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HOLLANDER, DAVID
PRINCETON UNIVERSITY
PRINCETON, NJ 08544-0001
Page 1
1 of 7 DOCUMENTS
R. v. CUNNINGHAM.
COURT OF CRIMINAL APPEAL
[1957] 2 QB 396, [1957] 2 All ER 412, [1957] 3 WLR 76, 41 Cr App Rep 155
HEARING-DATES: 20, 27 May 1957
27 May 1957
CATCHWORDS:
Criminal Law -- Maliciously administering a noxious thing -- Meaning of "maliciously" in statutory crime -- Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), s. 23.
HEADNOTE:
The word "maliciously" in a statutory crime postulates foresight of consequence, and requires either an actual intention to do the particular kind of harm that in fact was done or recklessness whether such harm should occur or not; it
is neither limited to, nor does it require, any ill-will towards the person unjured (see p. 414, letters A to D, post).
A house had been converted into two dwelling-houses and the cellar was divided by a wall made of loosely cemented rubble. W., the appellant's prospective mother-in-law, lived, as the appellant knew, in one of the converted
houses. The other was unoccupied. One evening the appellant went to the cellar of the unoccupied house, tore the gas
meter from the wall and from its pipes and stole money from it. He did not turn off the gas at a stop tap nearby and gas
escaped, seeped through the dividing wall of the cellar and partially asphyxiated W., who was asleep in her bedroom.
The appellant was charged under s. 23 of the Offences against the Person Act, 1861, with having unlawfully and maliciously caused W. to take a certain noxious thing, coal gas, so as thereby to endanger her life. At the trial the jury were
directed that "malicious" for this purpose meant "wicked". On appeal against conviction,
Held: the conviction should be quashed, because it was incorrect to say that the word "malicious" in a statutory offence meant "wicked" and it should have been left to the jury to decide whether, even if the appellant did not intend the
injury to W., he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.
Appeal allowed.
NOTES:
As to the crime of administering a noxious thing, see 10 HALSBURY'S LAWS (3rd Edn.) 737, para. 1415; and for
cases on the subject, see 15 DIGEST (Repl.) 1002, 1003, 9866-9875.
As to the requirement of mens rea in statutory offences, see 10 HALSBURY'S LAWS (3rd Edn.) 274, para. 508;
and as to malice in offences of malicious damage to property, see ibid., 874, para. 1694; and for cases on the subject,
see 15 DIGEST (Repl.) 1205, 12,240-12,243.
For the Offences against the Person Act, 1861, s. 23, see 5 HALSBURY'S STATUTES (2nd Edn.) 796.
CASES-REF-TO:
Page 2
[1957] 2 QB 396, [1957] 2 All ER 412, [1957] 3 WLR 76, 41 Cr App Rep 155
(1) R. v. Pembliton, (1874), L.R. 2 C.C.R. 119; 43 L.J.M.C. 91; 30 L.T. 405; 38 J.P. 454; 15 Digest (Repl.) 1205,
12,247.
(2) R. v. Latimer, (1886), 17 Q.B.D. 359; 55 L.J.M.C. 135; 54 L.T. 768; 51 J.P. 184; 15 Digest (Repl.) 999, 9842.
(3) R. v. Faulkner, (1877), 13 Cox, C.C. 550; 15 Digest (Repl.) 1206, 7181.
(4) R. v. Martin, (1881), 8 Q.B.D. 54; 51 L.J.M.C. 36; 45 L.T. 444; 46 J.P. 228; 15 Digest (Repl.) 999, 9841.
INTRODUCTION:
Appeal. The appellant, Roy Cunningham, was convicted at Leeds Assizes on Mar. 25, 1957, before OLIVER, J.,
sitting with a jury, on an indictment charging that he unlawfully and maliciously caused to be taken by Sarah Wade a
certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade, and was sentenced to
five years' imprisonment. He now appealed against this conviction. He also pleaded guilty to a second indictment
charging him with the larceny of a gas meter and its contents and was sentenced to six months' imprisonment to run
concurrently. He did not appeal in respect of this.
COUNSEL:
S. E. Brodie for the appellant. J. S. Snowden for the Crown.
JUDGMENT-READ:
Cur. adv. vult. May 27.
PANEL: Byrne, Slade and Barry, JJ.
JUDGMENTBY-1: BYRNE, J.
