Bradley v. The Queen

Bradley v. The Queen
Collection
Supreme Court Judgments
Date
1956-06-27
Report
[1956] SCR 723
Judges
Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Nolan, Henry Grattan
On appeal from
Manitoba
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Bradley v. The Queen, [1956] S.C.R. 723
Date: 1956-06-27
Robert Alfred Bradley Appellant;
and
Her Majesty The Queen Respondent.
1956: May 29; 1956: June 27.
Present: Kerwin C.J. and Taschereau, Rand, Locke, Cartwright, Fauteux and Nolan JJ.
ON APPEAL FROM THE COURT OP APPEAL FOR MANITOBA
Criminal law—Murder—Plea of self-defence and drunkenness—Fist fight— Criminal Code, s. 201(a) (i) and (ii).
The appellant was convicted of murder. His main defences bad been self-defence, drunkenness and lack of intention to kill.
The evidence was that the appellant and the victim had, in a deserted lane at about 2 a.m. on a very cold night, engaged in a drunken fist fight; that the victim fell to the ground and was kicked by the appellant; that while the victim was lying bleeding and unconscious, in below zero weather, the appellant removed the victim’s coat, placed a leather belt around his head, running it through the mouth and knotting it tightly behind the left ear, and then abandoned him. The autopsy revealed numerous cuts on the head and a depressed fracture of the skull. The lungs contained an abnormal amount of blood.
The conviction was affirmed by the Court of Appeal, without written reasons.
Held (Rand, Cartwright and Nolan JJ. dissenting), the appeal should be dismissed.
Per Kerwin C.J. and Taschereau and Fauteux JJ.: On the uncontradicted evidence of medical and law enforcement officials and the admittedly free and voluntary statements made by the appellant, the conclusion is irresistible that, failing any defence that could arise from the evidence, the appellant’s conduct throughout the entire transaction could only manifest an intention either to cause the death of the victim or to cause the victim bodily injury known to him to be likely to cause or accelerate death and being reckless whether death ensued or not. It is impossible to say with any degree of certainty to which one of the various injuries death could ultimately be attributed. Whether the fracture of the skull was caused by the appellant, intentionally or accidentally, what he did, once his victim had become unconscious, on the medical evidence, accelerated death and there is no place for any speculation as to what his intentions then were if they are to be measured by his actions. Therefore, subject to the consideration of possible defences and assuming particularly that the appellant was sane and sober, as the law presumes, there could be no doubt that what he then did is only reasonably consistent with either an intention to kill or to cause such bodily injury known to him to be likely, in the circumstances, to cause or accelerate death, being reckless whether death ensued or not. Subject to the consideration of possible defences, whether such a killing by acceleration amounts to murder or manslaughter depends whether, on the evidence, the case is one within s. 201(a) (i) or (ii) of the Code.
The trial judge charged the jury as to insanity, provocation, self-defence and drunkenness. These directions are unimpeached by the appellant. Obviously, the jury reached the view that none of the defences was made out. Having particularly failed to find that the appellant was drunk to the extent required to support a defence of drunkenness, which was the main defence here, there was no other verdict possible but the one rendered. There was no substantial wrong or miscarriage of justice.
Per Locke J.: All the acts of the appellant must be considered together and the matter cannot be limited to the blows which presumably felled the victim.
There is no substance to the objection that the trial judge made a finding in law that the appellant’s participation in the fight was an unlawful act and a crime when the facts were in dispute. The facts were not in dispute and assaulting another person is a criminal offence subject to the exceptions explained in the charge.
Reading the charge as a whole, there was no misdirection for the trial judge to say that the appellant was presumed to intend all the consequences which might flow from the fight, even though he may not have known that the victim received a fractured skull, and that he was thus presumed to be guilty of murder, subject to possible defences. The necessity for proof of the intent required by s. 201(a) of the Code was impressed on the jury.
