People (Attorney General) v Thornton

• Jurisdiction: Ireland
• Judgment Date: 01 January 1952
• Date: 01 January 1952
• Court: Court of Criminal Appeal

The People (Attorney General v. Thornton

THE PEOPLE (at the suit of the Attorney General)

and

MARTIN THORNTON (1)

Court of Criminal Appeal.

Criminal law - Attempt - Evidence - Attempt to obtain poison or other noxious thing to procure miscarriage of girl - Conversation between accused and medical doctor treating girl - Accused enquiring, "Wasn't there some drug named ergot?" - Enquiry capable of construction other than that charged - Failure to prove criminal intention - Sufficiency of direction to jury - Distinction between evidence of attempt and evidence of intention.

The appellant was acquitted on several charges of having unlawful carnal knowledge of a girl, but was convicted for that he did unlawfully attempt to procure a poison or other noxious thing called ergot, knowing that it was intended to be unlawfully used or employed to procure the miscarriage of the girl. The prosecution, in respect of this latter charge, adduced evidence of a conversation alleged to have taken place between the accused and a medical doctor, who at the material time was treating the girl, in the course of which the accused asked the doctor, "Wasn't there some drug named ergot?" On an appeal by the accused to the Court of Criminal Appeal it was

Held that the conviction must be quashed, as the evidence was consistent with explanations which did not necessarily involve an attempt by the accused to obtain ergot for the purpose alleged.

Held further that on a charge based on an alleged attempt to commit a crime, the jury should be informed by the trial Judge that a mere desire to commit the crime, or a desire followed by an intention to do so, is not sufficient to constitute all attempt.

Criminal Appeal.

The applicant, Martin Thornton, was tried in the Circuit Court (Judge Wyse Power) at Galway on charges of having unlawful carnal knowledge of Mary McDonagh, a domestic servant at the appellant's house, on a number of occasions, both when she was under and over the age of fifteen years, and of unlawfully attempting to obtain ergot, knowing that it was intended to be used unlawfully for the purpose of procuring a miscarriage of the said girl. The applicant did not give evidence at the trial; he sought a direction at the close of the case for the prosecution, but his application was refused. The evidence upon which the prosecution relied in respect of the charge of unlawfully attempting to obtain ergot showed that the applicant had on three occasions visited a medical doctor, who at the material time was treating Mary McDonagh, and, having asked the doctor whether he would give the applicant a prescription to interfere with the pregnancy of Mary McDonagh, and his request having been refused, he asked the doctor, "Wasn't there some drug named ergot?" He was aquitted by the jury on all counts save that of attempting to obtain ergot, knowing that it was intended to be used for the said purpose. The applicant was sentenced to one year's imprisonment and an application

for a certificate for leave to appeal was refused by the trial Judge. The applicant applied to the Court of Criminal Appeal for leave to appeal.

The judgment of the Court was delivered by Haugh J.

Haugh J. :—

The applicant was tried at the Circuit Court at Galway on an indictment containing seven counts. Of these, only counts 1, 2, 3 and 5, were allowed to go to the jury.

In substance he was charged with having unlawful carnal knowledge of one, Mary McDonagh, on a number of occasions, both when she was under, and over, the age of fifteen years. In addition, on the fifth count, he was charged that he did unlawfully attempt to procure a poison or other noxious thing called ergot, knowing that it was intended to be unlawfully used or employed to procure the miscarriage of the said Mary McDonagh.

There was sufficient evidence to support a conviction on the first four counts, if the jury was prepared to act on it. After a long and patient hearing they elected to acquit the

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