JUDGMENT-1:
BYRNE, J., read the judgment of the court: The court has already intimated that this appeal is allowed and the conviction quashed, and we now proceed to give our reasons.
The appellant was convicted at Leeds Assizes on an indictment framed under s. 23 of the Offiences against the
Person Act, 1861, which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade. The facts were that the appellant was engaged to be married, and Mrs. Wade, his prospective mother-in-law was the tenant of a house, No. 7a, Bakes
Street, Bradford, which was unoccupied but which to be occupied by the appellant after his marriage. Mrs. Wade and
her husband, an elderly couple, lived in the house next door. At one time the two houses had been one, but when the
building was converted into two houses a wall had been erected to divide the cellars of the two houses, and that wall
was composed of rubble loosely cemented. On the evening of Jan. 17 last, the appellant went to the cellar of No. 7a,
Bakes Street, wrenched the gas meter from the gas pipes and stole it, together with its contents. In a second indictment
he was charged with the larceny of the gas meter and its contents; to that indictment he pleaded guilty, and was sentenced to six months' imprisonment. In respect of that matter he does not appeal. The facts were not really in dispute,
and in a statement to a police officer the appellant said: "All right I will tell you, I was short of money, I had been off
work for three days, I got 8s. from the gas meter. I tore it off the wall and threw it away". Although there was a stop
tap within two feet of the meter, the appellant did not turn off the gas, with the result that a very considerable volume of
gas escaped, some of which seeped through the wall of the cellar and partially asphyxiated Mrs. Wade, who was asleep
in her bedroom next door, with the result that her life was endangered.
At the close of the case for the prosecution counsel who appeared for the appellant at the trial and who has appeared for him again in this court, submitted that there was no case to go to the jury, but the learned judge, quite rightly
in our opinion, rejected this submission. The appellant did not give evidence.
The act of the appellant was clearly unlawful and, therefore, the real question for the jury was whether it was also
malicious within the meaning of s. 23 of the Offences against the Person Act, 1861.
Before this court, counsel for the Appellant has taken three points, all dependent on the construction of that section.
Section 23 provides as follows:
Page 3
[1957] 2 QB 396, [1957] 2 All ER 412, [1957] 3 WLR 76, 41 Cr App Rep 155
"Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other
person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as
thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony..."
Counsel argued first that mens rea of some kind is necessary. Secondly, that the nature of the mens rea required is
that the appellant must intend to do the particular kind of harm that was done, or alternatively that he must foresee that
that harm may occur, yet nevertheless continue recklessly to do the act. Thirdly, that the learned judge misdirected the
jury as to the meaning of the word "maliciously". He cited the following cases: R. v. Pembliton (1) ((1874), L.R. 2
C.C.R. 119); R. v. Latimer (2) ((1886), 17 Q.B.D. 359); and R. v. Faulkner (3) ((1877), 13 Cox, C.C. 550). In reply,
counsel on behalf of the Crown cited R. v. Martin (4) ((1881), 8 Q.B.D. 54).
We have considered those cases, and we have also considered, in the light of those cases, the following principle
which was propounded by the late Professor C. S. KENNY in the first edition of his QUTLINES OF CRIMINAL LAW
published in 1902, and repeated in the sixteenth edition, edited by Mr. J. W. CECIL TURNER, and published in 1952
(ibid., at p. 186):
"... in any statutory definition of a crime 'malice' must be taken not in the old vague sense of 'wickedness' in general, but as requiring either (i) an actual intention to do the particular kind of harm that in fact was done, or (ii) recklessness as to whether such harm should occur or not (i.e. the assused has foreseen that the particular kind of harm
might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill-will
towards the person injured."
The same principle is repeated by Mr. TURNER in his tenth edition of RUSSELL ON CRIME *. We think that this is
an accurate statement of the law. It derives some support from the judgments of LORD COLERIDGE, C.J., and
BLACKBURN, J., in R. v. Pembliton (1). In our opinion, the word "maliciously" in a statutory crime postulates foresight of consequence.
* See Vol. 2, p. 1592.
In his summing-up, the learned judge directed the jury as follows:
"You will observe that there is nothing there about 'with intention that that person should take it'. He has not got to
intend that it should be taken; it is sufficient that by his unlawful and malicious act he causes it to be taken. What you
have to decide here, then, is whether, when he loosed that frightful cloud of coal gas into the house which he shared
with this old lady, he caused her to take it by his unlawful and malicious action.
