CON. CRIMINAL LAW AMENDMENT ACT, 1885,
SECTION 7.

Glasgow, 10th and 22nd January 1924. John Cameron, whose domicile has been sisted as the Sheriff-Clerk's Office, Glasgow, you are indicted at the instance of the Right Honourable William Watson, His Majesty's Advocate, and the charge against you is that you did, on 8th September 1923, at 76 North Woodside Road, Glasgow, and elsewhere in Glasgow, take Jane Ann Morrison Donaghue, residing at 76 North Woodside Road aforesaid, aged seventeen years, she being an unmarried girl under the age of eighteen years, out of the possession and against the will of her father, John Donaghue, who resides at 76 North Woodside Road aforesaid, the said John Donaghue being the person having the lawful care or charge of the said Jane Ann Morrison Donaghue, with intent that she should be unlawfully and carnally known by you, and did take her to Ardrossan, Belfast, and Paisley, with the intent foresaid, contrary to the Criminal Law Amendment Act, 1885, section 7.

The complainer averred:

I. The complainer is a cinema operator, and is twenty-five years of age.

II. On or about 3rd January 1924 an indictment was served upon the complainer charging him with a contravention of the Criminal Law Amendment Act, 1885, section 7.

III. At a preliminary diet on 10th January 1924 a law agent for the complainer took objection to the relevancy of the indictment in respect that the species facti libelled did not infer the contravention charged. The said objection having been repelled, the complainer pleaded not guilty.

IV. On 22nd January 1924 the case proceeded to trial in the Sheriff-Court at Glasgow before Mr Sheriff-Substitute Blair and a jury.

V. At the close of the evidence the prosecutor and an agent for the complainer addressed the jury, and thereupon the Sheriff summed up the evidence.

VI. At the conclusion of his charge to the jury the Sheriff read out to the jury, from a sheet of paper which he had before him, two questions, and directed the jury that if they were able to answer both questions in the affirmative it was their duty to return a verdict of guilty as libelled against the complainer. The Sheriff handed the said sheet of paper to the foreman of the jury in order that they might have the said questions before them on retiring to consider their verdict.

VII. The jury returned a verdict of "guilty as libelled," and the Sheriff, imposed a sentence of twelve months' imprisonment, with hard labour.

VIII. The two questions read to the jury by the Sheriff-Substitute, and as set out on the sheet of paper handed by him to the foreman of the jury, were the following:

"(2) Did he have carnal connection with her during the period she was away with him ? "

It is believed and averred that the said sheet of paper is now in the possession of the respondents. It bears nothing except the above two questions.

IX. The complainer submits that the said proceedings and conviction and sentence were irregular, illegal, and oppressive. The terms of said indictment do not infer the contravention of said statute libelled and of which the complainer was convicted. Further, and in any event, the Sheriff-Substitute was not entitled to hand said paper to the jury to substitute for the terms of the indictment, as he did, the written questions which he submitted to the jury, or to give them the direction above referred to. The jury were thereby misdirected and were entirely misled as to the meaning of said indictment; and, in particular, the question of intent was withdrawn from their consideration. In the circumstances the verdict of the jury did not infer guilt on the part of the complainer of the contravention of said statute libelled, and it is submitted that the sentence and imprisonment which the complainer is now undergoing are wrongful and illegal.

The respondents averred, inter alia :

6. Admitted that towards the end of his charge the Sheriff-Substitute read to the jury two questions from a sheet of paper, and that he handed the said paper to the foreman of the jury. Quoad ultra denied. Explained that the Sheriff-Substitute summed up the whole evidence to the jury, and informed them that they were the sole judges upon the facts in the case. He pointed out what in law the jury would require to hold proved. He stated that as regards the facts that the girl was unmarried, and that she resided with, and under the care of, her father, there was no dispute; and that the fact of her being taken away by the complainer out of her father's possession to Ardrossan, Belfast, and Paisley, all without the knowledge of her father, was a matter with regard' to which also there was no dispute. With regard to the question as to whether what had been done was against the will of her father, the jury had heard the evidence and would judge.