The contention that the trial judge should have instructed the jury that if the victim fell during the fight and fractured his skull on some object it could amount to no more than manslaughter, cannot be entertained. If the appellant struck the victim with his fists intending to kill him or cause bodily harm that he knew was likely to cause death and being reckless whether death ensued or not, it would be murder and not manslaughter.
The reading by the trial judge of s. 196 of the Code, coupled with the reference to the condition in which the victim was left and the instructions in the charge as a whole, was sufficient to dispose of the ground that the trial judge failed to tell the jury under what circumstances it would have been manslaughter under that section. The objection that the trial judge failed to instruct the jury, that if they found that the appellant accelerated the death, under what circumstances it would amount to manslaughter, ignores the instructions as to whether the appellant had caused the death and as to his intent in assaulting and leaving the victim gagged and unconscious in the snow.
The jury, finding that the appellant was capable of forming the intent necessary to constitute the offence of murder, has by its verdict found that he had formed that intent. No other finding was open to them upon the evidence. No substantial wrong or miscarriage of justice occurred.
Per Rand J. (dissenting): The brain contusion was the vital physical fact and therefore the question of actual intent was of the first importance. The charge confused the question of causing a homicide with that of attributing to the appellant an intent or state of mind. If the appellant knew nothing of the skull fracture or existing conditions that coupled with a knockdown could cause it, it is impossible to see how anything flowing from it could be considered to be within any legal presumption of intention related to consequences, natural or unnatural. It was fatal to the charge to omit the vital link of knowledge actual or imputed that could produce such a natural consequence, as well as the intent to bring such an injury about.
As to the supplementary cause of tying the belt and abandoning the victim, which it was contended accelerated the death, the general verdict makes it impossible to say whether the jury proceeded upon the one cause or the other; and any finding by a court of appeal that the jury must have found guilt on the one or the other might be based on the one that the jury rejected. Furthermore, it cannot be seriously contested that the jury could have found in favour of the appellant that this supplementary conduct had not been carried out with ‘the intent of s. 259 of the old Code and that the passion of the fight had not cooled. Nothing of this was contained in the charge and no Court can usurp the function of the jury and make such a finding under s. 1014(2) of the old Code.
Per Cartwright J. (dissenting): It was misdirection, fatal to the -conviction, to tell the jury not that they might but that they must find that the appellant had the intent required by s. 201(a) (i) or (ii) of the Code unless they found that he was through drunkenness incapable of forming the intent to cause death or to cause bodily injury that he knew was likely to cause death and was reckless whether death ensued or not. It was for the jury, giving due weight to the rebuttable presumption which imputes to a man an intention to produce those consequences which are the natural result of his acts, to decide as a fact whether the appellant had the guilty intent necessary to make him guilty of murder; and, in particular, it was for them to say whether the fracture of the skull was a natural consequence of any blow struck by the appellant.
n the circumstances of this case, it is impossible to say that a jury properly instructed and acting reasonably must necessarily have convicted the appellant of murder. It was open to them on the evidence to find a verdict of manslaughter. On the other hand, it is not possible to say that there was no evidence on which the jury might find a verdict of murder, and, therefore, there should be a new trial. Per Nolan J. (dissenting): It was a fatal defect in the charge of the trial judge to instruct the jury, as he did, that the appellant was presumed to have intended the consequences which flowed from the fight, even though he might not have known that the victim suffered a fractured skull, and that an intent, as required by s. 201(a) (i) or (ii) of the Code, must be attributed to him. It was for the jury to say whether the intent of s. 201 was to be attributed to the appellant so as to justify a verdict of murder; also to say whether the fracture of the skull was caused by a blow of the appellant or by the victim falling on a pile of scrap iron nearby.
It was for the jury to determine whether, on the facts, manslaughter or murder was the appropriate verdict and there is a doubt, which must be resolved in favour of the appellant, that the verdict would necessarily have been the same had no irregularity occurred.
