124 SING'S BENCH DIVISION.

[1910]

1910 [COTJET OF CRIMINAL APPEAL.]

April 22, 25 :
Mav 2. THE KING v. WHITE.
Criminal Law—Indictment for Murder—Conviction for Attempt—Punishment
—Criminal Procedure Act, 1851 (14 <fe 15 Vict. c. 100), s. 9—Offences
Against the Person Act, 1861 (24 & 25 Vict. c. 100), ss. 11—15.

A person who upon an indictment charging him with murder is con­

victed under s. 9 of the Criminal Procedure Act, 1851, of an attempt to
murder may be sentenced to penal servitude for life by virtue of the
provisions of ss. 11—15 of the Offences Against the Person Act, 1861.

to the Court of Criminal Appeal.

APPEAL
The prisoner was tried at the Birmingham Assizes on an
indictment charging that he on January 9, 1910, did murder one
Mary Ann White.
The deceased, who was the mother of the prisoner, was on
January 9, 1910, found dead in her house at Coventry. Upon a
table by her side was a wine glass containing a species of
. lemonade with which a small quantity of cyanide of potassium
had been mixed. The medical evidence went to shew that death
was not due to poisoning. No trace of cyanide was found in the
body. But the prisoner was proved to have purchased some
cyanide of potassium shortly before; and there was evidence
from which, as the Court held, the jury would be justified in
inferring that the prisoner had put into the deceased's glass the
cyanide that was found there and that he did so with intent to
murder her. The liquid in the glass did not contain sufficient
cyanide of potassium to have caused death if it had been
swallowed. It contained at the most two grains, whereas the
minimum fatal dose for an adult is five grains. The jury
convicted him of an attempt to murder her, and the judge
sentenced him to penal servitude for life. The prisoner appealed
against conviction and sentence.

Maddocks, for the appellant. The sentence imposed was not

justified by law. The judge had no power to impose a sentence
of penal servitude at all. Had the prisoner been charged under
2 K. B. KING'S BENCH DIVISION. 125

