Rex v Jolly and Others Appellants

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, De Villiers JA, Juta JA and Kotzé JA
• Judgment Date: 19 December 1922
• Hearing Date: 20 November 1922
• Court: Appellate Division

Innes, C.J.:

The accused were convicted by a Special Criminal Court constituted under Act 31 of 1917 of assault with intent to murder. They were charged with having unlawfully and maliciously damaged the line of railway between Natalspruit and Union Junction, and with having thereby derailed and wrecked a train upon which certain passengers were travelling. In that was the indictment alleged they had assaulted those passengers with intent to murder them. The evidence - for the defence, as well as

Innes, C.J.

for the Crown - showed that on the 8th March last certain strike, leaders requested the accused Jolly to obstruct the Natal line. This, after some demur, he undertook to do, and he called for volunteers from the Alberton commando. As a result, about a dozen men, including all the accused, were selected. They proceeded about 10 o'clock in the evening of the 8th March to a spot near the junction of the two systems; but for some reason it was not considered advisable to operate upon the Natal line and, under the direction of one of their number named Diedericks, they turned their attention to the line from the Cape. Diedericks was accepted as King's evidence, and no proceedings were taken against him. But he undoubtedly was the guiding spirit of the enterprise. At the spot selected the metals ran between two four feet banks on a rising grade of 1 in 100; here, under Diederick's instructions, certain fishplates were removed, and the line tampered with in a manner calculated to ensure the derailment and stoppage of the next train which came along. The actual work was done by Diedericks, Jolly, Price and others, while certain of the accused were stationed in the vicinity as pickets to give warning of any possible interruption. About 7 o'clock in the morning of the 9th March, a passenger train from the Cape, consisting of eight saloons, a dining car and two vans, reached the spot, running at a speed of 20 miles an hour. In consequence of the obstruction which the accused had caused, the engine and tender and the two leading coaches were completely derailed, while the third coach partly left the metals. The banks on either side prevented the, saloons from capsizing. None of the passengers - some 200 in number - were hurt; the engine-driver had a slight burn on his hand and was bruised about the body, but no further injury was caused to life or limb. After conviction, the following questions, of law were reserved for our decision: (1) Whether the facts alleged in the indictment constitute the crime of assault with intent to commit murder. (2) Whether there is sufficient evidence on the record of an intention to murder.

The point involved in the first question was originally taken by way of exception to the indictment, and was argued on the assumption that the train had been derailed owing to a tampering with the line by the accused some hours before. The exception was overruled, and the reasons given by the learned JUDGE-PRESIDENT are decisive of the question before us. Assault is a

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term taken from the English law. As distinguished from "battery," it means in that law any movement which attempts or threatens the unlawful application of force to another; such an application when effected constitutes a "battery" (see Kenny, 4th ed., p. 151). But, as pointed out by the JUDGE-PRESIDENT it is commonly used to denote both assault and battery. According to Roman-Dutch law the wrongful application of force to another was a species of real injury (injuria realis); and a movement which threatened such application was also an injuria for the redress of which a utilis actio lay (see Dig. 47.10.15.1; Voet, 47.10.7). So that the same idea prevail in both systems. The lawyers of Holland, however, seem not to have used any special word to distinguish this particular offence from other injuriae. And under these circumstances the English term has been adopted in our practice; and assault or aanranding is a word which has been in common use in South African criminal procedure for many years. Being an English word for which there is no convenient Dutch equivalent, it may be assumed to be employed in its English sense, which, as already pointed out, is not in conflict with the principles of our law. The definition of assault in South African practice as given by Gardiner and Lansdown (vol. 2, p. 1020) is as follows: "The act of intentionally and unlawfully applying force to the person of another, directly or indirectly, or attempting or threatening by any act to apply that force, if the person making the threat causes the other to believe that he has the ability to effect his purpose." The definition is substantially taken from the Transkeian Penal Code; it commended itself to the Trial Court, and would appear to be satisfactory for all practical purposes. It recognises that the application of force may be indirect as well as direct - a conclusion which is logically unassailable, for it is evident that a person may cause force to be applied to the body of another without himself touching that other. Such an application of force would be properly described as indirect. A may cause B to fall from his bicycle, either by pushing him off or by overturning the bicycle; in the one case he applies force to B's body directly, in the other indirectly; but in both cases the result, actual and legal, is the same. In each instance A has assaulted B. Turning to the indictment, it alleges the derailment of a passenger train caused by damage unlawfully and maliciously done to line by the accused. The result must inevitably have been a

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considerable physical shock to the passengers, due to the indiscreet application of force. The fact that it was only effected several hours after the completion of the obstruction can make no difference. The accused are in the same legal position as if they had thrust the metals asunder as the engine touched them and wrecked the train there and then. As regards the first question, therefore, it is clear that the allegations in the indictment are sufficient to constitute the crime of assault, and if an intention to murder was present, to constitute the crime of assault with that specific intent.

The second, question is somewhat widely stated. Taken literally, an answer to it would involve a pronouncement upon the correct ness of the verdict. But no appeal in that sense lies to this Division from the finding of the Special Court. That Court combines the functions of both judge and jury, and the due reservation of the point of law embodied in the second question should have taken the form of an enquiry whether there was or was not any legal evidence on which the Court was entitled to convict: See Rex v Lamli. AD 85). The question is not whether we consider the evidence of an intention to murder sufficient. That is a matter on which no opinion need be expressed. The point is whether there was any evidence from which the Trial Court was entitled to infer the existence of such an intention. That is what the question was doubtless intended to express, and it must be considered as if it had been formulated in that way.

Dr van Pittius, who appeared for all the accused except Jolly, contended that the onus of establishing the intent alleged rested upon the Crown, that there was no direct evidence of such intent - on the contrary, all the accused denied it - and that there were no circumstances from which an intention to murder could be properly inferred. The fact that the spot chosen for the operations was upon a rising gradient with banks on either side of the line, went far, he urged, to show that there was no desire to injure either the men on the engine or the passengers in the saloons. Jolly, who appeared in person, argued the matter on the same lines, and his contention that there was no intent to kill was in some degree strengthened by the fact that the Special Court had placed on record its appreciation of the honesty and candour of his evidence at the trial. Now, the legal position as to onus was undoubtedly as contended for. No presumption of an intent to murder, such as would have arisen had death ensued, could be

Innes, C.J.

relied upon in...