Patrick O'Brien, in Error, v The Queen

• Jurisdiction: Ireland
• Judgment Date: 29 January 1847
• Date: 29 January 1847
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

PATRICK O'BRIEN, in Error,

and

THE QUEEN.

Rex v. KellyENR 1 Mood. C. C. 113.

Rex v. Thompson Ib. 139.

O'Connell v. The Queen 11 Cl. & F. 155.

Rex v. HayesENRENR 2 Ld. Raym. 1518; S. C. 2 Str. 843.

Regina v. O'Brian and othersUNK Den. Cr. C. 20; S. C. 1 Cox, Cr. C. 126.

Rex v. WatersENR 7 C. & P. 250.

The Queen v. Downing and Powys 1 Cox, C. C. 156.

The Queen v. Downing 1 Cox, C. C. 158.

Campbell and Haynes v. The QueenENR 1 Cox, 269; S. C. 15 Law Jour. 78, M. C.

Rex v. BathurstENR Say. 225.

Grant v. Astle Doug. 730.

Regina v. Ingram and wifeENR 1 Salk. 384.

Regina v. Rhodes 2 Ld. Ray. 887.

Mackally's case 9 Cok. 67; S. C. Plowd. 101.

Young and others v. The KingENR 3 T. R. 98.

Rex v. Pewtress 2 Stra. 1026.

Rex v. BenfieldENR 2 Burr. 985.

Peake v. Oldham Cowp. 275.

Rex v. FullerUNK 1 B. & P. 180.

Rex v. PowellENR 2 B. & Ad. 75.

Rex v. UrlynENR 2 Saund. 308.

A. G. v. Vew LletteENR 10 Price, 9.

Rex v. TomlinsonENR 6 C. & P. 370.

Greenacre's caseENR 8 C. & P. 35.

Regina v. WaltersENR Car. & M. 164.

Regina v. HigginsonENR 1 Car. & Kir. 129.

Witham v. Earl of Derby 1 Wils. 56.

Rex v. HugginsENR 2 Ld. Raym. 1574.

Rex v. KeateENR Comb. 408.

The Queen v. Servia and others 1 Cox, C. C. 292.

Rex v. ClarkeENR 1 Br. & B. 473.

Rex v. HindmarshENR 2 Leach, 569.

