner and under the circumSpecial verdict. stances stated in the special verdict, was murder. Taking the

facts in the special verdict in the light most favourable to the prisoners, it may be taken that, when Parker was killed, the prisoners believed that if they did not feed upon him they would die, and it may be taken that, if they had not done so, they would not have outlived the four days till they were rescued, and that the boy would have died before any relief came. But, on the other hand, at the time the prisoners took the life of the boy there was a chance of his being saved, and they deprived him of that chance. That being so, and separating this case from the question of men acting under legal process or acting in course of warfare, this proposition is a true one: That where a private person, acting upon his own judgment, takes the life of a fellowcreature, that taking away intentionally of a fellow-creature's life can be justified on one ground only, that is, self-defence—se et sua defendendo; and it must be self-defence against the acts of the person whose life is taken, for the life of a third innocent person must not be taken to save one's own from the act of the aggressor. [HUDDLESTON, B.-A man sees that a great crime is about to be committed by another with a deadly instrument, and he interferes and takes the life of the man with the deadly instru. ment, surely that would be justifiable ?] That case falls within the spirit of the proposition mentioned above. Now, it must be admitted that, if a mau be dying of hunger, he must not steal food in order to satisfy that hunger; if he did he would be guilty of theft. If, then, this boy owned and had in his possession food, and if the prisoners had taken it from him, they would have been guilty of larceny; and if they had killed him, in order to obtain it, they would have been guilty of murder and larceny. Can it be said, then, that a man who cannot steal food, or commit murder to obtain it, can take human life in order to obtain the food of which the body is composed ? Yet that must be the other side's contention. The great authorities-Hale, Hawkins, Sir Michael Foster, and East--all concur in the view that no necessity of hunger will justify the killing of a man.

Lord COLERIDGE, C.J. - The proposition that this is not murder is so entirely novel, and the present impression of our minds so clear, that we think we had better hear what Mr. Collins has to say upon the point.

Sir H. James.-It would be convenient now to refer to the case of the seven Englishmen mentioned by Baron Puffendorf in his

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Law of Nature and Nations, book ii., c. 6, sect. 3 (p. 203).

Reg. [HUDDLESTON, B.-A member of the Bar (Sir Sherston Baker) DUDLEY AND has found the case referred to at the British Museum, in a

STEPHENS. medical work of a Dutch writer, Nicolaus Tulpius, and he has

1884. given me a copy of it. (a)] That case, as now investigated, shows that it is no authority at all in support of the prisoner's Murdercontention.

Justifiable

homicide A. Collins, Q.C. (H. Clark and L. E. Pyke with him) were heard

Necessity of to argue for the prisoners.

hunger Lord COLERIDGE, C.J.-We need not trouble you, Mr. Attorney- Special verdict. General, to reply, as we are all of opinion that the prisoners must be convicted. What course do you invite us to take as to giving judgment ?

Sir H. James (A.G.).—The proper course is for this court, where the case has been heard to its conclusion, to pronounce judgment and pass sentence, and not to send the case back to the assizes for sentence to be passed there. The record is filed in this court, and this court has possession of it. In former days

(a) The following is the copy as furnished to Huddleston, B., and which, by Sir Sherston Baker's leave, is given here:

General facts as stated by a Dutch writer, Nicolaus Tulpius. He was the author of a Latin work, “ Observationum Medicarum,” written at Amsterdam in 1641. He states that the following facts were given him by eye witnesses : Seven Englishmen had prepared themselves in the island of St. Christopher (one of the Caribbean islands) for a cruise in a boat for a period of one night only, but a storm drove them so far out to sea that they could not get back to port before soventeen days. One of them proposed that they should cast lots to settle on whose body they should assuage their ravenous hunger. Lots were cast, and the lot fell on him who had proposed it. None wished to perform the office of butcher, and lots were again cast to provide one. The body was afterwards eaten. At length the boat was cast ashore on the Isle of St. Martin, one of the same group, where the six survivors were treated with kindness by the Dutch, and sent homo to St. Cbristopher.

The principal passages in the original are as follows : " Horribilis illa tragædia quam non ita pridem conspexit India occidentalis in septem Britannis ; quibus necossitas famem fecit undecim dierum. Velut pobis sincero relatum a testibus occulatis qui bæc ipsa ventorum ludibria et humaniter naribus suis excepêre, et officiosè ad suos reduxêre. Septem Britanni accinxerant se in insulâ Christophorianâ, unius solummodo noctis itineri, ultri quam etiam non extenderant commeatum. At interveniens tempestas abripuit imparatos longius in mare quam ut potuerint rererti ad portum destinatum ante diem septimum decimum . ... Cujus intracti erroris, nullum finem promittento spatioso mari, adigebantur tandem (O durum necessitatis telum!) ancipiti sorti committere, cujus carne urgentem fameffi, et quo sanguine compescerent inexplebilem sitim. Sed jacta alea (quis eventum hunc non miretur!) destinabit primæ cædi primum hujus lanienæ auctorem ....

.. Quâ oratione ut non parum lenivit horrendi facinoris atrocitatem, sic erexit utique usque eò flaccidos ipsorum animos: ut tandem reperiretur aliquis, sorte tamen priusductus qui petierit animose perorantis jugulum, et intulerit vim volenti. Cujus cadavoris expetiit quilibet illorum, tam præproperè frustrum, ut vix pot rit tam festinanter dividi

At tandem misertus hujus erroris Deus deduxit ipsorum naviculam ad insulam Martiniam in quâ à præsidio Belgico et humaniter excepti, et benignè ad suos reducti fuêre. Sed vix attigerant terram quin accusarentur protinus a prætoro homicidii. Sed diluente crimen inevitabili necessitato, dedit ipsis brevì veniam ipsorum judex.

To understand the account we must notice that Tulpius says this shocking incident occurred non ita pridem," not so long ago." He wrote in 1641. The sailors, on their return from St. Martin (about seven leagues away) were arrested by some executive officer (a prætore), probably the constable, and their own judgo” (ipsorum judex), that is, the English judge of the colony, as distinguished from the French judge on the same island, let them go, because “the inevitable necessity had washed away their crime."

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