APPEAL from the judgment of the Court of Appeal for Manitoba, affirming the conviction of the appellant for murder.
J. L. Crawford for the appellant.
A. S. Dewar for the respondent.
The judgment of Kerwin C.J. and Taschereau and Fauteux JJ. was delivered by
Fauteux J.:—This is an appeal from a unanimous judgment, delivered without written reasons by the Court of Appeal for Manitoba, affirming a verdict of murder rendered against the appellant. The grounds of law, upon which leave to appeal to this Court was granted, are all exclusively related to the address of the trial judge to the jury. These grounds and all the material facts leading to the conviction of the appellant, are set out in detail by other members of the Court and need not therefore be recited here.
On a consideration of the uncontradicted evidence of medical and law enforcement officials, who took charge of the case when the body of the victim was found lying in a lane on the morning of January 6, 1955, and of the admittedly free and voluntary statements made by the appellant, one is irresistibly forced to the conclusion that, failing any defence susceptible to flow from the evidence, the conduct of the appellant throughout the entire transaction can only manifest an intention either to cause the death of the person he killed or to cause to that person bodily injury known to him to be likely to cause or accelerate death and being reckless whether death ensued or not. In the course of the fight in which both were engaged in the lane, around two o’clock of the night, the appellant gave a blow with his fist to the deceased and the latter fell to the ground; the appellant then kicked him; and knowing that the victim was lying unconscious, in that deserted lane, at that hour of a very cold night—it being four degrees below zero—the appellant removed the coat of his victim, placed a leather belt around his head, running it through his mouth and knotting it tightly behind his left ear; and he then abandoned his Unconscious victim, who was profusely bleeding, with part of his body exposed.
No one suggests that without these and all the other injuries inflicted on him by the appellant, Flatfoot would have died that day from any other cause; indeed, the case was pleaded throughout on the basis that the appellant himself caused the death of the victim. It is impossible to say with any degree of certitude to which one of the various injuries then suffered by the deceased death could ultimately be attributed. It is clear, however, that even if the fracture of the skull was, as suggested by counsel for the appellant, the result of the fall to the frozen ground or on some iron junk and that this fracture was the primary cause of death, the victim did not die immediately. He was still alive when the accused proceeded thereafter to tie the belt around his head and through his mouth, to remove his coat and to abandon him in this critical condition of unconsciousness and haemorrhage, in the circumstances above described. In the opinion of Doctor Ross, “death was not instantaneous but more prolonged” and exposure was a contributing cause. The large quantity of blood found, in the morning, where the head of the body was resting and which, while the appellant was kneeling close to the victim, permeated parts of his clothes, does not suggest that the circulatory system had immediately ceased to function. Whether the fracture of the skull was caused by the appellant, intentionally or accidentally, what he actually did, once his victim had become unconscious, on the medical evidence accelerated death and there is no place for any speculation as to what his intentions then were if they are to be measured by his actions. This was not an abandonment devoid of significance nor the case of a hasty flight from the scene of the crime. Subject to the consideration of possible defences which might arise from the evidence and assuming, particularly, that the appellant was sane and sober, as he is presumed under the law to have been unless the contrary is shown, there can be no doubt that what he then did is only reasonably consistent with either an intention to kill or to cause to the person he killed such bodily injury known to him to be likely, in the circumstances, to cause or accelerate death, being reckless whether death ensued or not. In Archbold’s Criminal Pleading, Evidence & Practice, 32nd ed., it is stated at page 893 that:—
If a man is suffering from a disease, which in all likelihood would terminate his life in a short time, and another gives him a wound or hurt which hastens his death, this is such a killing as constitutes murder (1 Hale 427), or at the least manslaughter.
In the case of Edmunds 1, the Lord Chief Justice, speaking for the English Court of Criminal Appeal, said at p. 258:—
It is clear that if the injuries accelerated the death, the question whether the deceased was in a weak state of health at the time they were inflicted is immaterial, and that the appellant would be guilty of murder.