s. 14 of the Offences Against the Person Act, 1861, with 1910

attempting to cause poison to be taken by the deceased with ^
intent to murder her the sentence would have been a valid one. „r *•
WHITE,
But he was not indicted under that. Act. He was indicted for
murder, and upon such an indictment the only power to find
the defendant guilty of an attempt to murder is under s. 9 of the
Criminal Procedure Act, 1851. But the attempt of which a
person may be convicted under that section is the common law
offence of attempt to murder, which is a misdemeanour and is
punishable with a maximum punishment of two years' imprison­
ment. Sect. 14 of the Offences Against the Person Act, 1861,
is one of a group of sections (ss. 11—14) which are copied from
the earlier Act of 7 Will. 4 & 1 Vict. c. 85, and down to 1861
the offences therein specified were not treated as attempts to
murder. The word " attempt" was not used in the earlier Act.
The offences dealt with were acts done with intent to murder, a
class of acts which were always treated as distinct from attempts
to murder. This distinction between acts done with intent and
attempts is referred to by Kennedy J. in Rex v. Linneker (1), where
he says " Although an attempt implies the intent, an intent does not
necessarily imply an attempt"; and in the same case Walton J.
said " It is clear that all acts done for the purpose of committing
a crime are not attempts, for they may be merely acts of prepara­
tion." Of this the case of Reg. v. Roberts (2) is an illustration. It
was there said that though the act of procuring dies to be used for
the purpose of coining false money amounted to an attempt to coin
false money, merely going to a particular town for the purpose of
procuring such dies would not amount to such an attempt, the
act not being sufficiently proximate to the commission of the
offence intended. The case of Reg. v. Connell (3) is an authority
in the appellant's favour. There the prisoner was indicted
for murder and acquitted. She was subsequently put on her
trial on the same facts on a charge of administering poison
with intent to murder under 7 Will. 4 & 1 Vict. c. 85, and it
was held that the previous acquittal could not be pleaded in bar
of the indictment, which it could have been if the statutory
(1) [1906] 2 K. B. 99. (2) (1855) 7 Cox, C. C. 39.
(3) (1853) 6 Cox, C. 0. 178.
126 KING'S BENCH DIVISION. [1910]
1910 offence had been an attempt within the Criminal Procedure Act,
KEX 1851.
WHITE ^ *s * r u e ^afc when the Act of 1861 came to be enacted the group
of sections in question was headed with the words " Attempts to
Murder." But that heading cannot have the effect of altering the
well-recognized meaning which the words in the sections had
already acquired. Those sections must still be treated as creating
substantive statutory offences and not merely as imposing an
increased penalty upon all attempts to murder. If that had
been intended the obvious means of carrying out that intention
would have been to enact a single section providing that
whoever by any means shall attempt to commit murder shall
be guilty of felony and suffer the punishment therein pre­
scribed. By re-enacting the sections of the earlier Act the
Legislature shewed an intention to keep the old distinction
alive.
Further, even on the assumption that the prisoner put the
poison in the0 glass in contemplation of causing his mother's
death at a future date by administering a series of doses in the
belief that they would have a cumulative effect upon the recipient,
the act did not amount to an attempt, for it was not done with
an intent then and there to kill. The form of indictment for
administering poison invariably alleges that the poison was
administered " with intent thereby then feloniously . . . . to kill
and murder." And the evidence shewed that the quantity of
cyanide in the glass was not sufficient to kill. He had a locus
pcenitentiae, and might have changed his mind before he had
administered sufficient to cause death.
Ryland Adkins, for the Crown. The prisoner's act constituted
an attempt to kill, even if it was designed as one of a series of acts
of administering poison. The definition of an attempt is given
in Stephen's Digest of the Criminal Law thus: " An attempt to
commit a crime is an act done with intent to commit that crime,
and forming part of a series of acts which would constitute its
actual commission if it were not interrupted." The facts in the
present case come directly within that definition. No doubt, as
Sir James Stephen points out, "The point at which such a
series of acts begins cannot be defined; but depends upon the
2 K. B. KING'S BENCH DIVISION. 127

circumstances of each particular case." Mere acts of preparation l9io

for the commission of the offence are not enough, but the putting j ^
of the poison in the glass goes far beyond an act of preparation, y^^jTE
It is not necessary that the prisoner should have intended to
kill there and then. The word " then," although it occurs in the
indictment, is not to be found in the section which creates the
offence. Moreover, here the prisoner may have been ignorant of the
quantity of cyanide necessary to constitute a fatal dose, and may
have thought that what he put in the glass would kill at once.
Then if there was an attempt to murder the sentence imposed
was authorized by law, notwithstanding that the conviction was
under the Act of 1851. Sects. 11—15 of the Offences Against
the Person Act, 1861, include all possible kinds of attempts to
murder, and every conviction for an attempt to murder under the
Act of 1851 must come within one or other of those sections. (1)
The case of Reg. v. Connell (2) is distinguishable from the present
case, for it was decided under 7 Will. 4 & 1 Vict. c. 85, in
which Act there was no section corresponding to s. 15. That
Act did not apply to all possible attempts to murder, and there­
fore until 1861 it did not follow that, upon a conviction under the
Act of 1851, the particular kind of attempt which formed the
subject of the conviction was one for which the punishment of
penal servitude was awarded. The Act of 1861, instead of
codifying the law on the subject into a single section and enact­
ing that all attempts to murder should be punishable with penal
servitude, re-enacted the existing sections of the earlier Act and
then by s. 15 extended their provisions so as to apply to all other
kinds of attempts to murder. But the result is the same.
Maddocks in reply.
Cur. adv. vult.

