Rex v Jolly and Others Appellants

• Jurisdiction: South Africa
• Citation: 1923 AD 176

Rex Respondent v Jolly and Others Appellants
1923 AD 176

1923 AD p176

Citation	1923 AD 176
Court	Appellate Division, Bloemfontein - Cape Town
Judge	Innes CJ, Solomon JA, De Villiers JA, Juta JA and Kotzé JA
Heard	November 20, 1922
Judgment	December 19, 1922

Flynote : Sleutelwoorde

Criminal law — Assault with intent to commit murder — Trainwrecking — Injurious act — Inference of intent — Penalty where offence punishable under common law and by Statute.

Headnote : Kopnota

The inference of intent to be drawn from the injurious nature of an act is not a conclusive inference but evidence is admissible to rebut that inference.

Appellants were convicted by a special criminal Court constituted under Act 31 of 1917 of assault with intent to murder upon an indictment which charged them with having unlawfully and maliciously damaged the railway line and thereby derailed and wrecked a train upon which certain passengers were travelling.

Upon certain questions of law reserved,

Held, that the facts alleged in the indictment constituted the crime charged and that there was evidence from which the Trial Court was entitled to infer the existence of an intention to commit murder.

The imposition upon a conviction under the common law of an offence based upon the doing of an act endangering the lives of persons travelling on a railway of a penalty in excess of the maximum penalty prescribed for a similar statutory offence under the Railways Regulation Act, 1916, commented on.

Case Information

Appeal on certain questions of law reserved by a Special Court established under Act 31 of 1917 for the trial of certain accused persons.

1923 AD p177

The facts are stated in the judgments of INNES, C.J., and KOTZÉ, J.A.

Accused Jolly in person.

G van Pittius, for the other accused: I can find no definition of assault with intent.

Assaults must involve indignity. Bodily movement and alarm are essential to the crime of assault: see R v Bates (1903 T.S. 513); Kenny's Oltlines of Criminal Law (1902 ed., pp. 152 and 153); and R v Jim (18 E.D.C. 64).

In English law the breaking up of a railway line is made a crime by Statute.

There was no intention to murder. See de Villiers' Roman and Roman-Dutch Law of Injuries (p. 27); and Kimball and Others v The State (13 American Crim. Reports, 131).

C. W. de Villiers, K.C., Attorney-General, Transvaal, for the Assault is an injuria. See de Villiers' Roman and Roman-Dutch Law of Injuries (p. 17); R v Umfaan (1908 T.S. 62).

For a definition of assault, see Stephen's Digest of the Criminal Law (art. 262). Bodily movement is not essential. See note to art. 262.

There is direct application of force. See R v Martin, (8 Q.B.D. 54).

The onus was on the accused to prove that there was no intention to kill as the natural consequence of derailing a train is the death of one or more of the passengers.

I submit that the Court did not accept Jolly's evidence as to intention. I admit that if it did, the Court should not have convicted him of the crime charged.

Cur adv vult.

Postea (December 19th).

Judgment

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

1923 AD p178

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

1923 AD p179

Innes, C.J.

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

1923 AD p180

Innes, C.J.

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...