Under s. 199 of the Criminal Code:—
Where a person causes bodily injury to a human being that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause.
The fact that such other cause would be, as in the present case, attributable to the same person who accelerates the death does not, in the eyes of the law, improve the position of the appellant.
Subject to the consideration of possible defences, whether such a killing by acceleration amounts to murder rather than manslaughter depends upon whether, on the evidence, the case is one within the provisions of section 201(a) (i) or (ii).
With respect to possible defences, the trial judge charged the jury as to insanity, provocation, self-defence and drunkenness. These directions are unimpeached by the appellant. It is the defence of drunkenness, however, which in this case, was the defence of substance and indeed, on the evidence, drunkenness was the crucial issue. While it may be said that, when dealing generally with the presumption that a man is presumed to intend the natural consequences of his act, certain statements of the charge could be objectionable, the same matter was dealt with again, as it had to be, when the specific instructions were given as to drunkenness and were then related to the provisions of section 201(a) (i) or (ii). In this regard, the following instructions may be quoted:—
If you decide that the accused caused the death of the deceased, you must next decide, Did he mean to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not? That is, in either case you must consider the accused’s capacity to form an intent, and in the second case, his ability to know that what he did was likely to cause death.
* * *
If you come to the conclusion that the accused was not insane at the time the offence was committed, the question of drunkenness is still a matter requiring careful consideration, because it affects the capacity to form an intent and to know the consequences of his act. This involves a careful consideration of all the evidence relating to drunkenness.
* * *
Then, if you decide he was drunk, you must decide if he was, firstly, so drunk as to be insane; secondly, drunk to a lesser degree, but so drunk as to be unable to form an intent about what he did or to appreciate the consequences of his act; and thirdly, drunk, but not so drank as to be unable to form such an intent. Upon any of these points if you: have a reasonable doubt, the accused must be given the benefit of that doubt.
Now if you come to the conclusion that the accused was not insane or so drunk as to be insane, then you must decide if he was so drunk as to be unable to form an intent to commit the crime with which he is charged. If on a full consideration of the evidence you conclude that he was in such a state of drunkenness as to be unable to form such an intent or if you have a reasonable doubt on the matter, then subject to the questions of self-defence and provocation, which counsel for the accused really left me to deal with and which I will have to deal with, you must find the accused not guilty of murder but guilty of manslaughter.
The judge then reviewed exhaustively all the evidence related to drunkenness and said:—
If you come to the conclusion that the accused’s condition of drunkenness did not render him incapable of forming the intent to do what he did, the intent to either cause the deceased’s death, or alternatively, the intent to cause bodily harm and the inability to know the likely consequences, he being reckless whether death ensued or not, then the accused is guilty of murder. If you come to the conclusion that he was incapable of forming that intent, then he is guilty of manslaughter, unless he did what he did lawfully in self-defence.
And at the end:—
I want to remind you again when the accused came before this Court he did so, as every accused does, with the presumption of innocence in ‘his favour, and the burden of proving the guilt of the accused is upon the Crown from the beginning to the end of the case. There is never any burden on the accused to prove his innocence. It is not until the evidence is all in that a verdict can possibly be found. If the evidence raises a reasonable doubt as to the guilt of the accused, he is entitled to the benefit of that doubt on every point that has to be decided.
From the verdict rendered, it is evident that the jury reached the view that none of the defences upon which they were instructed was made out. Having particularly failed to find that the appellant was drunk to the extent required by law to support a defence of drunkenness, there was, in my view, no other verdict possible but the one rendered by the jury. Whatever may be the merits of all the points of law raised, there was, in view of the evidence before the jury, no substantial wrong or miscarriage of justice. I agree with the conclusion reached by the Court of Appeal for Manitoba. The appeal should be dismissed.
