CENTRAL CRIMINAL COURT. FEBRUARY SESSION, 1849. February 3. (Before Mr. JUSTICE CRESSWELL.) REG. v. WALTHAM. (a) Wounding, with intent. A rupture of the lining membrane of the urethra followed by a small flow of blood, such rupture being caused by a kick in the private parts of the prosecutor, is a wounding within the 7 Will. 4 § 1 Vict. c. 85, s. 4. THE prisoner was indicted for wounding the prosecutor, with intent to do him grievous bodily harm. It appeared from the evidence that the prosecutor (who was a policeman), while endeavouring to separate the prisoner and a man with whom he was fighting, received from the former a violent kick in his private parts. From the testimony of the surgeon, it appeared that the external skin was unbroken, but that the lining membrane of the uretha was ruptured, which caused a small flow of blood, mingled with urine, for two days. That membrane is precisely the same in character as that which lines the cheek and the external and internal skin of the lip. Parry (for the prisoner) objected that this was not a wounding within the statute, and cited Reg. v. Jones, Central Criminal Court, January, 1848, ante, 441; that case was very similar to the present; there is no external wound. CRESSWELL, J.-If the cases were similar I should abide by the ruling of Mr. J. PATTESON; but there is a great difference between them. I think this is a wounding within the statute. (a) Reported by B. C. ROBINSON, Esq., Barrister-at-Law. CENTRAL CRIMINAL COURT. NOVEMBER SESSION, 1848. November 1. REG. v. SMITH AND OTHERS. (a) 11 & 12 Will. 3, c. 7-Mutiny-Mariner within Merchant Seaman's Act, 7 & 8 Vict. c. 112, s. 2. A seaman engaged by the master of a vessel, and taken to sea without any such written agreement having been entered into between them as is rendered necessary by the 7 & 8 Vict. c. 112, s. 2, is not a seaman or mariner within the 11 & 12 Will. 3, c. 7, s. 9, and therefore is not liable under that section for making a revolt, by deserting his vessel in port, and inducing the rest of the crew to do the same. Semble, a merchant vessel is a ship within the meaning of that section. THE :— HE prisoners were arraigned upon the following indictment: Indictment. "Central Criminal Court, to wit:-The jurors for our lady the Queen, upon their oath present that James Jennings Smith, late of London, mariner; Alexander Reid, late of the same place, mariner; John James, late, &c.; David Gillies, &c.; James Payne, &c.; John Kelly, &c.; Robert Barclay, &c.; Edward Sorrell, &c.; and John McDonald, late of the same place, mariner, on the 16th day of September, A.D. 1848, were mariners, and First count. each of them was a mariner in and on board of and belonging to a certain ship called the Lion, then lying and being in a certain place upon the high seas called the port of Harlingen, in Friesland, in Holland, in parts beyond the seas within the jurisdiction of the Admiralty of England, and within the jurisdiction of the Central Criminal Court, whereof one Henry William Neville, then being a subject of our lady the Queen, then and there was master; and the jurors aforesaid, upon their oath aforesaid, do further present that the said J. J. Smith (and the others before mentioned), being such mariners, and each of them being such mariner as aforesaid, on the day aforesaid, in the year aforesaid, with force and arms upon the high seas aforesaid, within the jurisdiction of the Admiralty aforesaid, and within the jurisdiction of the Central Criminal Court, piratically and feloniously did endeavour to make a revolt in the said ship, so then and there lying and being as aforesaid, the said H. W. Neville, the master thereof, then and there being in and on board of the said ship, against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity. (a) Reported by B. C. ROBINSON, Esq., Barrister-at-Law. REG. v. SMITH AND Mutiny- Second count.-And the jurors aforesaid, upon their oath aforesaid, do further present that the said J. J. Smith (and the others before mentioned), on the day aforesaid, in the year aforesaid, were mariners, and each of them was a mariner in and on board of a certain ship called the Lion, then lying and being in a certain Seamen's Act. place upon the high seas called the port of Harlingen, in Friesland, in Holland, in parts beyond the seas within the jurisdiction of the Admiralty of England, and within the jurisdiction of the Central Criminal Court, whereof the said H. W. Neville, then being a subject of our lady the Queen, then and there was master; and the jurors aforesaid, upon their oath aforesaid, do further present that Second count. the said J. Jennings Smith, &c., being such mariners as last aforesaid, on the day aforesaid, in the year aforesaid, with force and arms upon the high seas aforesaid, within the jurisdiction of the Admiralty aforesaid, and within the jurisdiction of the Central Criminal Court, piratically and feloniously did make a revolt in the said last-mentioned ship so then and there lying and being as last aforesaid, the said H. W. Neville, the master thereof, then and there being in and on board of the said last-mentioned ship, against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity. Stat. 11 & 12 Will. 3, c. 7, s. 9. The indictment was framed on the 9th section of the 11 & 12 Will. 3, c. 7, which enacts that "if any commander or master of any ship, or any seaman or mariner, shall, in any place where the admiral had jurisdiction, betray his trust, and turn pirate, enemy, or rebel, or if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defence of his ship and goods committed to his trust, or shall confine his master, or make or endeavour to make a revolt in the ship, he shall be adjudged, deemed, and taken to be a pirate, felon, and robber," &c. It