(1) The Offences Against the for life. By s. 15 it provides that

Person Act, 1861, by ss. 11—14, deals ''Whosoever shall by any means
with certain specific acts done with other than those specified in any of
intent to murder, and also with the preceding sections of this Act
attempts to do such acts with a like attempt to commit murder shall be
intent. It makes all such acts and guilty of felony " and shall be liable
attempts felony punishable with a to the same punishment.
maximum penalty of penal servitude (2) 6 Cox, C. C. 178.
128 KING'S BENCH DIVISION. [1910]

1910 May 2. The judgment of the COURT (Lord Alverstone C.J.,

BEX Bray and Pickford JJ.) was delivered by
WHITE BRAY J. In this case the appellant was indicted for the
murder of his mother and was convicted of an attempt to
murder her and sentenced to penal servitude for life. H e
appeals from this conviction on several grounds, which we will
deal with one by one. First it is said that there was no reason­
able evidence on which he could be convicted, or, as it is put in
s. 4 of the Criminal Appeal Act, that the verdict cannot be
supported having regard to the evidence.
The evidence put shortly was this. On January 9 last the
mother was found dead in a sitting posture on a sofa in a
sitting-room in her house. There was a round table standing
two feet from the sofa, on the further side of which was a wine
glass three parts filled with a liquid made up of a drink called
nectar and, as was afterwards shewn, containing two grains of
cyanide of potassium. There were also on the table a nectar bottle,
two lumps of sugar, and a spoon. There was no evidence to shew
that she had taken any of this liquid, and the result of the post
mortem examination and of the analysis of the contents of the
stomach and of the contents of the wine glass was to shew that
she had not died from poisoning by cyanide of potassium, but
that death was most probably caused by syncope or heart failure,
due to fright or some other external cause, and further that the
quantity of cyanide of potassium in the wine glass was, even if
she had taken the whole, insufficient to cause her death. The
appellant was proved to have bought cyanide of potassium on
December 22 previous. He stated in his evidence that he
bought it for case-hardening a chisel and that he had placed it in
a cupboard in the room where the mother was found dead and
that he thought it possible she might have taken it from there.
The prisoner did not live in this house. No traces of any of
this poison were found after her death either in the cupboard
or in the house, nor of the newspaper in which the appellant
said he had wrapped it. There was a good deal of evidence
shewing that the appellant had a motive for killing his mother
—namely, to obtain her money, she having made a will in his
favour—and also shewing that the appellant had made several
2 K. B. KING'S BENCH DIVISION. 129