Rand J. (dissenting):—The controlling question in this appeal is whether the charge dealt properly with the matter of the intent of the accused.
The medical evidence presented by the Crown included that of Dr. Ross, a pathologist, who had performed the autopsy. Besides two cuts in the scalp to the bone each 1¼” to 1½” long and one above each ear he found a star-shaped laceration 1¼” in diameter 1½” behind the left ear which led to a fracture of the skull 2¼” below. The fracture held four bone fragments covering an area of 1¼” by ¾”. These were raised or extended ¾” inside the skull and into the brain which was lacerated and covered with blood. In the doctor’s opinion the fracture was caused by external violence applied from above downwards, a much greater force than would be required for the cuts above the ears. The latter could have been caused by the kick of a boot shown to have been worn by the accused, who admitted having kicked the deceased “a couple” of blows. The doctor did not, however, believe that the stellated wound and fracture had been caused by the toe of a boot. He described the kind of instrument indicated by the form and character of the wound and fracture as having a surface moderately sharp with a relatively blunt point like a small-headed hammer or a very sharp rock. A scarf had been tied about the deceased’s neck, but no evidence of constriction of the neck or of any obstruction to the throat was found. A belt had been fastened around the head covering the mouth or lips and its effect in relation to the death was speculative. The motive behind either the scarf or belt is not clear. An analysis of the blood showed 396 milligrams of alcohol concentrated in 100 milliliters of blood, indicating severe intoxication.
In his opinion several factors may have contributed to the death. An exposure to four degrees below zero of a person so intoxicated could itself have been fatal and that cause could have been accelerated by the brain injury. Conversely the contusion of the brain was equally sufficient, and probably aggravated by the alcoholic condition and the exposure:—
… the skull injuries were such ‘that they would render a person unconscious, and being exposed to cold in this manner would result in his death. A high blood level of that level would similarly render a person unconscious and in similar exposure would be expected to cause his death.
He could not say which of the two had rendered the deceased unconscious but Mr. Dewar agreed that it could be taken as the fracture. It is not suggested that the other two scalp wounds or the abrasions on the cheeks played any part in the death.
It can be seen, therefore, that the vital physical fact was the brain contusion. It follows from the doctor’s description of the instrument which might have caused it that if the deceased had been struck in the face and had fallen backwards on a sharp stone or piece of metal, the fracture could have resulted; and this possibility is strengthened by the direction taken by the violence, downwards and inwards. There was, near the body, in a lane leading to the rear of buildings, a pile of miscellaneous pieces of iron. The accused with the deceased had walked from a restaurant to the lane; two others who had been with them and were called as witnesses, following after, had stopped in a vacant lot 40 or 50 yards from where the body was found and after remaining there ten minutes or so had returned to the cafe. The movements of the accused from midnight until 3.05 a.m. were fairly well covered by a number of witnesses and nothing indicates the possession of an instrument that fits the description given. There was snow on the ground covering the area. The time taken up by the drinking and leading up to the quarrel was not considerable and Mr. Dewar rather stressed the fact that the period between leaving the restaurant and reaching the railway where the. accused entered a box car was within 45 minutes.
The charge did not deal with the iron pile as a condition within the area in which the fight had taken place or whether or not the accused was aware either of it or other objects scattered around that could have been the means of such a fracture: and there can be little doubt that he did not realize that such an injury had been suffered. The deceased was a well built man, evidently in good health, probably around thirty-five or forty years of age. The accused is thirty-seven and likewise seems well set up. Both had been drinking beer and alcohol. From an earlier incident the same night, the deceased seemed easily provoked although on that occasion easily mollified. What in fact took place between them was a brutal drunken brawl.