"'Unlawful' does not need any definition. It is something forbidden by law. What about 'malicious'? 'Malicious'
for this purpose means wicked -- something which he has no business to do and perfectly well knows it. 'Wicked' is as
good a definition as any other which you would get.
"The facts which face you (and they are uncontradicted and undisputed; the prisoner has not gone into the box to
seek to give any particular explanation) are these. Living in the house, which was now two houses but which had once
been one and had been rather roughly divided, the prisoner quite deliverately, intending to steal the money that was in
the meter -- there it is (indicating Exhibit 1) -- broke the gas meter away from the supply pipes and thus released the
mains supply of gas at large into that house. When he did that he knew that this old lady and her husband were living
next door to him. The gas meter was in a cellar. The wall which divided his cellar from the cellar next door was a
kind of honeycomb wall through which gas could very well go, so that when he loosed that cloud of gas into that place
he must have known perfectly well that gas would percolate all over the house. If it were part of this offence -- which
it is not -- that he intended to poison the old lady, I should have left it to you to decide, and I should have told you that
there was evidence on which you could find that he intended that, since he did an action which he must have known
would result in that. As I have already told you, it is not necessary to prove that he intended to do it; it is quite enough
that what he did was done unlawfully and maliciously."
With the utmost respect to the learned judge, we think it is incorrect to say that the word "malicious" in a statutory offence merely means wicked. We think the learned judge was, in effect, telling the jury that if they were satisfied that
the appellant acted wickedly -- and he had clearly acted wickedly in stealing the gas meter and its contents -- they ought
to find that he had acted maliciously in causing the gas to be taken by Mrs. Wade so as thereby to endanger her life. In
our view, it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs.
Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. We
Page 4
[1957] 2 QB 396, [1957] 2 All ER 412, [1957] 3 WLR 76, 41 Cr App Rep 155
are unable to say that a reasonable jury, properly directed as to the meaning of the word "maliciously" in the context of
s. 23, would, without doubt, have convicted.
In these circumstances, this court has no alternative but to allow the appeal and quash the conviction.
DISPOSITION:
Appeal allowed.
SOLICITORS:
Registrar, Court of Criminal Appeal (for the appellant); Town clerk, Bradford.
Page 5
3 of 7 DOCUMENTS
REGINA v CUNNINGHAM
[COURT OF CRIMINAL APPEAL]
[1957] 2 QB 396
HEARING-DATES: 20, 27 May 1957
27 May 1957
CATCHWORDS:
Criminal law - Mens rea - "Maliciously" - Causing coal gas to be taken so as to endanger life - Whether "wickedness" equivalent to "malice" in statutory crime - Whether "maliciously" postulates foresight of consequence - Offences
against the Person, Act, 1861 (24 & 25 Vict. c. 100), s. 23.
HEADNOTE:
The appellant stole a gas meter and its contents from the cellar of a house and in so doing fractured a gas pipe. Coal
gas escaped, percolated through the cellar wall to the adjoining house, and entered a bedroom with the result that W.,
who was asleep, inhaled a considerable quantity of the gas. The appellant was charged on an indictment preferred under
the Offences against the Person Act, 1861, s. 23, n1 with unlawfully and maliciously causing W. to take a noxious
thing, namely, coal gas, so as thereby to endanger her life. The judge directed the jury that "maliciously" meant "wickedly" - doing "something which he has no business to do and perfectly well knows it." On an appeal against conviction:Held, allowing the appeal, that the word "maliciously" in a statutory crime postulated foresight of consequence, and
that for an offence to be committed under section 23 it was necessary for the
n1 Offence against the Person Act, 1861, s. 23: "Whosoever shall unlawfully and maliciously administer to
or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so
as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily
harm, shall be guilty of felony ..."
accused person either to intend to do the particular type of harm in fact done or, foreseeing that such harm might be
done, for him recklessly to take the risk of it.
Reg. v. Pembliton (1874) L.R. 2 C.C.R. 119 applied.
INTRODUCTION:
APPEAL against conviction.
