W. Comer Petheram, C.J.
1. Thomas O'Hara, a private in the Leinster Regiment, having in the February Sessions been convicted by a special jury of the murder of Sheikh Soleem on the 7th November was sentenced to death by Mr. Justice NORRIS, and we are now called upon to determine certain points of law arising from the summing up of the learned Judge to the jury, which have been in the certificate of the Advocate-General under Section 26 of the Letters Patent of 1865.
2. That section is as follows:
And we do further ordain that on such point or points of law being so reserved as aforesaid, or on its being certified by the said Advocate-General that, in his judgment, there is an error in the decision of a point or points of law decided by the Court of Original Criminal Jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of Original Jurisdiction, and to pass such judgment and sentence as to the said High Court shall seem right.
3. The following is the certificate given by the Advocate-General: [After reading the case certified above set out (ante, pp. 648-652), his Lordship proceeded as follows:]
In order to make intelligible the arguments addressed to us, and our opinion on the points raised in the Advocate-General's certificate, it is necessary to set out briefly the case for the Grown as stated by the prosecution.; but for reasons which will appear, it must be understood that we express no opinion as to the truth or falsehood of any of the statements made in evidence.
4. The witnesses who have been called for the prosecution have stated that on the night of the 6th November the prisoner O'Hara, accompanied by Bellew and MacDermott, privates of the Leinster Regiment, and Golds borough alias Taylor, private of the Buffs, or East Kent Regiment, all stationed at Dum-Dum, left the barracks armed with two rifles and several rounds of ball cartridge, their object being to shoot wild pigs; that they were all more or less in liquor; that they attacked more than one of the inoffensive villagers and obtained some toddy; that they broke into a dispensary with the same object, and that they afterwards proceeded to the house of the deceased. It is further stated that at the time of their arrival deceased was asleep; that he was awakened by the four men and asked for toddy; that on his failing to give any he was dragged out of his house, taken along a short distance, and then pushed into a tank and shot, and that he died in his house that night from the effects of the wound. It is also stated that the four men then went on, and eventually returned to barracks at Dum-Dum some time towards early morning.
5. We have set out the certificate of the Advocate-General. It is, of course, so far as the statements in it purport to narrate what took place at the trial, to be read as though those statements were preceded by the recital 'whereas it has been represented to me that.' We mention this, as some of the statements contained in the certificate do not, in the opinion of the learned Judge, appear to him quite accurate. There is, however, no difficulty as to what occurred at the trial, the learned Judge who presided at it being a member of the present Bench.
6. The statement in paragraph 7 of the certificate (down to the words, 'I should refuse to convict') as to the manner in which the learned Judge in his charge dealt with the question whether or no the evidence of the witness Golds-borough and that of the witness MacDermott was to be treated as the evidence of an accomplice, and if so, how that evidence should be regarded by the jury, is substantially correct.
7. The statement in the same paragraph, to the effect that the learned Judge advised the jury that, at the place where after the party had left the tank MacDermott said he got a rifle from the prisoner O'Hara and loaded it, an empty cartridge fell out, and that this was corroboration of Goldsborough's evidence, if his evidence needed corroboration, is substantially correct.
8. It is not correct that the learned Judge told the jury, as stated in the 7th paragraph, that if two shots were fired and Goldsborough fired one of them, and O'Hara fired too, O'Hara was equally guilty of murder. The learned Judge told the jury that if both Goldsborough and O'Hara fired at the deceased, with a common intent to commit murder, and death was inflicted by one or other of the shots fired, they might under those circumstances find O'Hara guilty of murder.
9. The statement said to have been made by Goldsborough on the 11th December, and referred to in the 4th paragraph of the certificate, was tendered, was objected to, and was not put in evidence in the case. It was, as stated in the 7th paragraph, read to the jury by the learned Judge in the course of his charge, save that part of it which constitutes the heading of it, namely, 'statement of an accused person,' and the description of it as being made under Section 364 of the Criminal Procedure Code. A statement made by MacDermott before the Committing Magistrate, not put in evidence, was also, in effect, laid before the jury by the learned Judge in his charge.
