The State v McMullen

• Jurisdiction: Ireland
• Judgment Date: 25 July 1925
• Date: 25 July 1925
• Court: Court of Criminal Appeal (Irish Free State)

Court of Crim. App.

The State v. M'Mullen

THE STATE

and

FELIX M'MULLEN (1)

Criminal appeal - Police officer killed - Attempting to apprehend felon - Prisoner charged with murder - Manslaughter excluded - Judge's direction - Discharge of jury - Second trial - Duty of Judge.

Criminal Appeal.

The appellant, Felix M'Mullen, was with one, Peter Jordan, tried at the Central Criminal Court on July 7th and 8th, 1924, for the wilful murder on January 28th, 1924, of Patrick O'Halloran, a member of the Civic Guard at Baltinglass, County Wicklow. The jury disagreed, and were discharged. Both prisoners were put on trial again on July 10th, 1924, and the appellant was found guilty by the jury, and sentence of death was passed by the Judge (O'Shaughnessy J.). Jordan was acquitted.

On January 28th the two accused were driven from Dublin to Baltinglass in a hired motor-car. Each of the men was armed with a revolver. Upon arrival at Baltinglass they drove first to the Post Office and next to the National Bank. Having satisfied themselves that there was no telephone at either place, they ordered the chauffeur to drive back towards the Post Office and to remain there until their return. The car was then facing towards Dublin. The accused then went back to the bank. They informed a clerk that they wanted to see the manager. The manager, Mr. M. Woulfe, with a customer was then in an apartment, called the boardroom, off the office. When the manager opened the door for the two men, Jordan, holding a revolver in his direction, shouted: "Hands up; hand over the keys." M'Mullen, then inside the counter, had the bank teller covered with his revolver. The manager drew a pistol from his pocket, and presented it at M'Mullen and Jordan in turn. A shot was discharged from M'Mullen's revolver, and the manager, wounded, fell to the ground. When he cried for help M'Mullen threatened to blow his brains out if he did not "shut up." After the manager had been shot his wife entered the office, and when one of the clerks asked her to go for a doctor M'Mullen told her to go back or he would shoot her. Mrs. Woulfe, however, disobeyed the order. She ran out, M'Mullen followed her, but returned immediately, and closed the door leading into the street. During the interval in the bank Jordan asked a clerk where was the safe? When Mrs. Woulfe reached the street she shouted: "Help, help, there's a raid on the bank." Guard O'Halloran, in uniform, hastened towards the bank, knocked at the door, then kicked it; but there was no answer, and he took out his whistle and blew it. Joseph Germain, a resident in the town, handed the Guard an automatic pistol. The two prisoners emerged from the bank and ran along the street towards the motor-car. They were pursued by Guard O 'Halloran, who called upon them to halt. According to one witness M'Mullen turned round, and fired at the Guard who fell mortally wounded. Other eyewitnesses said that the prisoners were running backwards. Practically all the witnesses agreed that the shot which killed the Guard was fired by M'Mullen. The further facts are set out in the judgment of the Chief Justice.

Shortly after he had been arrested M'Mullen made a signed statement to the Inspector of the Detective branch of the Dublin Metropolitan Police in the course of which he said: "We left the bank and ran across the street. When we were running across the street I put the gun behind my back and fired a shot. We went to the car, which was at the Post Office, and came back to Dublin. I did not know the Civic Guard was wounded until I seen (sic) it in the paper next day."

On the occasion of the first trial, while counsel for the accused was addressing the jury, O'Shaughnessy J. said: "I won't allow any question of manslaughter in this case. I won't allow any such thing to be discussed by the jury. It is a case of murder or nothing." Counsel submitted that if the shot was fired by M'Mullen accidentally in the heat of the moment. without any intention of hitting, that that would reduce the crime from murder. The Judge said that the killing of a police officer in apprehending, or attempting to apprehend a felon, had never been reduced to manslaughter. He accordingly directed the jury that it was a case of murder or nothing.

