Thomas Shea, in Error, v The Queen. William Dwyer, in Error, v The Queen

• Jurisdiction: Ireland
• Judgment Date: 06 May 1848
• Date: 06 May 1848
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

THOMAS SHEA, in Error,

and

THE QUEEN.

WILLIAM DWYER, in Error,

and

THE QUEEN.

Rex v. M'DermottENR R. & R. 356.

Rex v. Stevens 1 M. C. C. 409.

v. Murrow 1 M. C. 456.

Rex v. Sheard 2 M. C. C. 13.

Rex v. BeckettENR 1 m. & Rob. 526.

Rex v. Withers 1 m. C. C. 294.

Rex v. HarrisENR 7 C. & P. 446.

Rex v. Ellis 5 . & C. 395.

Rex v. JenningsENR 2 Lewin, C. C. 541.

Rex v. Cadman 1 M. C. C. 114.

Regina v. CruiseENR 8 C. & P. 541

Powell v. SonnettENR 3 Bing. 381.

Cosey v. DiggonsENR 2 B. & Al. 546.

Edge v. Wandesford 9 Ir. Law Rep. 161.

Tinkler v. RowlandENR 4 Ad. & E. 868.

Conway v. The Queen 7 Ir. law Rep. 161.

Beecher's caseENR 8 Coke, 59, f.

Regina v. Downing and Powis DEn. C. C. 52.

Rex v. Hayes 2 Lord Raym. 1518.

O'Connell v. The Queen 11 Cl. & F. 296, 374.

Rex v. PayneENR 4 C & P. 558.

Fogarty v. The Queen 10 Ir. Law Rep. 53.

Regina v. Jones 7 Ir. Law Rep. 336.

Rex v. Butterworth R. & R. C. C. 520.

Regina v. JonesENR 8 C. & P. 777.

The King v. Briggs 1 M. C. C. 318.

The Queen v. Jones 2 Moo. C. C. 94.

The King v. ServaUNK 1 Cox Cr. C. 292.

ENR 1 Russ. 731.

