CASE stated for the opinion of this court by the Recorder of Wolverhampton.

At the Quarter Sessions of the Peace, held at Wolverhampton on the 8th day of January instant, Henry Pembliton was indicted for that he "unlawfully and maliciously did commit damage, injury, and spoil upon a window in the house of Henry Kirkham," contrary to the provision of the stat. 24 & 25 Vict. c. 97, s. 51. This section of the statute enacts:

"Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever either of a public or a private nature for which no punishment is herein before provided, the damage, injury, or spoil being to an amount exceeding 57., shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor; and in case any such offence shall be committed between the hours of nine of the clock in the evening and six of the clock in the next morning, he shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding five years and not less than three, or to be imprisoned for any term not exceeding two years, with or without hard labor."

On the night of the 6th day of December, 1873, the prisoner was drinking with others at a public house called "The Grand Turk," kept by the prosecutor. About eleven o'clock P. M. the whole party were turned out of the house for being disorderly, and they then began to fight in the street and near the prosecutor's window, where a crowd of from forty to fifty persons collected. The prisoner, after fighting some time with persons in the crowd, separated himself from them, and removed to the other side of the street, where he picked up a large stone, and threw it at the persons he had been fighting with. The stone passed over the heads of those persons, and struck a large plate glass window in the prosecutor's house, and broke it, thereby doing damage to the extent of 71. 128. 9d.

The jury, after hearing evidence on both sides, found that the prisoner threw the stone which broke the window, but that he threw it at the people he had been fighting with, intending to strike one or more of them with it, but not intending to break the window; and they returned a verdict of "Guilty," whereupon I respited the sentence, and admitted the prisoner to bail, and pray the judgment of the Court for Crown Cases Reserved, whether upon the facts stated and the finding of the jury, the prisoner was rightly convicted or not. (Signed) JOHN J. POWELL, Recorder of Wolverhampton.

prisoner.

No counsel appeared to argue for the J. Underhill, for the prosecution. The conviction was right under the statute, for it is found that the prisoner threw the stone at the people, intending to hit some or one of them; that is, that he was guilty of a malicious act; and the other part of the finding, that he did not intend to break the window, may be rejected as surplusage.

An unlawful act done without just cause implies malice. In the act there are some sections under which it is necessary that there should be the malicious intention, in order to prove the offence, but there are others under which it is not necessary that there should be the intention. For instance, sect. 58 enacts that every punishment and forfeiture imposed by the act on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise. There was malice against the persons at whom the stone was thrown, and the consequence of throwing the stone was the damage to the window. The above section seems to dispense with proof of malice against the owner of the property injured; and the rule of law, that a man must be taken to intend the consequence of an unlawful act, also applies. In 1 Russell on Crimes, 667 (3d edit.), it is said: "It should, however, be observed that when the law makes use of the term malice aforethought,' as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit, a heart regardless of social duty and deliberately bent on mischief. And in general any formed design of doing mischief may be called malice. Fost. 256, 262." [BLACKBURN, J. Foster is speaking of murder in that passage.] Lord Coke (3 Inst. 56), also speaking of murder, says, "If the act which causes death is unlawful it is murder." He puts the case of a man who, intending to steal a deer in a park, shoots at it, and by the glance of the arrow kills a boy that is hidden in a bush. "This, he says, is murder, for the act was unlawful, although A. had no intent to hurt the boy, nor knew not of him." [BLACKBURN, J. Is there any authority except those dicta and Plummer's case (Kely. 109) which go that length ?] The same rule is laid down in East's P. C. 231, and Lord Hale P. C. 451. [LUSH, J. Lord Coke seems to put it on the unlawfulness of the act, and he goes so far as to say, "If a man, knowing that many people come in the street from a sermon, throw a stone over the wall, intending only to frase them or to give them a slight hurt, and thereupon one is killed, this is murder, for he had an ill intent, though that intent extended not to death, and though he knew not the party slain." Surely that would be only manslaughter unless he knew what his act would probably do, or unless he intended to do grievous bodily harm. You have to make out, not only that the act was unlawful, but that it was malicious. Does not that mean intentionally malicious? Must you not show that he did maliciously break the window?] Suppose a man throws at one window and misses it, but breaks another. Would not that case be within the act, although there was no intention to break the particular window? In Russ. 739 it is said: "There are many acts so heedless and incautious as necessarily to be deemed unlawful and wanton, though there may not be any express intent to do mischief