CASES AT LAW. 337 H. T. 1847. Queen'sBench. PATRICK O'BRIEN, in Error, v. THE QUEEN. Witxp of error, brought by the prisoner Patrick O'Brien, to reverse a judgment against him on an indictment for the murder of his wife Johanna O'Brien. The trial and conviction were had before JACKSON, J., at the Summer Assizes of 1846 for the county of Clare. The indictment contained three counts. The first count charged that "Patrick O'Brien, on the 24th of July 1845, in the ninth year "of the reign of the Queen, at Kilkee, in the county of Clare, in and "upon one Johanna O'Brien feloniously, &c., did make an assault; " and did then and there take her in both his hands, and then and "there feloniously cast, throw and push her, the said Johanna " O'Brien, into a certain part of the sea ; by means of which said "casting, throwing and pushing the said Johanna O'Brien was " then and there choked, suffocated and drowned; by means of " which she then and there instantly died. And the jurors say, "that the said Patrick O'Brien her the said Johanna O'Brien feloÂ" niously, &c., did kill and murder in manner and form aforesaid." The second count charged, that "he the said Patrick O'Brien, on "the same day, did make an assault on the said Johanna O'Brien, "and with a certain stone, which he then had in his right hand, in " and upon the right side of the head of the said Johanna O'Brien "did strike, giving unto her a mortal wound of which she then and "there instantly died. And the jurors say, that the said Patrick " O'Brien did feloniously, &c., kill and murder the said Johanna "O'Brien in manner and form last-aforesaid." 338 CASES AT LAW. The third count charged, that-" he the said Patrick O'Brien, on " the same day, did assault the said Johanna O'Brien, and with both " his hands and feet did cast and throw her on the ground, and, while " then and there lying, did, with his hands and feet, kick and beat her " about the breast, back, head, belly and sides, giving to her, by the " casting and throwing, as also by the striking, kicking and beating, " several mortal wounds of which she then and there instantly died ; "and so the jurors say that he feloniously did kill and murder her "the said Johanna O'Brien, in manner and form last aforesaid. To this indictment the prisoner pleaded "that he was not guilty " of the premises in manner and form as in the said indictment is "specified and charged against him." The jury having found "that "he the said Patrick O'Brien was guilty of the felony and murder " above charged against him, in manner and form as by said indictÂ" ment was above supposed against him ; judgment of death and " execution was thereupon pronounced on him." A writ of error having been brought upon this judgment, several errors were assigned, stating in substance :-That the prisoner was charged in three separate and distinct counts with the felony of murder, and the means of death stated in each count were inconsisÂtent with each other, while the verdict of the jury was general ; that it was uncertain whether the verdict was given on the first, second, or third counts ; that from this uncertainty it was impossible to pass judgment upon any one of the counts ; that the means of death in the three counts stated were inconsistent and repugnant ; that the finding of the jury being that he was guilty of the felony and murder aforesaid, it was uncertain upon which of the counts that verdict was given ; that the verdict should have been given upon one count only of said indictment, and that it should appear on the record on which of the counts it was pronounced ; and further, that the indictment was bad in law for duplicity, the same felony being charged three times in the same indictment. The prisoner having been brought up to this Court by habeas eo)pus, on the 26th of January, the case came on for argument. C. Copinger, for the prisoner. The judgment must be reversed, on several grounds. It is bad, for it is entered generally, without specifying upon what count of the indictment it has been so entered : it is bad also, for the prisoner is charged with murder by repugnant and contradictory means ; the death is alleged in each count to have been caused instantly by the means therein stated ; arid if in one count death was caused by the fracture of the head, it could not have been caused by drowning, as CASES AT LAW. 339 alleged in the other count ; and the finding of the jury is uncertain ; H. T. 1847. Bench. for it does not appear by which of these modes they determined he Queen's committed the offence. O'BRIEN It may be argued that as the first count states that the death was V. caused by drowning, therefore the second and third cannot be good, THE QUEEN. as the prisoner could not be said to have killed a person already dead, and that it was impossible the death could be instantaneous from the means stated in each count ; but these counts cannot be rejected as surplusage, for they state matter sufficient to support a count for murder. The practice in indictments is, to state the circumstances which caused the death in various ways, provided these be part of the same transaction ; no objection therefore could have been taken in the Court below that the prisoner had been tried for distinct offences ; and these circumstances must be stated with precision to enable the prisoner to plead autre fois acquit, if another charge be made against him arising out of the same transaction. If it appear upon the evidence that the means employed to effect the crime were not those averred in the indictment, the jury are bound to acquit the prisoner upon that indictment : Rex v. Kelly (a); Rex v. Thompson (b). It is impossible in this case that the evidence which could convict on one count could do so on either of the others ; there must have been therefore before the jury some evidence of the particular mode by which the death was caused, to warrant the finding, so that this verdict cannot apply to all the counts. This is analogous to a civil action where there are several counts, and a verdict for damages is entered generally ; if one count be bad, the plaintiff must apply to the Court for liberty to have a verdict entered on the good count, which cannot be done unless the evidence will warrant it, otherwise a venire de novo would be awarded ; for the Court has no power to say upon which count the damages are to be assessed.-[PEaannr, J. The principle in such case is, that it must be assumed that some damages were given on each count.]---If a motion had been made in arrest of judgment, the Court could not have said on which count judgment should have been entered, and the Crown should have taken care that a verdict was taken on some one count only. It may be said, that any one good count will support this finding ; the contrary has been decided by the case of O'Connell v. The Queen (c) ; and it is immaterial whether the punishment be fixed or discretionary : Rex v. Hayes (d); Regina v. O'Brian and others (e). (a) 1 Mood. C. C. 113. (b) Ib. 139. (c) 11 Cl. & F. 155. (d) 2 Ld. Raym. 1518; S. C. 2 Str. 843. (e) Den. Cr. C. 20; S. C. 1 Cox, Cr. C. 126. 340 CASES AT LAW. There the form of the indictment was held good, the modes by which• death was caused being substantially the same ; but it is plain from the observations of the Judges that if the causes of death had been inconsistent, as in the present case, they would have held otherwise. Rex v. Waters (a) is distinguishable from the present case ; for there the causes of death were not inconsistent ; and we are entitled here to assume that the jury were unable to say upon which count they found the verdict ; for there is nothing on the record to satisfy the Court how they came to their verdict. The Queen v. Downing and Powys (b) was an indictment for murder by shooting, against A and B, charging in one count A: as principal and B as present abetting ; and in the other count B as principal and A as abetting, and there was a general verdict of guilty against both ; but there the evidence was applicable to either count of the indictment. The jury may have been satisfied that the prisoner murdered the woman...