The question, then, of actual intent became of the first importance. In the course of the charge, the trial judge used the following language:—
In considering whether an accused is capable of having the intent to cause death or of having the intent to cause bodily harm, and being reckless whether death ensues or not, and knowing that the bodily harm done is likely to cause death, we start with two presumptions of law.… The second presumption of law you have to consider is that every man is presumed to have intended the natural consequences of his acts, and therefore, for example, where one man deliberately shoots a gun at another, an intent to cause death, or at least to cause bodily harm likely to cause death, will be presumed.
* * *
The injury (the fracture) was sustained in the fighting; the accused is presumed to intend the consequences of his own act, subject to drunkenness or provocation, which I have to deal with later, so that if this deceased sustained that injury in the course of that fight, then the accused must be considered to have intended all the consequences of his acts on that occasion, subject to what I will say later about other possible defences.
* * *
If you decide that the accused caused the death of the deceased, you must next decide, Did he mean to cause him bodily harm that be knew was likely to cause his death and was reckless whether death ensued or not? That is, in either case you must consider the accused’s capacity to form an intent, and in the second case, his ability to know that what he did was likely to cause death.
Other passages emphasized “capacity” to the same effect. In none of them is any distinction made between what is meant by the “natural consequences” as related to the direct or indirect cause of death in fact and as related to the intention made responsible for death. What the language used embraces is the consequence of death regardless of hidden and unappreciated causes. So stated it means that the legal presumption would hold the accused, because of the illegal fighting, to have intended to bring about the death by the fracture and the injury to the brain, an intention which, assuming him to be capable of forming it, the jury were told they must attribute to him.
This, with the greatest respect, confuses the question of causing a homicide with that of attributing to the accused an intent or state of mind. Under the Code as at common law the person whose act with its consequences operating directly or indirectly in fact do bring about a death is looked upon as the cause of it and in the earliest days that itself was sufficient to attract legal responsibility. In the course of years this was modified and under the Code the classification of the stages of homicide leading from the actual cause to the final liability for murder or manslaughter is clearly set out. Section 250 of the former Code defines “homicide” in the sense I have indicated. Next is a subdivision into “culpable” or “not culpable”, with the latter of which we are not concerned. Culpable homicide is “the killing of any person either by an unlawful act or by an omission”, s. 252(2), and is either murder or manslaughter. Section 259 proceeds to the definition of murder and in s. 260 it becomes associated as an incidental consequence with the commission of certain other crimes. By s. 252, culpable homicide, not, within those two sections, amounting to murder, is manslaughter, which is therefore the residual aggregate of acts of culpable homicide. The Code following the common law, does not expressly distribute mens rea to all cases of manslaughter; for example, “unlawful acts” still remain a not wholly determined area, the nearest pronouncement being that of the House of Lords in Andrews v. Director of Public Prosecutions 2.
Assuming that the death here was a culpable homicide, the first and essential inquiry is whether it comes within the two sections dealing with murder. Applicable to the facts, there is, by s. 259(a), the specific intent to cause the death, and (b) that the offender “means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and is reckless whether death ensues or not”. If, in this case, the fracture was caused by the fall backwards on a sharp point of iron, it is not suggested by the Crown that the presence of such a means of injury was shown to be within the knowledge of the accused, much less that he intended to cause bodily injury by that means. Then in s. 260 the other crimes out of which murder may arise are specifically named but they do not include a mutual battery, to which the language, “means to inflict grievous bodily injury for the purpose of facilitating the commission of” an offence named or his flight thereafter, is inapplicable. Finally s. 261 reduces the act that would otherwise be murder to manslaughter if it is inflicted in the heat of passion aroused by provocation. But in the absence of knowledge of the iron or other object there was nothing to/bring the case within the provisions of ss. 259 and 260 unless the intent was connected with the blow of the fist or the kicking and, apart from the fact that if these had been done in the passion of the fight an intent to kill would not have converted the offence into murder, that either could have caused the death, a view rejected by the medical evidence, is not contended.