appeared in evidence that the prosecutor was the master of a steam-ship trading between London and Holland. The prisoners formed part of the crew,-Smith being chief engineer; Reid, second engineer, and the rest firemen and coal trimmers. Their register tickets were deposited with the captain, but no agreement in writing had been entered into with them previously to their sailing from London on this particular voyage. On the 14th of September they arrived at Harlingen, and took in a general cargo, and were to leave on the following morning. The next day the fires were all lighted, the steam was up, and the vessel was about to start, when, in consequence of some dispute arising between the prisoner Smith and the captain, the former declared he would leave the ship, and with much violence of gesture and language, he called out to the other prisoners to rake the fires out and come on shore. This they at length did, and the prisoners left, having first endeavoured, but without success, to persuade another man to join them. The captain, having no crew to work the vessel, was obliged to hire another steamer, and leave his own in port. Clarkson (for the prosecution), contended that upon these facts REG. V. OTHERS. Mutiny- the charge was made out (R. v. Hastings, 1 Moo. C. C. 32). It was clear that the crew were making a revolt when they repu- SMITH AND diated the authority of the captain, refused to work, and left the vessel against orders. Then, was this vessel, though a merchant vessel, a ship within the 9th section of 11 & 12 Will. 3, c. 7? It was clear that the word "ship" in that section was not confined to Seaman's Act. a "King's ship," for the section commences by speaking of the commander of "any ship;" the terms are therefore general enough to include all. [The RECORDER.-Yes, that appears to be the case.] The next question is this, are these men mariners? I submit that all men embarking in a vessel, having a duty to perform in her as contradistinguished from passengers, are what the act means by mariners, and that, although the duty of these men was to attend to the engines and fires, and not to the rigging, they are as completely within that term as sailors who navigate an ordinary sailing vessel. Then comes a question on which the defence appears to rest; will the absence of a written agreement divest these men of a character which they have voluntarily assumed? The 7 & 8 Vict. c. 112, s. 2, enacts "that it shall not be lawful for any master of any ship, of whatsoever tonnage or description, belonging to any subject of Her Majesty, proceeding to parts beyond the seas, to carry to sea any seaman, as one of his crew or complement (apprentices excepted), unless the master of such ship shall have first made and entered Clarkson for into an agreement in writing with such seaman, specifying what the prosecution. wages such seaman is to be paid, the quantity of provisions he is to receive, the capacity in which he is to act or serve, and the nature of the voyage in which the ship is to be employed, so that such seaman may have some means of judging of the period for which he is likely to be engaged; and that such agreement shall be properly dated, and shall be signed by the master in the first instance, and by the seamen respectively at the port or place where they shall be shipped; and that the signature of each of the parties thereto shall be duly attested by one witness at the least, and that the master shall cause the agreement to be read over and explained to every such seaman in the presence of such witness, before such seaman shall execute the same," &c. I contend that the statute was never intended to apply to such a case as this, where the seamen leave port on one day, and reach their destination the next. The men are engaged for a lengthened period, and the greatest inconvenience would arise if it were held necessary to have a fresh agreement every few days. [The RECORDER.-I see no exception in the act with regard to short voyages, and shall certainly rule that such a case as this is within the section you have quoted.] But, admitting that to be so, the prisoners are still liable upon this indictment. The acts of Parliament are entirely distinct. It may be that the captain is liable to a penalty for not entering into the agreement, but that will not divest the seamen of all culpability if they do that which amounts to a revolt. The men enter the service. If the act was intended for their protection, they waive their REG. v. SMITH AND OTHERS. Mutiny- Seaman's Act. right by the course which they pursue; they may have purposely abstained from insisting on any agreement in order to carry out an unlawful scheme that they have previously projected. They cannot take advantage of their own negligence. They cannot commit that which the law declares to be a crime, and then escape from the consequences because some formalities connected with their engagement have not been complied with. The captain may have been guilty of a breach of duty; but the question here is not between these men and the captain, but between them and the public. They contract-though not in strict form-to do a certain duty, and instead of performing it, they mutiny against their commander. It is true in this case there was little risk to life involved in the course they pursued, but if they may revolt with impunity here, they might do so at sea, under circumstances that might jeopardize the lives of a number of individuals. The act 11 & 12 Will. 3, c. 7, includes mariners or seamen; now these men are not the less mariners or seamen because certain conditions mentioned in another act have not been performed. The RECORDER.-I think the statute under which these men Clarkson, Ballantine, and Sleigh, for the prosecution. |