The jury were discharged for failure to agree upon a verdict. The report of the discussion which took place between the foreman and the Judge is set out fully in the judgment of the Chief Justice.

When the prisoners were arraigned for the second time on July 10th their counsel made the two following objections in writing:—

(1) The prisoners by their counsel respectfully object to being a second time put upon their trial upon the indictment for wilful murder, inasmuch as a jury has been already empanelled to try the said indictment, and intimated to the learned Judge presiding at the said trial that they had agreed to find the prisoners guilty of manslaughter only, if they had power to do so, and were directed by the learned Judge that they had no power to do so; and such direction was not in accordance with law.

(2) The prisoners by their counsel respectfully apply to have their trial postponed until a new panel of jurors has been summoned, on the ground that a fair and impartial trial by the jurors on the present panel has been imperilled by the comments of the learned Judge at their former trial in the presence of the present panel upon the failure of the jury to convict the said prisoners of wilful murder.

These objections were overruled by O'Shaughnessy J., who said that the statement as to what occurred at the first trial was incorrect.

At the close of the case for the prosecution O'Shaughnessy J. ruled that the counsel for the accused would not be permitted to address the jury on the question of manslaughter.

The jury convicted the appellant, M'Mullen, of the wilful murder of Guard O'Halloran and acquitted Jordan. At the close of the trial O'Shaughnessy J. refused to grant a certificate under sect. 31 of the Courts of Justice Act, 1924 (No. 10 of 1924), that the case was a fit case for appeal, and from that refusal the appellant appealed. Application was also made for an order granting leave to appeal from the conviction of the appellant of wilful murder. The grounds for the appeal were as follows:—

(1) The said Felix M'Mullen had, previous to the said trial, been tried upon the same indictment for wilful murder by a jury, lawfully empanelled to try such indictment, on July 7th and 8th, 1924. The jury at the former trial had been directed by the learned Judge that they had no power to find a verdict of manslaughter upon the indictment; and after the jury had intimated that they desired to find such verdict of manslaughter, they were directed by the learned Judge that they had no power to do so; and such direction was wrong in point of law.

(2) There was no disagreement of the jury at the first trial as they agreed to find the verdict of manslaughter against Felix M'Mullen, which verdict ought in point of law to have been received and recorded.

(3) The learned Judge had no power to adjourn the trial on the ground of a disagreement of the jury unless and until he had directed the jury that they had power to find a verdict of manslaughter on an indictment for wilful murder.

(4) The learned Judge at both trials directed the jury that there was no evidence upon which they could find Felix M'Mullen guilty of manslaughter, which said direction was wrong in point of law.

Two men, F. M. and P. J., armed with revolvers, entered a bank for the purpose of committing a robbery. When they emerged from the bank they were pursued by a Civic Guard in uniform, who called upon them to halt. F. M. fired from his revolver, and shot the Guard dead. Both men were put on trial for wilful murder. The Judge at the trial refused to allow counsel for the accused to address the jury on the question of manslaughter, and directed the jury that the killing of a police officer in apprehending, or attempting to apprehend, felons was murder or nothing. The jury, having deliberated for some time, returned to Court, and the foreman asked the Judge: "Can we reduce the crime to one of manslaughter?"The Judge, having replied in the negative, sent back the jury. They returned again, and the foreman, having announced that they were still unable to agree, the Judge asked if he could assist them in any way, and the foreman said: "Alter the charge as I suggested—if you could alter the charge—." The Judge again said that that could not be done, and the jury were again sent back; and when asked on their third return "Have you agreed?" the answer was "No." They were then discharged, and two days later the accused were again put on trial for the murder.

Counsel for the prisoners objected to their being put on trial again for murder, on the ground that at the first trial the jury had intimated that they had agreed to find a verdict of manslaughter if they had the power to do so, and that the direction by the Judge to the contrary was wrong. The objection was overruled, and, at the close of the case for the prosecution, the Judge again ruled that the question of manslaughter...