Attorney General v O'Brien

CourtCourt of Criminal Appeal (Irish Free State)
Judgment Date30 July 1936
Date30 July 1936

Court of Criminal Appeal.

Attorney-General v. O'Brien.

Criminal law - Murder - Defence of "irresistible impulse" - Absence of evidence - Presumption of sanity - Judge's charge to the jury.

Appeal from an order of Johnston J. refusing a certificate under sect. 31 of the Courts of Justice Act, 1924, for an appeal to the Court of Criminal Appeal.

The accused, Leo O'Brien, was convicted at the Central Criminal Court, Dublin, of the murder of John A. Stokes, at 33 Mespil Road, Dublin, on the 3rd November, 1934. The trial took place on the 24th, 25th, 26th and 27th June, 1935, before Johnston J. The material facts given in evidence were as follows:—

The accused was a Commandant in the National Army and resided with his wife and young daughter at his quarters at Beggars Bush Barracks, Dublin. In October, 1934, he became financially embarrassed and tendered his resignation. He was upset by this matter as he did not know how he would find employment if he were to leave the army. A friend lent him £100 which sufficed to tide him over his difficulties at the time. The said John A. Stokes, who was married to a sister of the accused's wife, lived with his wife, child, and mother-in-law at 33 Mespil Road, aforesaid. The two families were friendly and met frequently. Some six weeks before the murder there was

an estrangement between them due to a trifling matter. Mrs. O'Brien (the accused's wife) continued to visit her relatives at 33 Mespil Road.

The afternoon of the day prior to the day of the crime Mrs. Stokes and two lady friends called at the accused's quarters but they were not admitted. On the day of the crime (Saturday, 3rd November,) the accused attended a military Court of Inquiry and performed his duties as usual.

The accused gave evidence and stated that on the day of the crime his wife went out with her brother after having attended to their child. The accused remained in the house amusing the child. At about 6.20 his wife returned alone. She seemed cross and upset. He asked her what was wrong with her. She asked him if he was going around with other women and giving them expensive presents. He said "No." After further conversation she said that she had been to Mespil Road and that the first thing her mother had said to her was "that she never thought she would see the day that a daughter would turn her own sister away from her house for the sake of that blackguard who was going about with other women and giving them expensive presents to the neglect of herself and the child." Accused became very angry and said"Who has said all this about me?" His wife replied"Jack said it, and he knows all about it." Accused replied:"I tell you that it is all false." His wife turned away, took up from a small table some parcels that she had brought in with her saying: "I don't know but that is how you are £200 in debt" and left the room.

Accused had several weapons at his quarters. Armed with two of these—revolvers—he went by bicycle to Mespil Road, a journey of some four minutes from Beggars Bush Barracks. He arrived at 33 Mespil Road within from five to ten minutes after the conversation with his wife already referred to. He knocked at the door. His mother-in-law, Mrs. Marie, opened the door. He asked her if Jack was in. She said that he was. A maid who was coming downstairs apparently heard this conversation for she called Stokes who was upstairs, and he came down and went into the sitting-room. The accused also entered this room, but whether before or after Stokes was not clear. Mrs. Marie entered the room and saw Stokes standing with his back to the fire and the accused standing opposite to him with a table between them. There was a revolver lying on the table—the smaller of the two taken from his quarters by the accused. Mrs. Marie was deaf. There was a conversation which she could not follow. Mrs. Stokes went in after her mother and, seeing the weapon on the table, said: "In the name of God, Jack, what is that?" Stokes replied: "It is a gun and a real one." Stokes then said: "Well, Leo, up to last night I have held my tongue," and then Mrs. Stokes heard the accused say, "You have finished my life with Leonie and now I am going to finish yours." Almost immediately after three shots were fired, each of which struck Stokes, who died as a result. The accused put the gun with which he had fired at Stokes into his pocket, and left the room, walking over the legs of the dying man. The women present attempted to stop him, but he pushed his way past them saying he was going to give himself up to the police.

Accused stated further in his evidence that his next recollection after his wife had left the room in which she had spoken to him was that of being charged in the police station at Irishtown where he was charged shortly after 11 p.m. on the night of the crime with the murder. The accused in his evidence also stated that the first time he learned that he had been arrested for the murder of Stokes was in an interview with his wife and her brother Louis Marie. He was unable to fix the time of that interview. During Sunday night the accused said to a Civic Guard at the Bridewell that he understood he had cycled to Irishtown to give himself up.

A number of witnesses were examined, including many medical men. The evidence given established the following further facts:—

The murder took place at, approximately, 6.30 p.m. At, approximately, 7.10 p.m. the accused was arrested at his quarters at Beggars Bush Barracks, charged with murder, and cautioned. A moment or so afterwards accused asked the detective officer who had arrested him, "Is he dead?"The detective replied that he was, whereupon the accused said, "It serves him d---- well right." The accused was brought to the police station at Irishtown. On the way he again asked, "Is he dead?" and on being informed that he was, replied, "He is no loss." At the police station he stated that he [Stokes] was no loss. The accused was brought from Irishtown police station to the...

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