statements previous to January 9 to the effect that he expected 1910

his mother's death, although in fact her state of health was not "R^C
such as to shew that she was in any danger. WHIM
In our opinion the evidence was sufficient to warrant the jury
in drawing the inference that the appellant had put the cyanide
of potassium in the wine glass. It was strongly urged that even
if this was so the smallness of the dose shewed that he could
not have had the intention to murder her; but there was evi­
dence that on some day between Christmas Day and the New
Year the prisoner had produced to a witness, named Carden,
from his pocket a small substance about the size of a marble,
which appeared to him to resemble sugar candy, and stated that
" This stuff is a deadly poison ; a small quantity about the size of
a pin's knob put into a little water would sober you " (i.e., the
witness) "if you were drunk, instantly." There is no doubt he
was referring to the cyanide of potassium which he had bought a
few days previously. He therefore perfectly well knew the
deadly character of this poison and supposed that a very small
quantity would produce an instant effect. Upon consideration
of all the evidence, including the denial of the prisoner that he
had put anything into the wine glass at all, we are of opinion
that there was sufficient evidence to warrant the jury also in
coming to the conclusion that the appellant put the cyanide in
the glass with intent to murder his mother.
The next point made was that if he put it there with that
intent there was no attempt at murder; that the jury must have
acted upon a suggestion of the learned judge in his summing up
that this was one, the first or some later, of a series of doses
which he intended to administer and so cause her death by
slow poisoning; and that if they did act on that suggestion there
was no attempt at murder, because the act of which he was
guilty, namely, the putting the poison in the wine glass, was a
completed act and could not be and was not intended by the
appellant to have the effect of killing her at once. It could not
kill unless it were followed by other acts which he might never
have done. There seems no doubt that the learned judge in
effect did tell the jury that if this was a case of slow poisoning
the appellant would be guilty of the attempt to murder. We are
YOL. II. 1910. K 2
130 KING'S BENCH DIVISION. [1910]
1910 of opinion that this direction was right, and that the completion
^ or attempted completion of one of a series of acts intended by a
*■ man to result in killing is an attempt to murder even although
this completed act would not, unless followed by the other acts,
result in killing. It might be the beginning of the attempt, but
would none the less be an attempt. While saying this we must
say also that we do not think it likely the jury acted on this
suggestion, because there was nothing to shew that the adminis­
tration of small doses of cyanide of potassium would have a
cumulative effect; we think it much more likely, having regard
to the statement made by the prisoner to the witness Carden,
that the appellant supposed he had put sufficient poison in the
glass to kill her. This, of course, would be an attempt to
murder.
We now come to the most difficult point, which was this—that
under s. 9 of 14 & 15 Vict. c. 100, if the appellant were found
guilty of attempting to murder, it would be a conviction of the
common law offence of attempting to murder, and not of any of
the special statutory offences under ss. 11—15 of 24 & 25 Vict.
c. 100. If this point were a good one, the punishment would be
only two years' imprisonment instead of penal servitude for life,
which could be given in case of a conviction under any of the
sections 11—15 of the Act of 24 & 25 Vict. c. 100. The argu­
ment on the part of the appellant was this: That ss. 11—15 of
24 & 25 Vict. c. 100 dealt with special offences, namely, ss. 11—
13, doing certain acts with intent to murder, s. 14, attempting to
do such acts with intent to murder, and s. 15, doing other acts not
mentioned in the previous sections with the like intent; that
these were made special statutory offences distinct from the
common law offence of attempting to murder; and that the
attempt referred to in s. 9 of 14 & 15 Vict. c. 100 was the
common law offence and not one of these special statutory
offences. In support of this it was said that at the time of the
passing of 14 & 15 Vict. c. 100, though the statutory offences
comprised in ss. 11—14 of 24 & 25 Vict. c. 100 existed under
earlier Acts, now repealed, they were not known as attempts to
murder; they did not comprise all attempts to murder, there
being no enactment haviDg the effect of s. 15, and the only
2K.B. KING'S BENCH DIVISION. 131
offence known to the law as attempt to murder was the common 1910
law offence, and that must have been the offence contemplated BEX
by that Act. Further, it was argued, in proceedings under W J; TE
ss. 11—15 of 24 & 25 Vict. c. 100 the indictment must state
the particular offence under the particular section; there could
not be one indictment charging the different offences under each
of the sections alternatively; and that the result of holding that
under an indictment for murder a man could be convicted of one
of these special statutory offences would enable the prosecution
to include in one indictment a number of special statutory
offences, and that if that had been intended it would have been
enacted by 24 & 25 Vict. c. 100, " Whosoever shall by any
means attempt to murder shall be guilty of felony," &c. Finally
it was argued that there was a difference between doing an act
with intent to murder and attempting to murder. In support of
all these points great reliance was placed on Reg. v. Connell. (1)
The argument on the part of the prosecution was that the
Act 24 & 25 Vict. c. 100 for the first time dealt compre­
hensively with all attempts to murder and made them all
felonies and all punishable with the same maximum punish­
ment, namely, penal servitude for life, so that after the passing
of 24 & 25 Vict. c. 100, on a conviction for attempt to murder
under 14 & 15 Vict. c. 100, the conviction was a conviction
under 24 & 25 Vict. c. 100 and punishable with penal servitude
for life; that although this might have the effect of including in
one indictment several special statutory offences, that was the
necessary consequence and effect of the Act 24 & 25 Vict. c. 100,
and if it were not so, there must in every case where there was a
failure to prove the charge of murder be a fresh indictment and
a fresh trial on exactly the same evidence which would lead to
the same result, and that this was the very mischief which the
Act of 14 & 15 Vict. c. 100 was intended to remedy, and that
no hardship on the prisoner would result; no new evidence
would be introduced, and he would be convicted of the attempt
on the same evidence which was relied on to prove the complete
offence. As to the last point, it was said that there could not be
an attempt to murder unless there was an intent to murder, so
(1) 6 Cox, C. C. 178.
12 2
132 KING'S BENCH DIVISION. [1910]