and the party committing them and causing death by such conduct will be guilty of manslaughter." In Reg. v. Ward (12 Cox C. C. 123; 41 L. J. 69, M. C.), where the prisoner, who was jealous of other persons going in pursuit of wild fowl in a creek of a river, fired from his boat while the prosecutor was in pursuit of wild fowl in the creek in a way so as to frighten and deter him from going there again; but as the prosecutor's punt slewed round, he was struck by the shot from the prisoner's gun; but if the boat had not slewed round, the shot would not have struck him; and it was held by a majority of twelve judges to three that there was evidence of a malicious wounding by the prisoner. [LUSH, J. In that case Kelly, C. B., asked, "Does maliciously necessarily mean intentionally?] The cases of Rex v. Haughton (5 C. & P. 555), and Reg. v. Monagham (23 L. T. Rep. N. S. 168), were then cited. If a person throws a stone in a neighborhood where there are windows, intending seriously to hurt some person, can he excuse himself because the result is only that a window is broken instead of a man's head? Sect. 39 relates to unlawful and malicious injuries to works of art. Now if two persons happen to quarrel in a museum and one throws a missile at the other and misses him, but destroys a valuable art specimen, is he to be held not guilty of an offence because his malicious intention was toward the man and not the property or its owner? Yet that must follow, if the conviction is not upheld in this case.

Lord COLERIDGE, C. J. I am of opinion that this conviction must be quashed. The facts of the case are these: The prisoner and some other persons who had been drinking in a public house were turned out of it at about eleven P. M. for being disorderly, and they then began to fight in the street near the prosecutor's window. The prisoner separated himself from the others, and went to the other side of the street, and picked up a stone, and threw it at the persons he had been fighting with. The stone passed over their heads, and broke a large plate-glass window in the prosecutor's house, doing damage to an amount exceeding 51. The jury found that the prisoner threw the stone at the people he had been fighting with, intending to strike one or more of them with it, but not intending to break the window. The question is whether, under an indictment for unlawfully and maliciously committing an injury to the window in the house of the prosecutor, the proof of these facts alone, coupled with the finding of the jury, will do? Now I think that is not enough. The indictment is framed under the 24 & 25 Vict. c. 97, s. 51. The act is an act relating to malicious injuries to property, and sect. 51 enacts that whosoever shall unlawfully and maliciously commit any damage, &c., to or upon any real or personal property whatsoever of a public or a private nature, for which no punishment is hereinbefore provided, to an amount exceeding 51., shall be guilty of a misdemeanor. There is also the 58th section which deserves attention: "Every punishment and forfeiture by this act imposed on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether

the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise." It seems to me on both these sections that what was intended to be provided against by the act is the wilfully doing an unlawful act, and that the act must be wilfully and intentionally done on the part of the person doing it, to render him liable to be convicted. Without saying that, upon these facts, if the jury had found that the prisoner had been guilty of throwing the stone recklessly, knowing that there was a window near which it might probably hit, I should have been disposed to interfere with the conviction; yet as they have found that he threw the stone at the people he had been fighting with, intending to strike them and not intending to break the window, I think the conviction must be quashed. I do not intend to throw any doubt on the cases which have been cited, and which show what is sufficient to constitute malice in the case of murder. They rest upon the principles of the common law, and have no application to a statutory offence created by an act in which the words are carefully studied.

