Attorney General v Levison
|01 February 1932
|01 February 1932
|Court of Criminal Appeal (Irish Free State)
Court of Criminal Appeal
Criminal appeal - Evidence of accomplice - Right of jury to accept such evidence without corroboration - Jury warned by Judge as to nature of such evidence - Accomplice having admitted committing perjury - Majority verdict - Juries (Protection) Act, 1929 (No. 33 of 1929), sect. 5, sub-sect. 1.
It is not the province of the Court of Criminal Appeal, nor has it the right, to re-try questions that have already been tried by a jury. The duty of the Court is to see that the jury are properly instructed in point of law, that the nature of the questions which they have to try and of the evidence relevant thereto is clearly and sufficiently explained to them by the trial Judge, and that the evidence before the jury is legally sufficient to support their findings. If these conditions are fulfilled, and no other sufficient reason appears for disturbing the verdict, then the verdict of the jury must stand, even though the Court, if it were competent to try the question of fact, might have arrived at a different finding from that of the jury.
So held by the Court of Criminal Appeal.
Accused was tried on indictment on two charges: 1, with being a principal in the second degree to unlawfully using an instrument on one, B. K., with intent to procure her miscarriage; and 2, with conspiring with one, M. R, and other persons unknown to commit the said offence. Accused was convicted on both charges and sentenced. The trial Judge refused to grant a certificate that the case was a fit one for appeal, and from that refusal the accused appealed to the Court of Criminal Appeal. The material evidence was that of B. K. on behalf of the prosecution, and that of the accused on his own behalf. B. K.'s evidence was impeached on the ground that she was a consenting party to the operation, and was accordingly an accomplice, and that she admitted having committed perjury in connection with the case. The only corroboration of her evidence relied on by the prosecution was portion of the accused's own evidence.
Held that, even assuming that there was no corroboration of B. K.'s evidence, the jury were entitled to act on the uncorroborated evidence of an accomplice as they had been duly warned by the trial Judge, and, as the evidence was sufficient to support their finding, their verdict could not be set aside, and leave to appeal must be refused
Hyman Levison appealed under sect. 63 of the Courts of Justice Act, 1924 (No. 10 of 1924) from an order of the Circuit Court Judge for Dublin, Judge Davitt, refusing to grant him a certificate that his case was a fit case for appeal to the Court of Criminal Appeal.
The appellant had been charged, together with one, Marks Rubenstein, with the following offences:—
Count No. 1. Accessory before the fact to using an instrument to procure miscarriage. Count No. 2. Principal in the second degree to using an instrument to procure miscarriage. Count No. 3. Conspiracy to use an instrument to procure miscarriage. Count No. 4. Administering poison with intent to procure miscarriage, contrary to sect. 58 of Offences Against the Person Act, 1861.
The following were the particulars of the foregoing offences:—
Count No. 1. Marks Rubenstein on a date or dates to the jurors unknown, in the month of April, 1931, in the County of the City of Dublin, did counsel, procure, and command Hyman Levison and a person to the jurors unknown to unlawfully use an instrument on a woman named Bridie Kelly, with intent to procure the miscarriage of the said Bridie Kelly. Count No. 2. Hyman Levison on a date to the jurors unknown in the month of April, 1931, in the County of the City of Dublin, was present aiding and abetting and assisting a person to the jurors unknown to unlawfully use an instrument on a woman named Bridie Kelly with intent to procure the miscarriage of the said Bridie Kelly. Count No. 3. Marks Rubenstein and Hyman Levison on divers days to the jurors unknown in the month of April, 1931, in the County of the City of Dublin, conspired together and with other persons unknown, with intent to procure the miscarriage of a woman named Bridie Kelly, to unlawfully use an instrument or some other unknown means. Count No. 4. Marks Rubenstein on divers dates to the jurors unknown in the month of September, 1931, in the County of the City of Dublin, with intent to procure the miscarriage of a woman named Bridie Kelly, unlawfully caused to be taken by her a poison or other noxious thing, the nature of which is unknown.
Marks Rubenstein and Hyman Levison were tried together. Rubenstein was found guilty upon the first and third counts and not guilty upon the fourth count. Hyman Levison was found guilty upon the second and third count, and was sentenced to three years penal servitude upon the second count and to twelve months' imprisonment upon the third count, both sentences to run concurrently. Hyman Levison applied to the trial Judge for a certificate that his case was a fit case for appeal, but the trial Judge refused to grant it...
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