1910 that if a prisoner were convicted by the jury of an attempt to

i^ murder he must necessarily have been convicted of an offence
w t n m one
WHITE. i ° * t n e sections 11—15 of 24 & 25 Vict. c. 100.
After full consideration, and having had the advantage of
hearing a most able argument from Mr. Maddocks, we have come
to the conclusion that the reasoning of the prosecution is sound
and must prevail. We will deal first with Reg. v. Connell.(l)
The ground of that decision seems to be that the record would
merely shew a conviction for an attempt to murder, and it would
be consistent with the record that the attempt had been by some
means other than those mentioned in the special statutory
offences, which at that time (1858) did not include an offence
under s. 15. It might be, therefore, that the prisoner was
convicted of an offence which was only punishable as a common
law misdemeanour, and there would be no authority for the
statutory punishment; it would be consistent with the record
that the man should have been sentenced to penal servitude
for life when he had only been guilty of a common law
misdemeanour. We think Reg. v. Connell(l) may be distin­
guishable on these grounds; but the passing of 24 & 25 Vict.
c. 100 removed this difficulty. That Act was intended as a code
for all attempts to murder. This group of sections 11—15
is headed with the words "Attempts to Murder," and these
words fortify the conclusion at which we have arrived. After
the passing of that Act all attempts at murder necessarily fell
within one of these five sections. If that Act had provided in so
many words that all attempts to murder should be punishable
with penal servitude for life, the effect of such an enactment on
s. 9 of 14 & 15 Vict. c. 100 must have been that if the
prisoner were convicted of the attempt to murder penal servitude
for life could be awarded, and ss. 11—15 of 24 & 25 Vict. c. 100
substantially were such an enactment. It is not a sound argu­
ment that if that had been intended there would have been that
one section, and that alone, because we know that in Acts which
are intended to consolidate as well as to amend the law it is the
practice to re-enact sections of the repealed Acts, and then to fill
up any gap, rather than frame new sections in new language.
(1) 6 Cox, C. C. 178.
2 K. B. KING'S BENCH DIVISION. 133

By the time the consolidation Act cornea the language of the old 1910
sections has often been judicially interpreted, and it is desirable ^^
to use the same language. We think that no such inference as ,„ «•
0
° WHITE.
was suggested by Mr. Maddocks can be drawn from the absence
of the simple provision that all attempts to murder should be
punishable with penal servitude for life. As to the difference
between acts which are attempts to murder and acts which are
done with intent to murder, we feel some difficulty in accepting
what Kennedy J. says in Rex v. Linneker (1); but, however that
may be, it is sufficient to eay, as we have already said, that all
the offences in ss. 11—15 are treated as attempts to murder, and
there cannot be an act done with intent to murder without its
being an attempt to murder, and a prisoner cannot be convicted
under s. 9 of 14 & 15 Vict. c. 100 unless, as here, the jury have
found him guilty of an attempt to murder. For these reasons
we think the appeal fails and must be dismissed.

Appeal dismissed.

Solicitors for appellant: Maddocks, Ogden, & Co., Coventry.

Solicitor for the Crown : Director of Public Prosecutions.
(1) [1906] 2 K. B. at p. 103.
J. F. C.