10. A circumstance which constituted a part of the trial, and which, though not referred to in the certificate, must, in our judgment, be regarded, was stated to us by the prisoner's counsel in the opening of his argument before us, and was confirmed by the learned Judge. It is, that each of the witnesses Golds-borough and MacDermott was warned by the learned Judge when under examination that the conditional pardon granted to him was subject to revocation by the learned Judge should the evidence given be such as to make it his duty to revoke such conditional pardon.
11. On behalf of the prisoner it was contended in the argument before us, that upon the several points set out in the certificate the learned Judge had erroneously decided points of law within the meaning of Clause 26 of the Letters Patent, in the manner therein set forth, and which we need not recapitulate.
12. For the prosecution it was contended that no point of law arose in the case in respect of the matters referred to in the certificate, and that no point of law had been decided. It was contended that the rule requiring a Judge to advise a jury not to convict upon the evidence of an accomplice unless he be corroborated upon material points is a rule of practice and not a rule of law, as decided in (amongst other cases) R. v. Stubbs l Dear. C.C. 555; that it was for the jury to determine whether a particular witness was or was not an accomplice, and to draw such presumption, if any, against his evidence as it might be exposed to; that the Judge has no right to lay down, as a matter of law, that a witness is unworthy of credit; that if the jury think right, they are entitled to find upon the uncorroborated evidence of an accomplice; that in the rule of practice relied on, accomplice means a particeps criminis; and that in the present case neither Goldsborough nor MacDermott was an accomplice, but that even if one or both were accomplices, there was ample corroboration of their evidence. We do not attempt to state exhaustively all the arguments offered by the learned Counsel for the prosecution, but these were the main arguments relied upon by him in this part of the case.
13. Before dealing with the points of law which arise before us we must refer shortly to part of the evidence in the case. We shall do so, for obvious reasons, no more than may seem to us absolutely necessary for the decision of such points of law as we must decide in this proceeding.
14. The case for the prosecution is that the four soldiers-we mention them in the order in which they are said to have gone towards the tank-MacDermott, Bellow, O'Hara, and Goldsborougb-went from the house of the deceased to the tank, taking the deceased with them; that O'Hara held him as they went along; and he and deceased so went, preceded by MacDermott and Bellow, and followed by Goldsborough, up the tank; that there the deceased complained, was shoved into the tank by O'Hara, that he complained when in the tank, and that then O'Hara knelt down, loading as he did so, and fired the fatal shot.
15. The case against the prisoner therefore involves two principal facts-1st, that he was at the tank with the deceased; 2nd, that he fired the shot which killed the deceased. As to the first, MacDermott and Goldsborough depose to it: the second is deposed to by Goldsborough alone. There is no evidence but theirs that O'Hara was ever at the tank at all.
16. If both of these witnesses are accomplices, the rule which is commonly said to require corroboration of accomplices' testimony, would apply with reference, not merely to O'Hara's having actually committed the murder, but with reference to his having been at the place where it was committed, If MacDermott be not an accomplice, there is evidence in the case, not needing corroboration, which brings O'Hara to the place of the murder. Of course, if Golds-borough be not an accomplice, no question under the rule as to accomplice's evidence arises.
17. We shall proceed to deal with the point as to Golds-borough. Now, upon the case for the prosecution, chiefly contained in his own evidence, these facts appear. He was one of a party of four persons who went out armed at night; broke into a house, from which they took some property; used, at other houses, violence, or used menaces of violence by act or word, to persons found there, and who, all four of them, carried off the deceased at dead of night, from his house and took him to the tank. While there he was shoved into the tank by O'Hara, Goldsborough being close by, and though not aiding and only so far as his presence might tend to intimidate the deceased from making resistance, not interfering to prevent the deceased from being so treated, Goldsborough being one of the persons who had brought the deceased to the spot. O'Hara then, according to Goldsborough's evidence, loads and aims at deceased within three yards of Goldsborough, and fires the fatal shot which Goldsborough sees take effect. After it is fired, MacDermott returns, finds the deceased in the water, and Goldsborough standing there, the other two men being sitting or lying. He finds them laughing. They then all four go away, and pursue their marauding expedition elsewhere.
18. We think that these facts are such as would form sufficient grounds for putting Goldsborough on his trial upon a charge of abetting the murder; and this notwithstanding the remonstrance which, according to his evidence, he offered to O'Hara just before the shot was fired.