CASES AT LAW. 153 E.• T. 1848. Queen'sBeneh. THOMAS SHEA, in Error, v. THE QUEEN. WILLIAM DWYER, in Error, v. THE QUEEN. May 5, 6. IN this case the plaintiffs in error had' been tried and convicted at An indictment the Spring Assizes of 1848 for the King's County, before the Lord cAh a r dw itthhat a CHIEF JUSTICE, upon an indictment framed under the provisions of bull of nad gshuont () the statute 7 W. 4 and 1 Vie. c. 85. The first count was as fol- n&icoIlfyelo- did lows :- strike, pene trate and "King's County, " The jurors for our Lady the Queen upon their wound C with intent in to wit. i "oaths do say and present that Thomas Shea, of, &c. feloniously to "William Dwyer, of, &c., and a certain person to the jurors aforesaid kill and mur der, and that "unknown, being evil disposed persons, and not having the fear of E F was aid ing and abet " God before their eyes, but being moved and seduced by the insti- ting. The indictment " gation of the devil, on the 5th day of November, in the eleventh contained eight other "year of the Queen, &c., with force and arms, at, &c., in and upon counts, some charging the "Stephen Dobbyn, in the presence of God and our Lady the Queen prisoners with "then and there being, feloniously did make an assault,.and that cnaepsitalanfdeloÂÂ" the said Thomas Shea a certain gun then and there loaded and ionthgertsracnhsgarogrt-- " charged with gunpowder and one leaden ball, and divers leaden aTbhlee felonies. "shot, which gun the said Thomas Shea in both his hands then were found guilty upon " and there had and held, at and against and upon the said Stephen the first count, and sentence "Dobbyn then and there feloniously did shoot off and discharge ; of death awarded ; and " and that the said Thomas Shea, with the leaden ball and shot the jury were discharged " aforesaid, out of the gun aforesaid, then and there by force of the from giving any verdict G°gunpowder shot and sent forth as aforesaid, the said Stephen upon the other "Dobbyn, in and upon the left arm and left thigh of him the said counts. Held, that " Stephen Dobbyn, then and there feloniously did strike, penetrate the first count schargeduflcientlayn " and wound, with intent in so doing him the said Stephen Dobbyni offence within the meaning of 7 W. 4 and c. 85, s. 2. Held, that the averment that the injury inflicted was dangerous to life was unÂÂnecessary. Held also, that the discharge of the jury from giving a verdict upon the issues joined upon the other counts was no ground of error. 154 CASES AT LAW. "then and thereby feloniously, wilfully and of his malice prepense " to kill and murder ; and that the said William Dwyer and the said "person to the jurors unknown, at the time of committing the felony "aforesaid, then and there with force and arms, at, &c., feloniously, " unlawfully and maliciously were present, feloniously " counselling, aiding and abetting the said Thomas Shea, the felony " aforesaid, in manner and form aforesaid, to do and commit, against "the peace," &c. The second count charged Thomas Shea with shooting at Dobbyn with intent to disable him, and that Dwyer was present aiding and abetting. In the third count the offence was charged with intent to do some grievous bodily harm. The fourth count charged a wounding (as in the first count) by Dwyer, with intent to murder, and that Shea was present aiding and abetting. The fifth and sixth counts charged Dwyer with shooting at Dobbyn, with intent to disable and to do some grievous bodily harm, and that Shea was present aiding and abetting. The seventh count charged a wounding by a person unknown, with intent to murder, and that Shea and Dwyer were present aiding and abetting. The eighth count charged a shooting at, by a person unknown, with intent to disable, and that Shea and Dwyer were present aiding and abetting. The ninth count charged a shooting at, by a person unknown, with intent to do some grievous bodily harm, and that the prisoners were present aiding and abetting. The record then set out the plea of not guilty, and that issue was joined thereon-the venire and empanelling of the jury ; and that the jury found that Thomas Shea and William Dwyer were guilty of the felony in the first count charged ; and that, as to the several issues joined on the second and other counts, the jurors were by the Court discharged from giving any verdict upon the several issues joined upon those counts. The record then stated the sentence of death and execution. CASES AT LAW. 155 Separate writs of error having been sued out, causes were asÂÂsigned, that the judgment of death was not warranted by any matter stated on the record, that there was a misjoinder of counts, and that the jury ought not to have been, and could not be legally, discharged from finding a verdict upon the issues joined upon the second and other counts of the indictment. E. T. 1848. Queen' sBench. SHEA V. THE QUEEN. Hayes, with whom were Macdonogh and J. A. Curran, for the plaintiffs in error. The errors relied on in this case are, first, that upon the first count of this indictment a sentence of death could not be legally pronounced. It only authorised a sentence of transportation. This count is framed under the statute 7 W. 4, and 1 Vie. c. 85. It charges that Thomas Shea did strike and wound S. Dobbyn with intent to kill and murder him. To make that an offence within the 2nd section of the statute, the indictment ought to have stated that the wound was dangerous to life ; for that section enacts, " that " whoever shall administer poison, &c., or shall stab, cut or wound " any person, or shall by any means whatsoever cause to any person " any bodily injury dangerous to life, with intent, in any of the cases " aforesaid, to commit murder, shall be guilty of felony, and being "convicted thereof shall suffer death." The first enactment upon this subject is 1 & 2 G. 3, c. 58 (Lord Ellenborough's Act). In that statute a number of acts, with a number of intents, are enumerated, any one of which subjected the offender to capital punishment; then came 10 G. 4, c. 34, which classifies these several intents. This statute was enacted in conse - quence of the want of generality in the previous Act, and the word " wound" is introduced into it. In that statute the word " wound" is confined to a particular class of offences, and has a specific meanÂÂing attached to it. The injury averred in this indictment does not come within the legal meaning of the word " wound :" Rex v. 2IEDermot (a). The wound must be inflicted by some instruÂÂment capable of stabbing or cutting : Rex v. Stevens (b); Rex (a) R. & R. 366. (b) 1 M. C. C. 409. 156 CASES AT LAW. E. T. 1848. v. Murrow (a) ; Rex v. Sheard (ii); Rex v. Beckett (e); Rex v. Queen's Bench. Withers (d); Rex v. Harris (e). The 1 Vic. c. 85, makes a fur SHEA ther classification of...