W. Comer Petheram, C.J.
1. (Beverley, J., concurring)--I think that this appeal must be dismissed, and for the reason that this is a finding of the jury with which this Court has no power to interfere, and that if the verdict of the jury is correct, and I must take it to be correct, because, as I have just said, I have no power under the circumstances to interfere with it, the punishment which has been inflicted on the prisoner for killing this man is not too great.
2. The case comes before us in a way which discloses a state of things as to the mode in which trials by jury are conducted in this country, that is much to be deprecated, and in what I say now I am speaking for myself alone--I do hope that Judges in explaining the law to juries in cases in which juries are to act will take more pains in explaining the sections of the Code, and not leave the Code to the juries for them to find out the meaning of it themselves.
3. I think that in this case there is a possibility, I will not say probability, that there has been a miscarriage of justice, and if there is, as I think there is this possibility, it arises from the fact that the Judge did not sufficiently explain the law to the jury, and my reason for thinking that there is a possibility of a miscarriage of justice in this case, is, that the Judge in his charge to the jury shows that he had come to the conclusion that the evidence for the prosecution was to be taken as a whole, and that the only thing for the jury to do, if they disbelieved it as a whole, was to acquit the prisoner. The jury did not take that course. They found a verdict which showed that they disbelieved the evidence for the prosecution in certain parts as to which they thought the witnesses were committing perjury, and they say that story is untrue, but they accepted that evidence in other parts, and convicted one of the prisoners upon it. The charge of the Judge shows that that was unsafe, and, speaking for myself, I quite agree with him. I think it absolutely unsafe to take the story of certain witnesses which is shown to be perjured as to a portion and to accept their statements and act upon it. Therefore I think that in this particular case, on the Judge's own view, there is a miscarriage of justice, but as I said before I am not able to interfere on that ground, because the Code gives us no power to interfere with the verdict of a jury in cases where there is evidence to go before them, and in this case there was evidence to go before them.
4. Then the question is, how far that state of things arose from the fact of the law being insufficiently explained to the jury by the Judge. As the charge was originally drawn against these two men, it was a charge of inflicting injury which either amounted to homicide or grievous hurt, and there was no question before the Judge as to there being any provocation on either of those charges, and the Judge charged the jury from the point of view that they would convict on one of those charges taken simply, and practically his charge amounted to this : These are the two matters in respect of which these men are being tried, and it will be for you to say whether you believe the evidence for the prosecution. If you do, you must convict the prisoners, but if, on the other hand, you do not believe that evidence, you must acquit them--; and the only matter before the jury was the question of these two substantive charges taken simpliciter without any question of mitigating circumstances. It appears, so far as the prisoner before us is concerned, that the jury came in an uncertain state of mind, and they told the Judge that they could not say under what section the offence came. Now, upon that, I think the duty of the Judge was to have asked the jury what doubt they had as to the crime which had been committed, and if he had done that, he would have found that it was not a doubt as to whether the offence amounted to culpable homicide or grievous hurt, but a doubt under a totally different section which was not explained to them, as to whether if this man had inflicted hurt he did it under circumstances of grave and sudden provocation. If the Judge had asked that question he would have carried out his duty, and he would have been able to explain to the jury how it is that, in questions of this kind, the substantive offence would be affected by the qualifying clause of the next section. But he did nothing of the kind; instead of doing that, he simply gives the Penal Code to the jury in order that they may read it themselves and apply it in the best way they could. In doing that, I can only say, and I must say it here, that I think that the Judge did not do his duty. I think that it is the duty of a Judge to explain the law to the jury, and to tell them what offence the facts would prove against the prisoner if they believed them, and it is then for the jury to say whether, within the definition given by the Judge, the facts as proved constitute the offence. If the Judge had done that, I do not think that the complications would have arisen which have arisen in this case, and I think this case is a good illustration to show how very important it is that Judges should not leave the Code to the jury in this kind of way for them to read and interpret it for themselves, but as I said before they must explain the law to the jury and tell them, not under what section they are to convict the accused, but in some kind of popular language which they can understand of what offence they are to convict him, whether it be homicide or grievous hurt, or any other. It is for the Judge to construe the law ; it is for the jury to find the facts, and I hope that, in future, Judges, in these jury trials, will be careful not simply to leave the Code to the jury but be at the pains to explain it themselves. For these reasons, having in mind that there was evidence of the crime of which the prisoner has been convicted, that the question of fact was for the jury, and that there was no appeal from their verdict. I think that this appeal must be dismissed.