He then dealt with the evidence in detail, and put to the jury what the defence had attempted to set up, viz.: That the father had no real objection to his daughter being taken away by complainer in the circumstances which the case disclosed, so long as he was able to levy blackmail upon the complainer and his father. That was the suggestion put forward by the defence, and it was for the jury to say whether they believed that that suggestion was well founded. The members of the jury had seen the girl's parents in the box, and they had also seen the girl, and heard all of them give evidence. The jury would judge of the evidence they gave, and of their demeanour, together with the other proved facts in the case.

If the jury accepted the theory put forward by the defence that the father was a party to what had been done, then that was the end of the case, and the complainer would be acquitted.

Assuming on the contrary that the jury took the view that the girl's father was innocent of complicity in the abduction of his daughter, and that he spoke the truth when he said that his daughter's disappearance came as a great surprise to him, that on the night of her disappearance he searched the whole night, and reported her disappearance to the police, on the assumption, in short, that the jury believed the evidence for the prosecution, then they would proceed to consider the next question of importance in the case, namely, whether what the complainer did was done with the intention that he, the complainer, should unlawfully and carnally know her. This also was of the essence of the case. The SheriffSubstitute then reviewed in detail the evidence on this point, and directed the jury that they must themselves decide the question upon the evidence.

He proceeded to point out that there was a great deal of evidence to the effect that complainer not only took the girl away with the intent ascribed to him, but that he had in fact carried out his purpose, and had carnal knowledge of her on several occasions forcibly and against her will. Viewing the whole matter, therefore, it appeared to the Sheriff-Substitute that the question of complainer's intention in doing what he was alleged to have done, would present to the jury no difficulty at all if they believed the evidence of the girl, with the ample corroboration which the case afforded, that the complainer had persistently made improper overtures to her, and had succeeded in having carnal intercourse with her forcibly and against her will. If they believed this evidence, the jury would not only be satisfied that his intention was as ascribed to him, but that he had carried it out.

The Sheriff-Substitute then stated to the jury that that was all he had to say on the matter. He said that two important questions in the case (he did not say the only two) should be kept before them in reaching their conclusion upon the whole evidence, and he had taken the trouble to write them out for their guidance as he thought they were important. (1) Did the accused take Jane Donaghue to Ardrossan and Ireland against the will of her father and mother in September 1923 ? (2) Did he have carnal intercourse with her during the period she was away with him ? The jury would judge upon the whole evidence and in reaching their conclusion they would keep these points before them as they appeared to the Sheriff

"4. The whole proceedings, and in particular the actings of the Sheriff-Substitute, having been regular and proper, the conviction should be sustained."

The case was heard before the High Court of Justiciary on 19th June 1924.

Argued for the Complainer: It was irregular to put written questions to the jury. If written questions were put they should be exhaustive and should deal with the crucial points in the case. The complainer had suffered owing to the irregularities which had taken place, and the bill of suspension and liberation should be granted.

Counsel for the respondents were not called upon.

On 19th June 1924 the Court refused the bill of suspension.

The Lord Justice-General (Clyde).-This suspension is brought upon two grounds.

In the first place the complainer alleges a departure from ordinary practice by the SheriffSubstitute who presided over the trial which, he says, is fatal to the conviction which followed. After the conclusion of the evidence, the SheriffSubstitute summed up the case to the jury as usual, but he did something in the course of that summing-up which is not usual. In the course of the charge he had put for the jury's consideration two questions which he said the

Advocate.

June 19, 1924.

to him, in name of compensation under and in terms of said Act, commencing the first of said weekly payments as at 9th February 1923 for the week preceding that date, and continuing said weekly payments thereafter until the same are competently varied or ended, with expenses.

The working was low.

603

At the point 2ND DIV.