19. From this point of view, and having regard to the fact that he had received a pardon under Section 337, and gave his evidence under that section, Goldsborough was, we think, an accomplice within the meaning of the rule under the law existing in India. Goldsborough being an accomplice, it was the duty of the learned Judge to follow the ordinary rule and advise the jury not to act on his evidence without corroboration in a material part of it, applying in the prisoner's favour Section 114 of the Evidence Act and illustration (b) of that section,-' that an accomplice is unworthy of credit unless he is corroborated in material particulars.'
20. It is true that if, notwithstanding such advice, the jury had found the prisonir guilty on the accomplice's evidence, the conviction would not have been illegal merely because they had so done-(section 133, Evidence Act).
21. It may be that an omission by the Judge to advise the jury according to the rule, however dangerous such a failure of duty on his part might be, would not nevertheless be ground for interfering with a conviction, but it did not become necessary to decide it in a proceeding under Clause 26 of the Letters Patent. This question was referred to in the case of Pestonji Dinsha (10 Bom. H. C. at p. 60). Having regard to the course of decisions in this Court (although no doubt those decisions were, as pointed out in the Bombay case referred to, come to in appeals from the mofussil), we are not prepared to say that this Court might not feel bound, even on she ground of such an omission alone, to review the case under Clause 26 of the Letters Patent. This difficult question, however, need not be decided in the present case.
22. We have in this case to consider the nature of the learned Judge's charge from another point of view, namely, the effect of the strong expression of opinion which fell from him that Goldsborough was not an accomplice. In the part of his charge to which we refer, summarised in paragraph 7 of the certificate, he spoke of Goldsborough and MacDermott together. We have for the present to deal with those observations with reference to Goldsborough's position only, and must separate the reference to the one from that to the other for the purpose of expressing our meaning.
23. In this observation the jury were advised not to convict on the evidence of Goldsborough, if satisfied that he was an accomplice and uncorroborated. But in truth the effect of that advice was, having regard to what accompanied or preceded it, practically nothing, because it was coupled with a strong expression of opinion, couched in terms of the most persuasive force, that he was not one: indeed, the result, though not the actual purport of the learned Judge's words on this matter was, that the notion of his being an accomplice was utterly idle and preposterous. He said that Goldsborough was no more an accomplice than he the Judge, or they, the jury, were.
24. The substantial effect of this was, that (although if an accomplice, Golds-borough's evidence should not be acted on without corroboration), inasmuch as Goldsborough was not an accomplice, his evidence ought to be given as much weight to as that of a perfectly independent and unprejudiced witness. It was not an omission only, hut an affirmation. It constituted, in our opinion, a misdirection, in fact, though not in form.
25. We shall refer presently to the effect of this misdirection, as we consider it to have been. We must here refer to the use of the statements of Goldsborough and of MacDermott in this part of the charge. These statements could not, we think, be laid before the jury: they had already, or one of them had, been tendered, objected to, and not put in. We think that to lay before the jury these statements, not admitted nor admissible in evidence, was in itself a decision erroneous in point of law, and calculated to prejudice the prisoner on his trial.
26. As to the misdirection with respect to Goldsborough, we think it was of a nature to prejudice most seriously the prisoner at the bar. The prisoner was entitled, on his trial, to the benefit of the presumption set out in the 114th section of the Evidence Act, and the effect of this misdirection was to exclude him from the benefit of that section.
27. Had the jury not been told that, in the opinion of the Judge, Goldsborough was not an accomplice, it may well be that, having heard his evidence as that of a person who had been in that character given a conditional pardon under Section 337, and who had been twice warned in their hearing that the pardon was subject to revocation, they might, as asked to do by the Counsel for the prisoner, have so treated him in their own consideration of the case, and required corroborative evidence, satisfiying to themselves, of some of the material particulars of his evidence. It may be that they would have found such corroboration in the evidence of MacDermott: but MacDermott (whether an accomplice within the meaning of Section 114, or not, a question we need not here determine) came before the jury with the stigma of having received a pardon under Section 337 of the Procedure Code, and he also had been twice warned in their presence by the learned Judge. It may perfectly well be also that they would have disbelieved that witness's testimony, or treated its truth as so uncertain as not to constitute satisfactory corroboration. It may even be that had the jury not heard from the Judge the opinion expressed by him, they would not have acted upon Goldsborough's evidence, whether corroborated or not.