The appellant, Roy Cunningham, was charged at Leeds Assizes on two indictments. To the first indictment, which
contained two counts of larceny of a gas meter and its contents contrary to sections 8 and 2 of the Larceny Act, 1916, he
pleaded Guilty, and there was no appeal in that respect. The second indictment framed under section 23 of the Offences
against the Person Act, 1861, charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain
noxious thing, namely, coal gas, so as thereby to endanger her life, and to that he pleaded Not Guilty. Oliver J. directed
the jury that for the purpose of the section "maliciously" meant "wickedly" doing something which he has no business
to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get." The appellant was
convicted, and appealed on the ground of misdirection of the jury.
Page 6
[1957] 2 QB 396
The facts are fully set out in the judgment of Byrne J.
COUNSEL:
S. E. Brodie for the appellant. The prosecution must prove on a charge brought under section 23 of the Offences
against the Person Act, 1861, that the accused acted maliciously and unlawfully. Malice imports mens rea. The nature of
the mens rea required is that the accused must either intend to do the harm in fact done or he must foresee that the actual
harm done might occur as a result of his actions but nevertheless continues recklessly, not caring whether it be done or
not. There is no authority decided on the point under section 23, but Reg. v. Pembliton, n2 a case under section 51 of the
Malicious Damage Act, 1861, and which concerned damage to property, supports the contention: see per Lord Coleridge C.J. n3 and Blackburn J. n3 Pembliton'scase n4 was considered in Reg. v. Latimer, n5 a decision under section 20
of the Offences against the Person Act, 1861, and that case is authority for the proposition that the definition of "malice"
contended for applies equally to offences against the person as it does to offences against property. Oliver J.'s direction
to the jury that "malice" meant "wickedness" is
n2 (1874) L.R. 2 C.C.R. 119.
n3 Ibid. 122.
n4 L.R. 2 C.C.R. 119.
n5 (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
insufficient. He was also wrong in refusing to withdraw the case from the jury at the end of the prosecution evidence.
J. S. Snowden, for the Crown, was not called upon to argue whether the case should have been withdrawn from the
jury. He conceded that it would be difficult to seek to uphold the direction. [Reference was also made to Reg. v. Faulkner n6 and Reg. v. Martin. n7 ]
Cur. adv. vult.
May 27.
PANEL: Byrne, Slade and Barry JJ
JUDGMENTBY-1: BYRNE J
JUDGMENT-1:
BYRNE J: read the following judgment. The appellant was convicted at Leeds Assizes upon an indictment framed
under section 23 of the Offences against the Person Act, 1861, which charged that he unlawfully and maliciously caused
to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah
Wade.
The facts were that the appellant was engaged to be married and his prospective mother-in-law was the tenant of a
house, No. 7A, Bakes Street, Bradford, which was unoccupied, but which was to be occupied by the appellant after his
marriage. Mrs. Wade and her husband, an elderly couple, lived in the house next door. At one time the two houses had
been one, but when the building was converted into two houses a wall had been erected to divide the cellars of the two
houses, and that wall was composed of rubble loosely cemented.
On the evening of January 17, 1957, the appellant went to the cellar of No. 7A, Bakes Street, wrenched the gas meter from the gas pipes and stole it, together with its contents, and in a second indictment he was charged with the larceny
of the gas meter and its contents. To that indictment he pleaded guilty and was sentenced to six months' imprisonment.
In respect of that matter he does not appeal.
The facts were not really in dispute, and in a statement to a police officer the appellant said: "All right, I will tell
you. I was short of money, I had been off work for three days, I got eight shillings from the gas meter. I tore it off the
wall and threw it away." Although there was a stop tap within two feet of the meter the appellant did not turn off the
gas, with the result that a very considerable volume of gas escaped, some of which seeped through the wall of the cellar
Page 7
[1957] 2 QB 396
and partially asphyxiated Mrs. Wade, who was asleep in her bedroom next door, with the result that her life was endangered.
n6 (1877) 13 Cox. C.C. 550.
n7 (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
At the close of the case for the prosecution, Mr. Brodie, who appeared for the appellant at the trial and who has appeared for him again in this court, submitted that there was no case to go to the jury, but the judge, quite rightly in our
opinion, rejected this submission. The appellant did not give evidence.
The act of the appellant was clearly unlawful and therefore the real question for the jury was whether it was also
malicious within the meaning of section 23 of the Offences against the Person Act, 1861.