The

BLACKBURN, J. I am of the same opinion, and I quite agree that it is not necessary to consider what constitutes wilful malice aforethought to bring a case within the common law crime of murder, when we are construing this statute, which says that whosoever shall unlawfully and maliciously commit any damage to or upon any real or personal property to an amount exceeding 57., shall be guilty of a misdemeanor. A person may be said to act maliciously when he wilfully does an unlawful act without lawful excuse. question here is can the prisoner be said, when he not only threw the stone unlawfully, but broke the window unintentionally, to have unlawfully and maliciously broken the window. I think that there was evidence on which the jury might have found that he unlawfully and maliciously broke the window, if they had found that the prisoner was aware that the natural and probable consequence of his throwing the stone was that it might break the glass window, on the principle that a man must be taken to intend what is the natural and probable consequence of his acts. But the jury have not found that the prisoner threw the stone, knowing that, on the other side of the men he was throwing at, there was a glass window and that he was reckless as to whether he did or did not break the window. On the contrary, they have found that he did not intend to break the window. I think therefore that the conviction must

be quashed.

PIGOTT, B. I am of the same opinion.

LUSH, J. I also think that on this finding of the jury we have no alternative but to hold that the conviction must be quashed. The word "maliciously" means an act done either actually or constructively with a malicious intention. The jury might have found that he did intend actually to break the window or constructively to do so, as that he knew that the stone might probably break it when he threw it. But they have not so found.

CLEASBY, B., concurred.

Conviction quashed.

COURT OF CRIMINAL APPEAL.

April 25 and May 8, 1874.

(Before Lord COLERIDGE, C. J., BLACKBURN, J., PIGOTT, B., LUSH, J., and CLEASBY, B.)

REG. v. C. F. FRANCIS.

(12 Cox's Criminal Cases, 612; L. R. 2 C. C. R. 128.)

False Pretence. Evidence. Guilty Knowledge.

Prisoner was indicted for an attempt to obtain money from W., a pawnbroker, by false pretences (inter alia) that a ring was a diamond ring; and also for an attempt to obtain money from D., another pawnbroker, by a similar false pretence. To show guilty knowledge, evidence that he had shortly before offered other false articles of jewelry to other pawnbrokers was held to be properly admissible.

CASE reserved for the opinion of this court by Blackburn, J. The prisoner was indicted at Northampton Assizes jointly with one Joseph Roberts.

The indictment contained counts for a conspiracy to defraud, and also a count for an attempt to obtain money from one George Walters by false pretences (inter alia) that a ring was a diamond ring. And a count for attempting to obtain money from Caleb Dyer by a similar false pretence.

On the trial evidence was given that Francis came on the 8th January, 1873, to the shop of Walters, who is a pawnbroker in Northampton, and asked for an advance of 157., on the pledge of a hoop ring which he represented to be a diamond ring, a silver watch, and a gold chain. The pawnbroker examined the ring, and declared it was not a diamond ring. He refused to advance anything on it. The prisoner Francis, after asking for an advance of 117., left the shop. Francis immediately proceeded to the shop of Dyer, who is also a pawnbroker in the same street, and asked for an advance of 137., on the same property. He obtained no advance, and was taken into custody on a charge of giving a false name and address under the Pawnbrokers' Act.

The ring was produced in court and evidence was given that the stones were not diamonds, but crystals, and were not worth more than 6d. each.

Francis's statement when taken and his defence at the trial was that he did not know that the ring was false, he being employed, as he said, by Roberts to pawn the ring, and believing his assertion that it was a diamond ring.

Evidence was then offered, in order to prove guilty knowledge in Francis, that he had shortly before offered other false articles to other pawnbrokers. I admitted the evidence, but as the cases relied on for the prosecution were all cases either of forgery, or uttering counterfeit coin, I reserved the question whether, on such a charge as this, such evidence was admissible for the purpose of proving guilty knowledge.

A witness was called who proved that on the 6th of January, 1874, at Bedford, the prisoner Francis obtained 358. from a pawn