M'Guire

v. John

June 5, 1924.

The case was heard before me on this date (30th October 1923), when the following facts were admitted or proved :

(2) That the injury was the displacement of the cartilage of the right knee.

(3) That when the cartilage slipped the pursuer and appellant was working in a low run of some 2 feet 4 inches to 3 feet high, securing it for the machine to work in, and was in the act of drawing his right leg under him in order to get into the necessary position to put up a prop.

(4) That the operation he was performing was an ordinary everyday operation, and the manner in which he was performing it, and the position into which he was drawing his right leg when the cartilage slipped, the usual and ordinary manner, and the position in which the operation is performed. (5) That the said cartilage had been displaced so many times before the occasion in question, that it was liable to come out again at any moment and without any appreciable extrinsic cause.

In these circumstances I found that the pursuer and appellant had failed to prove that the said injury was due to accident. Refused the crave of the petition and dismissed the same, and found the pursuer and appellant liable to the defenders and respondents in expenses.

The Question of Law for the opinion of the Court was:

Whether, on these facts, I was entitled to find that the pursuer and appellant had failed to prove that the injury which he sustained on 2nd February 1923 was due to accident?

The arbitrator appended the following note to his award :

The facts in this case are simple, and are, indeed, not in dispute. The cartilage of this man's right knee had been out so many times before the occasion in question that, on the medical evidence, it was liable to slip again at any moment and without any appreciable extrinsic happening to account for it. With the knee in that condition he was working as a pelter in a run of some 2 feet 4 inches to 3 feet in height. The nature of his work and the happening which has given rise to this case are sufficiently well described by himself, and his description was accepted by the employers. He says: "I was securing the machine run by straps and props for the machine, and needling holes above the coal to secure it for the cutting and for the safety of the machine.

into position to put up a prop. That is all that occurred. (Q.) That is the natural movement that you would make in order to put up a strap? (A.) For a man that is used to mining it is the position he usually gets into: he can work best in that position: he would draw his right leg under him as I did in order to get into the position to put up a strap." It is the medical evidence that the semi-flexed position

the position in which this man's leg was when he was drawing it under him—is the position in which a loose cartilage is most likely to come out without any apparent cause.

The question, in these circumstances, is whether or not this man was injured by accident? Was there an accident in the sense of the Act? The displacement of the cartilage was, I take it, the injury. In the last case in which this man was concerned there was an accident. There was a definite slip on, if I remember aright, a wet plate. Here it seems to me difficult to discover an accident. There was no slip nor unexpected strain, no jerk nor unlooked-for resistance nor pressure. The man was simply doing his ordinary work in the way that a pelter ordinarily does that work. I do not think, on the medical evidence, that it can even be said that the injury was unexpected. On the contrary, that evidence seems to me to establish the fact that such was the condition of the knee that the tolerable certainty was that the cartilage would come out again at any moment, and that without any appreciable cause being assignable. Now that, as it seems On thé to me, is exactly what happened here. whole matter, therefore, it seems to me that the pursuer has failed to prove that his injury was due

to accident.

The case was heard before the Second Division on 7th and 8th February 1924.

Argued for the Appellant: The cause of the workman's incapacity was displacement of the cartilage of the right knee while at work. That was an accident within the meaning of the Workmen's Compensation Act, 1906, section 1 (1). If this had been the first dislocation there would certainly have been ground for compensation (Hamlyn v. The Crown Accidental Insurance Co. Ltd., [1893] 1 Q.B. 750; Stewart v. Wilsons & Clyde Coal Co. Ltd., 1902, 5 F. 120; Fenton v. J. Thorley. & Co. Ltd., [1903] A.C. 443; Brintons Ltd. v. Turvey, [1905] A.C. 230; Clover, Clayton & Co. Ltd. v. Hughes, [1910] A.C. 242). It was immaterial to say that there disposition to injury (Ismay, Imrie & Co.

was

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