The charge then never really put to the jury the substantial defence. If the accused knew nothing of the skull fracture nor existing conditions that coupled with a knockdown could cause it, I am quite, unable to see how anything flowing from it could be considered to be within any legal presumption of intention related to consequences, natural or unnatural. As put to the jury, the only question to be considered was the mental capacity of the accused to appreciate such a sequence of events and such a result, a capacity which I will assume him to have had; but that omitted the vital link of knowledge actual or imputed that could produce such a “natural consequence”, as well as the intent to bring such an injury about. This, in my opinion, was a fatal omission which vitiated the charge.
These considerations deal with what may be called the primary acts which brought about the death. A subsidiary or supplementary cause, distinct and separate from the former, is suggested in the tying of the belt around the head of the deceased, the possible effect of which I have mentioned, and the flight of the accused, thereby abandoning the victim, drunk and unconscious, in a remote spot, in early morning and zero weather. These acts, it is said, “accelerated” the death, as on the evidence they might have been found to have done so, and are to be held themselves conclusively to constitute acts of murder.
Assuming that flight, after knocking down in a mutual fight a person who, through a hidden cause, is rendered unconscious, can be looked upon as a new and felonious act, and assuming also that the charge sufficiently differentiated between these two groups of facts as independent causes, it is obvious that from the general verdict found it is impossible to say whether the jury proceeded upon the one or the other; and any finding by a court in appeal that the jury must have found guilt on the one or the other might be on that which the jury rejected.
But there is still graver objection to such a step. This supplementary conduct to be brought within s. 259 must have been carried out with the intent of bringing about death or was such as to be known by the accused to be likely to cause death and was done recklessly as to its result. It must further be found that before being done there had been time for the passion of the fight to have cooled. That these facts could have been found in favour of the accused cannot, in my opinion, be seriously contested. Nothing of this was contained in the charge and it would be a usurpation of the function of the jury for any Court to make, as we are asked by the Crown under s. 1014(2) of the Code to make, such a finding on this part of the issue.
I would, therefore, allow the appeal and direct a new trial.
Locke J.:—This is an appeal brought pursuant to leave from a judgment of the Court of Appeal for Manitoba, dismissing the appeal of the present appellant from his conviction for murder, after a trial before the Chief Justice of Queen’s Bench and a jury.
The five questions of law upon which leave to appeal was granted are stated in other reasons to be delivered in this matter and I do not repeat them. It is necessary for a proper consideration of this matter to consider in detail the facts which were proven in evidence at the trial. So far as they are relevant they were as follows:—
At about 2.15 of the morning of January 6, 1955, the appellant left the St. Louis Café, a small restaurant situated on Higgins Avenue in Winnipeg, a short distance east of Main Street, in company with an Indian, August Flatfoot, and two other men, by name Jorundson and Bard. The appellant and the Indian had been drinking intermittently during the previous evening and earlier that morning. Both had been drinking a mixture of rubbing alcohol and some soft drink and, to the restaurant keeper who saw them at the time, Flatfoot appeared drunk. The four men separated shortly after leaving the place, the appellant and Flatfoot announcing they were going to get some more alcohol and walked together east on Higgins Avenue. Jorundson and Bard said they would wait for them and, according to them, after waiting a few minutes, the other two not returning, they left to go to a place where they might spend the night.
At about 7 o’clock that morning the body of Flatfoot was found lying in a lane running east and west, south of and parallel to Higgins Avenue. Macdonald Avenue lies to the south of Higgins Avenue and runs parallel to it and the body was found lying face downward in the snow at the rear of 107 Macdonald Avenue, which is approximately opposite to the rear of 154½ Higgins Avenue. Later that day the appellant was apprehended at St. Malo, a village south of Winnipeg, and brought by an officer of the Royal Canadian Mounted Police to that city and lodged in the jail.