Before this court Mr. Brodie has taken three points, all dependent upon the construction of that section. Section 23
provides: "Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any
other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as
thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony ..."
Mr. Brodie argued, first, that mens rea of some kind is necessary. Secondly, that the nature of the mens rea required
is that the appellant must intend to do the particular kind of harm that was done, or, alternatively, that he must foresee
that that harm may occur yet nevertheless continue recklessly to do the act. Thirdly, that the judge misdirected the jury
as to the meaning of the word "maliciously." He cited the following cases: Reg. v. Pembliton, n1 Reg. v. Latimer n2 and
Reg. v. Faulkner. n3 In reply, Mr. Snowden, on behalf of the Crown, cited Reg. v. Martin. n4
We have considered those cases, and we have also considered, in the light of those cases, the following principle
which was propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published
in 1902 and repeated at p. 186 of the 16th edition edited by Mr. J. W. Cecil Turner and published in 1952: "In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring
either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether
such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has
gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards
n1 (1874) L.R. 2 C.C.R. 119.
n2 (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
n3 (1877) 13 Cox C.C. 550.
n4 (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
the person injured." The same principle is repeated by Mr. Turner in his 10th edition of Russell on Crime at p.
1592.
We think that this is an accurate statement of the law. It derives some support from the judgments of Lord Coleridge C.J. and Blackburn J. in Pembliton's case. n5 In our opinion the word "maliciously" in a statutory crime postulates
foresight of consequence.
In his summing-up Oliver J. directed the jury as follows: "You will observe that there is nothing there about 'with
intention that that person should take it.' He has not got to intend that it should be taken; it is sufficient that by his unlawful and malicious act he causes it to be taken. What you have to decide here, then, is whether, when he loosed that
frightful cloud of coal gas into the house which he shared with this old lady, he caused her to take it by his unlawful and
malicious action. 'Unlawful' does not need any definition. It is something forbidden by law. What about 'malicious'?
'Malicious' for this purpose means wicked - something which he has no business to do and perfectly well knows it.
'Wicked' is as good a definition as any other which you would get."
"The facts which face you (and they are uncontradicted and undisputed; the prisoner has not gone into the box to
seek to give any particular explanation) are these. Living in the house, which was now two houses but which had once
been one and had been rather roughly divided, the prisoner quite deliberately, intending to steal the money that was in
the meter ... broke the gas meter away from the supply pipes and thus released the mains supply of gas at large into that
Page 8
[1957] 2 QB 396
house. When he did that he knew that this old lady and her husband were living next door to him. The gas meter was in
a cellar. The wall which divided his cellar from the cellar next door was a kind of honeycomb wall through which gas
could very well go, so that when he loosed that cloud of gas into that place he must have known perfectly well that gas
would percolate all over the house. If it were part of this offence - which it is not - that he intended to poison the old
lady, I should have left it to you to decide, and I should have told you that there was evidence on which you could find
that he intended that, since he did an action which he must have known would result in that. As I have already told you,
it is
n5 L.R. 2 C.C.R. 119, 122.
not necessary to prove that he intended to do it; it is quite enough that what he did was done unlawfully and maliciously."
With the utmost respect to the learned judge, we think it is incorrect to say that the word "malicious" in a statutory
offence merely means wicked. We think the judge was, in effect, telling the jury that if they were satisfied that the appellant acted wickedly - and he had clearly acted wickedly in stealing the gas meter and its contents - they ought to find
that he had acted maliciously in causing the gas to be taken by Mrs. Wade so as thereby to endanger her life.
In our view it should have been left to the jury to decide whether, even if the appellant did not intend the injury to
Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.
We are unable to say that a reasonable jury, properly directed as to the meaning of the word "maliciously" in the context
of section 23, would without doubt have convicted.
In these circumstances this court has no alternative but to allow the appeal and quash the conviction.
DISPOSITION:
Appeal allowed.
SOLICITORS:
Solicitors: Registrar, Court of Criminal Appeal; Director of Public Prosecuions.
[Reported by G. D. BLACK, Esq., Barrister-at-Law.]
(c)2001 The Incorporated Council of Law Reporting for England & Wales
1249XZ
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Time of Request: Thursday, October 17, 2013
Print Number:
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Send To:
HOLLANDER, DAVID
PRINCETON UNIVERSITY
PRINCETON, NJ 08544-0001
22:41:32 EST