Kennedy v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1944 |
| Docket Number | No. 22. |
| Date | 19 July 1944 |
| Court | High Court of Justiciary |
HIGH COURT. Full Bench.
Lord Justice-General. Lord Justice-Clerk. Lord Fleming. Ld. Moncrieff. Lord Mackay.
Crime—Murder—Culpable homicide—Defence of drunkenness—Effect of drunkenness upon criminal responsibility—Function of judge when charging jury.
The crime of murder is not reduced to the crime of culpable homicide by the drunkenness of the panel, unless the drunkenness is such as to render the panel incapable of forming at the time when the crime was committed the intent to kill or to do serious injury. Where, in a murder trial, a plea based on drunkenness is put forward by the defence, it is the duty of the presiding judge to decide whether any of the evidence is relevant to infer that the panel was, at the time of committing the act, incapable of forming such an intent. If he decides that there is no evidence from which such incapacity can reasonably be inferred, it is his duty to direct the jury that it is not open to them to consider the plea. If, however, he decides that there is some evidence—although it may be slight, or even doubtfully relevant—from which such incapacity can reasonably be inferred, he must leave the plea to the jury, subject to such directions as he may think proper. The evidence need not be medical evidence.
So held by a Full Bench in an appeal against conviction in a case where the presiding judge had directed the jury that it was not open to them to return a verdict of culpable homicide.
H. M. Advocate v. Campbell, 1921 J. C. 1,approved.
John Kennedy was charged on an indictment at the instance of His Majesty's Advocate which set forth that "you did on 12th May 1944, in Drumbottie Road, Glasgow, near its junction with Broomfield Road, assault John Forbes Fitzgerald … and did stab him in the back, chest, groin and hands with a knife or other similar instrument, and you did murder him."
The panel was tried before Lord Carmont and a jury at Glasgow on 27th and 28th June 1944. The Crown evidence established that the crime had been committed at about 11.30 p.m. on 12th May, and the question arose whether the crime might not be reduced from murder to culpable homicide in view of the panel's drunken condition at that time. A number of the Crown witnesses deponed that the panel had taken drink, and one of these witnesses stated that he was badly under its influence. John Neil, a witness for the defence after deponing that he met the panel at Newton's Bar at about 6 p.m. on the evening in question, gave evidence as follows:—"(Q.) And how long were you and he there? (A.) Until 9.30 or 9.20. (Q.) What condition was Kennedy in? (A.) In my opinion, he was hopelessly drunk. (Q.) When you left Newton's Bar, did you leave together? (A.) Yes. (Q.) Where did you go? (A.) We went to the Orange Dance Hall.… (Q.) And the idea was to go and join the dancing? (A.) Yes. (Q.) Had you a good drop yourself? (A.) Yes, I had a good drink myself. (Q.) Did you have any doubt about whether you would get in? (A.) Sometimes you cannot tell. It all depends on who is at the door. (Q.) What happened when you got there? Just tell us. (A.) I got in all right, but they refused to let young Kennedy in. (Q.) Why did they refuse to let him in? (A.) Because he was drunk. (Q.) After you got in, did you realise Kennedy had been refused? (A.) Yes. (Q.) And did you stay there? (A.) No, I came back out again. (Q.) Did you rejoin Kennedy? (A.) Yes. (Q.) Did you go to another dance hall? (A.) Yes, further up the Springburn Road. (Q.) What happened there? (A.) We were refused entry there. It was a private dance. (Q.) What sort of condition was Kennedy in? (A.) He was still drunk. (Q.) And was he like that when you left him? (A.) Yes, at 11 o'clock he was still like that.…" In cross-examination he added that, after leaving the second dance hall, "we came back down Springburn Road until we got to Northcroft Road and I left. (Q.) Do you say this took about an hour and a half? (A.) Yes, at the speed we were going." In re-examination he explained his reference to speed by stating that Kennedy was at that time needing some assistance.
In the course of his charge, Lord Carmont gave the jury the following directions in regard to the evidence of drunkenness:—
LORD CARMONT .—… It is suggested that the act was really not the act of the panel because he was not himself through drink. A good deal was said on this topic by the learned Dean of Faculty in the defence, and let me deal with it once and for all. The taking of drink to excess, amounting to a state of intoxication, making a person of a violent disposition and so accounting for a crime, is no defence in law. You can quite readily understand why that should be so, because, if anybody was going to commit a crime, all he would need to do would be to take sufficient liquor and commit it, and then say, "Oh, you cannot hold me for this, because I had drink." If that were the state of the law, no one would be safe, because drink would always be used as a cover for crime. Of course, there does come a time in certain cases where the use of something, alcohol or drugs, or something else, will so alienate a man's reason or bring him to such a state that he does not know the quality of the act that he is doing, that he cannot form any opinion about it at all, and when he reaches that state, the law may mercifully say, "Well, the drink was not taken for the purpose of crime, and we will consider his mental condition." But that is an entirely different matter from anything you have heard of in this case. All you have heard of in this case was: "He was kind of drunk," said M'Combe. "He had drink on him and smelt. It was obvious. He had wild talk. I do not know if he was right drunk," says Murray. M'Kay said, "He seemed to know what he was doing." Collins said, "He had drink on him. The smell was quite plain while we talked. He was excited." Collins said, "He was quite able to look after himself." Spencer said, "He was fairly sensible and quite his usual self. His conversation was normal." But the highwater mark of the case on drink was the witness Toal, and the witness that you heard this morning, John Neil. Now, if you took the high-water mark of what those witnesses said, it was that Kennedy had taken drink, as Toal says, that he was definitely under the influence of drink; and the evidence that you had from Neil this morning was that he was "hopelessly drunk." Well, I have to tell you that in law that does not amount to any excuse that would lessen the crime of murder. In 1920 the learned Lord Justice-Clerk Scott Dickson told a jury that an accused was guilty of murder unless he was, owing to drunkenness, in such a condition that he had not the intention and could not form the intention of doing serious injury to the person injured. Let me read you two passages from that case.1 "If a man strikes and wounds another—and a fist may be just as dangerous, if it is sufficiently used, as a weapon—if he strikes him in such a way and kills him there and then on the spot, with the intent to kill, that is...
To continue reading
Request your trial
-
Brennan v H. M. Advocate
...responsibility; and appeal refused. Authorities considered. H. M. Advocate v. Campbell 1921 J.C. 1 andKennedy v. H. M. AdvocateSC1944 J.C. 171overruled. D.P.P. v. BeardELR [1920] A.C. 479 disapproved. Ian Brennan went to trial on indictment at the High Court at Glasgow on 10th December 1976......
-
Crawford v H. M. Advocate
...on the ground that the special defence should not have been withdrawn from the jury,— Held (1), applyingKennedy v. H. M. Advocate, 1944 J. C. 171, that the presiding Judge had acted correctly in deciding for himself whether there was any evidence relevant to infer self-defence, and in withd......
-
Lord Advocate's Reference No. 1 Of 2001 V. Edward Richard Watt
...it has constantly been accepted and applied....". The Opinion of the Court pointed out that, in the case of Kennedy v H.M. Advocate 1944 J.C. 171, the directions by the trial judge in Campbell had been approved, but only after it had been, "agreed by both prosecution and defence for the pur......
-
Kim Louise Scarsbrook Or Galbraith V. Her Majesty's Advocate
...responsibility. But, in doing so, they overruled the decisions in H. M. Advocate v. Campbell 1921 J.C. 1 and Kennedy v. H. M. Advocate 1944 J.C. 171. In 1923, when Lord Alness presided in Savage, the principal authorities, including Campbell, supported the view that an accused's drunkenness......