NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1946.tb00999.x |
| Date | 01 April 1946 |
| Published date | 01 April 1946 |
72
NOTES
OF
CASES
THE
LIMITS
OF
CONSTRUCTIVE
MURDER
R.
V.
Jarmain,
[1945]
2
A.E.R.
613,
is
the case
of
a 'hold-
up
'
with fatal results. Armed with an automatic pistol, the
accused went to a garage in order to commit armed robbery.
He found
a
woman cashier, fired a shot from which she died
after two days, and completed the robbery. The only evidence
as
to the circumstances of the killing was that of the accused.
According to him, the deceased woman had refused to obey his
command to hand over the money she had been counting. He
had then changed over from his right to his left hand the gun,
which he had been pointing
at
her, and had cocked it twice,
thus allowing one live round to be ejected and introducing
another live round into the breech. He had intended to
frighten her but had not intended to fire. He had pressed the
trigger inadvertently and when he had realised that he had shot
the woman he had grabbed
a
pile of notes and run out.
Charles
J.
directed the jury that the accused was guilty of
murder, even if his evidence was accepted, as he had caused the
death of another person in the course of committing the felony
of armed robbery, and the jury returned a verdict of murder.
This verdict was undoubtedly justified and the direction to
the jury unobjectionable; the Court of Criminal Appeal was,
therefore, bound to dismiss the appeal.
But
in doing
so,
Wrottesley
J.,
who delivered the judgment-of the Court, dealt
with the argument upon which the appeal was based in
a
manner which deserves attention.
It
had been argued that the accused would have been guilty
of murder,
as
he had killed in the course of Committing
a
felony
of violence, if he had been inadvertent
as
to the result of his
actions. His inadvertence, however, concerned the very act of
killing itself. He had not acted voluntarily, his will did not go
with the action of
his
finger in pressing the trigger.
This
argument proceeded upon the distinction between
the
requirement
of
voluntariness and that of foresight of the con-
sequences
of
an act as essentials
of
criminal liability. English
criminal lawyers are indebted to
Mr.
J.
W.
C.
Turner for his
explanation of this distinction in
his
article on
'
The Mental
Element in Crimes at Corninon
Law'
in Vol.
VI
of
the
Cam-
bridge
Law
JournaZ,
p.
31.
In this article
Mr.
Turner regrets
1”
Il.,
1:4:6
NOTES
OF
CASES
78
the definition of constructive lnurder established by the House
of
Lords
in
Beurd’s
Case,
[1920)
A.C.
479,
because
it
dispensed
with the requirement
oi
foresight of death. Whatever the
merits of this contention, it would seem futile to renew the
attack
on
this decision which has been followed on several
occasioiis. The present moment, when all available resources
are needed to deal with the alleged
‘
crime wave
‘,
would in
any case
be
inopportune to plead for relaxation
o€
the law.
Diff went considerations would arise, however,
if
it
were
proposed to tighten the law by abandoning the requirement
of
voluntariness
of
the acts of the accused.
Beard‘s
Case
would
provide no authority for this, and throughout
Mr.
Turner’s
discussion of the requirement of voluntariness of the prisoner’s
conduct
it
is indeed taken
for
granted that no serious attempt
has
heen
made
to reduce modern criminal law to that primitive
eonciitioii in which it would bc no ddenee to plead-in Mr.
Turner’s phrase--that
‘
I
could not help killing him
’.
Apart from the unfortunate decision in
Lursonnrur
(1933),
24
Cr.App.R.
74,
there has only been one recent occasion
to deal with the requirement
of
voluntariness, namely, the
decision
of
the Divisional Court in
Kay
v.
Butterworth,
reported in
The
Times
Newspaper, June
7,
1945.
The Court
there reversed an acquittal on
a
charge under sections
11
and
12
of
the Road Traffic Act,
1930,
where the accused had been
overcome by sleep whilst driving. The decision was, however,
given on the ground that the driver must have known that
drowsiness was overtaking him, and that he had acted volun-
tarily in failing to stop and wait until he had shaken
it
off.
Mr.
Justice Humphreys, moreover, emphasised that the case
was different from that of
a
person who, through no fault
of
his
own, became unconscious while driving, for example, by being
struck by a stone
or
by illness, who ought not to be liable
at
criminal law.
It
is clear that no question of involuntariness in the sense
of
the example given by
Mr.
Justice Humphreys arose in
Beard’s
(’use.
It
had been argued there that Beard had caused the
death of the deceased accidentally, as he had placed his hand
over her mouth to prevent her screaming, and not with the
intention to kill.
It
was held that this could not affect Beard’s
liability for murder. In
Jarmain’s
Case
the prosecution main-
tained that this ruling answered the argument raised by the
defence, and this contention was adopted by the Court. Yet
Beard’s acticn was only accidental in the sense that he did not
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