Early the following morning the appellant, after being properly warned, made a statement to the police which was admitted in evidence at the trial. When he was informed by Detective Hinton that he might be charged with the murder of Flatfoot, he said first that “It was self-defence” and then dictated a statement which was taken down by the detective and, after having been read over, signed by the appellant. His statement, after reciting his movements up to the time he had gone to the restaurant and met Flatfoot and the other two, said:—
Gus and me kidded each other along, and then we tossed up for the coffees and Gus lost, so he bought for the four of us. Then we went down Higgins Ave., you know that lot at the back of the terraces there. We started drinking there, then Gus started swearing at me. I guess I swore at him too, and then he pushed me. I got mad and we started to fight. The other two guys walked away. Gus hit me about three or four times. He gave me one right in ‘the mouth. I got a couple of scratches. I hit him with my left. I got in a few, but I hurt my hand. You can see it’s all swollen. Gus fell down and I kicked him a couple. I guess it was self-defence. Then I fell down, that’s when I got the blood on my pants. I put his scarf around his neck because he was unconscious, and I thought he might get cold. I put the belt around his head loose. I guess I thought it would do some good.
Some two hours afterwards, Detective Hinton, with another officer, after again properly warning the appellant, asked him what had happened to the coat Flatfoot was wearing and he then said:—
After the fight, Gus was lying on the ground, he had his coat half on, so I guess I took it off him. I put it under my arm. I had it with me in the gravel car. I was using it to sit on and that and I left it in the car when I got off the train.
When brought to the police station on the afternoon of the previous day, the condition of his clothing and of his body had been examined by Inspector Webster of the city police force. The left leg of his trousers was stained at the knee and the underwear worn by him was stained in the same place, and the stains were shown to have been caused by blood. The appellant’s left hand was badly swollen from the base of his fingers to the wrist and there were three slight scratches on his face. There was no evidence of any other physical injury.
The body of Flatfoot was lying with the head to the north, the feet being 4 feet distant from the back of a shed at the rear of 107 Macdonald Avenue. The conditions existing at the place were observed by police officers Edwards, Booden and Scott and photographs were taken before the body was moved. The coroner, Dr. Fryer, was summoned, arriving at 7.40 a.m. and, after examining the body, pronounced life to be extinct. He gave in evidence some account of its condition and attempted to estimate the time of death which, he thought, had been some time between 1 and 3 o’clock that morning. The man was not wearing an overcoat, his trousers had been ripped down from the waist to the crotch, both back and front, and his buttocks were partly exposed. A leather belt obviously taken from the body of the victim ran through the man’s mouth and was tightly knotted behind his left ear. The hands were bare and the arms and the eyelids were frozen. It was 4° below zero and there was no wind. To what extent the rest of the body was frozen was not stated by the coroner. He observed the wounds on the head which were more closely described by Dr. Ross, a pathologist, who later the same day conducted a post mortem.
A plan prepared by Constable Scott, from measurements made by him, before the body was moved, showed the width of the lane to be 18 feet. Its northern limit lay 82 feet to the south of the southerly limit of Higgins Avenue, the southerly limit being the same distance from Macdonald Avenue. Billboards erected opposite the place on the south side of Higgins Avenue obstructed the view from that street. The evidence of the constables and the photographs taken by the photographer Allison show that, a short distance to the east of the head and shoulders of the man as he lay on the snow and at a lesser distance to the east of his buttocks, there were large patches of what they assumed to be, and was proven to be, blood Flatfoot’s hair, which was long and thick, was matted with blood which had come from three cuts on his head, one over each of the ears and one at the back behind the left ear, and there was blood on the back of his clothing. Between the place where the body was lying and the rear of the shed above referred to, there was what was described and which appears from the photographs to have been a quantity of metal and other junk, including what appears to be an old carriage wheel, part of a metal bed and some other miscellaneous material. Snow had drifted over the lower part of this junk.
In the back yard of 154½ Higgins Avenue, a hat which proved to be that of Flatfoot was found at a distance of 30 feet from his bod