28. In the view we take of the case, it is unnecessary to deal with the argument for the prosecution as to the powers of the Court acting under Section 26 of the charter. We take it to be clear that in a case of misdirection such as this, and of improper reception of evidence such as took place in the present case, this Court may and ought to exercise its powers of review.
29. I do not think that I ought to rest satisfied with silently acquiescing in the judgment which has just been delivered. A careful consideration of the arguments addressed to as has satisfied me that I ought to have told the jury that Goldsborough was an accomplice, and there is no doubt in my mind that that misdirection must have very seriously prejudiced the prisoner. I also agree that I ought not to have referred in the way I did to the statements made by MacDermott and Goldsborough before the Cantonment Magistrate, but I do not agree that the reference to those statements in any degree prejudiced the case of the prisoner on his trial.
30. After delivering the foregoing judgment, the Court (the Judges forming the Full Bench) sat to deal with the case on the evidence as it appeared from the notes of Mr. Justice Norris.
31. Mr. Woodroffe (with him Mr. Pugh), for the Prisoner, said he proposed to address the Court upon the evidence in the same way as if that evidence 'was before a jury. He submitted upon the facts that MacDermott was an accomplice, and that his evidence should be received in that light, and that Goldsborough's evidence, apart from his position as an accomplice, was full of inherent improbabilities and unworthy of credit. MacDermott being an accomplice within the ruling of Sir Charles Sargent, C.J., in Reg. v. Fattechand Vastachand 5 Bom. H.C. Cr. p. 85; see p. 96, there was no corroboration as to the material points in the case. There was further no evidence of intention.
32. The Standing Counsel (Mr. Phillips, with him Mr. Handley) for the Crown. -The case is, it is presumed, being discussed under similar circumstances to that of the Queen v. Hurribole Chunder Ghose I.L.R. 1 Cal. 207. It is not in the power of this Court to sit as a Judge and jury, and to enquire whether the verdict pronounced was or was not illegal unless on a point of law. The merits of the case cannot be gone into; there is no complete record before the Court. Pontifex, J. in Queen v. Hurribole Chunder Ghose shows how the cases-should be dealt with apart from the Evidence Act, i.e., on the Letters Patent. Under the Criminal Procedure Code the Court has a power to do a, variety of things of which there is no trace in Clause 26 of the Letters. Patent, which gives totally different powers dealing only with points of law. The review referred to there is to be for the purpose of determining points of law and thereupon to alter the sentence. In Beg. v. Naoroji Dadabhai 9 Bom. H.C. 393, Green, J., says the clause is not one giving a power to appeal. It cannot be that an appeal is meant, as there are no materials before the Court to deal with.
33. The case of Queen v. Hurribole Chunder Ghose is further reported in 25 W.R. Or. 36, on the question whether the evidence, if believed, supported the verdict. On this trial the Court has not the advantage of seeing the demeanour of the witnesses. I shall show, however, that there is sufficient evidence, if believed, beyond the evidence of the two persons said to be accomplices, to support the conviction. (The learned Counsel then referred to the facts of the case), There is nothing peculiar in the circumstances under which Goldsborough gave his statement; drunkenness is no excuse as a defence; they were all four in the same state, though perhaps MacDermott was the worst. The case of Beg. v. Fattechand Vastachand 5 Bom. H.C. 85 only shows that the person treated by the Magistrate as an accomplice was not one. The amount of corroboration required to the evidence of an accomplice must depend on circumstances- Queen v. Kalla Chand Dass 11 W.R. Cr. 21. There is here ample corroboration in the evidence of MacDermott. He shows that O'Hara had a gun during the time of the occurrence, and that gun had been used. It is not necessary that an informer should be corroborated in every particular, because, if such evidence could be found, it would be unnecessary to call the approvers- Beg. v. Gallagher 15 Cox. C.C. 292 (319).
34. Mr. Woodroffe in reply submitted that there was both misdirection and improper admission of evidence, and that the prisoner had been seriously prejudiced thereby.
35. The Court on the evidence quashed the conviction and set aside the judgment and sentence.