Picken v. The King, [1938] SCR 457

Supreme Court of Canada

Picken v. The King, [1938] S.C.R. 457

Date: 1938-03-18

Edith P. Picken Appellant;

and

His Majesty The King Respondent.

1938: February 15, 16; 1938: March 18.

Present: Duff C.J. and Rinfret, Cannon, Crocket, Davis, Kerwin and Hudson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Murder—Death from abortion—Evidence—Direction to jury—Production of articles found in home of accused—Admissibility—Pertinency—Prejudice against accused—New trial.

Upon the appellant's trial on an indictment for murder, in order to prove death from abortion, it was essential for the Crown to establish that the uterus itself of the deceased was packed with cotton batting (some of which was found in the home of the accused) and that this was done by the accused; and it was also of vital importance that, upon that point, the direction to the jury should be so clear and unequivocal as to leave no room for misapprehension. It was also irregular to permit the production before the jury of articles found in the home of the accused by the police acting under a search warrant, when these articles had no real pertinency to any issue between the Crown and the accused, and two of them specially (medical text books) were by their nature calculated to create prejudice against the accused in the eyes of the jury. A new trial was ordered.

APPEAL from the judgment of the Court of Appeal for British Columbia[1], affirming the judgment of Fisher J. with a jury which convicted the accused (appellant) of manslaughter.

J. W. deB. Farris K.C. for the appellant.

J. A. Russell K.C. for the respondent.

The judgment of the court was delivered by

THE CHIEF JUSTICE.—The appellant was found guilty of manslaughter after trial at Vancouver on an indictment for murder.

We agree with the Chief Justice of British Columbia that in two respects there was a mistrial. As to the first, it was not seriously disputed that it was essential for the Crown to establish that the uterus itself of the deceased Helen McDowell was packed with cotton batting and that this was done by the accused. It was, therefore, of vital importance that, upon this point, the direction to the jury

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should be so clear and unequivocal as to leave no room for misapprehension. We think, with great respect, that the references to this issue by the learned trial judge, and the manner in which he presented the evidence to them, was likely to mislead.

We agree, moreover, with the learned Chief Justice that the production before the jury of the articles found in the residence of the accused by the police acting under a search warrant (with the exception of the "knitting needle and the bicycle spoke") ought not to have been permitted. These articles had no real pertinency to any issue between the Crown and the accused and two of them, the books, were by their nature calculated to create prejudice against her in the eyes of the jury.

On these grounds the appeal should be allowed. The majority of the Court are of the opinion that there should be a new trial and a new trial is accordingly ordered. The Chief Justice and Mr. Justice Davis think the conviction should be quashed.

Appeal allowed, new trial ordered.