Wu v. The King, [1934] SCR 609

Supreme Court of Canada

Wu v. The King, [1934] S.C.R. 609

Date: 1934-06-06

J. G. Wu (Alias Wu Chuck) Appellant;

and

His Majesty The King Respondent.

1934: April 30; 1934: June 6.

Present: Rinfret, Lamont, Cannon, Crocket and Hughes J.J.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Wounding with intent to commit murder—Sufficiency of charge to jury—Criminal intent—Provocation—Self defence—Defence of alibi—Inconsistency with other defences—Legal consequences from story of complainant being different from that of witnesses.

On the trial for wounding with intent to commit murder, the complainant stated that at about a quarter to 6 o'clock on the evening of November 6, 1932, after turning south on Jackson avenue from Hastings street, in Vancouver, he turned and saw accused following him. He then walked faster but as accused was catching up to him he ran diagonally across the road in a southeasterly direction. When he reached the curb on the east side of the road the accused caught up to him and fired a shot at him with a revolver. Accused then took $90 from his pocket and after firing two more shots at him ran across a vacant lot in a northeasterly direction, and on emerging on Hastings street he was recognized by two witnesses with a revolver in his hand. Two other Crown witnesses, Irwin and Brodner, were standing on

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the southwest corner of Hastings street and Jackson avenue, when they saw two Chinamen run from the northwest corner of Pender street and Jackson avenue (Pender street being one street south and parallel with Hastings street) across Jackson avenue in a northeasterly direction, followed by a third Chinaman who was calling to them in Chinese and gesticulating with his arms, and when the two men reached the curb on the east side of Jackson avenue the rearmost of the two men turned and fired a shot at the man following, who fell. He then "paused," stooped down and fired two more shots at him and he and his companion then ran northeasterly across the vacant lot. The accused attempted to prove an alibi by several Chinese witnesses who swore he was in Victoria from the 2nd until the 12th of November, 1932. The accused was convicted. On appeal the conviction of McDonald J. was affirmed by an equal division of the Court. Counsel for the accused contended before this Court that the trial judge should have instructed the jury that the accused was entitled to have them consider any alternative defence the supporting facts of which appear in the record, and that, as the record shewed that the complainant was chasing the accused, waving his arms and shouting in Oriental, such conduct was sufficient, if the jury believed the evidence, to bring into play the sections of the Criminal Code relating to provocation and self defence. He contended that the failure of the trial judge to adequately instruct the jury on the issue of self defence, was a misdirection which entitled the accused to a new trial. Counsel for the accused also contended that the trial judge failed to properly instruct the jury on the question of intent, and erred in his charge in not explicitly and fully instructing the jury as to the legal consequences flowing from the two contradictory stories, in respect to the conduct of the parties prior to the shooting, as related by the complainant on one side, and Irwin and Bodner on the other.

Held that, under the circumstances of this case, there was no duty on the trial judge to instruct the jury on the issues of provocation or self defence. If it were material to the accused to prove that the words shouted in Oriental by the complainant amounted to provocation the onus was upon him to prove what the words were. In any event provocation, which would reduce murder to manslaughter, is not a defence to the charge as laid. Shooting in self defence would constitute a valid defence provided the accused brings himself within sections 53 and 54 of the Code. It is justifiable to repel an unprovoked attack if the force used by the accused is not meant to cause death or grievous bodily harm and is not more than is necessary for the purpose of self defence. It is justified, even if it does cause death or grievous bodily harm, if it is done under reasonable apprehension of death or grievous bodily harm to himself, and if he believes, on reasonable grounds, that it is necessary for his own preservation. There is no evidence in the record from which a jury could reasonably infer that the accused when he shot the complainant did so under a reasonable apprehension of death or bodily harm to himself, or that he reasonably believed that he could not otherwise save himself from bodily injury. Such evidence is not in the record. The rule, therefore, that an accused person at trial is entitled to have the jury pass upon all his alternative defences is limited to the defences of which a foundation of fact appears in the record.

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Even then the rule is not without exception, and one exception is, that it has no application where the accused by his defence (alibi) which he sets up at the trial, has negatived the alternative defence for which he afterwards seeks a new trial.

The trial judge instructed the jury as follows: "If you believe that the accused did what the witnesses say was done by the man who assailed the complainant then he would be guilty of the charge laid." Counsel for the accused contended that there was misdirection, because the trial judge's statement meant that the accused would be guilty of the crime charged irrespective of his intent, if the jury accepted the evidence of Irwin and Bodner that the complainant was pursuing the other two.

Held that the language used by the trial judge is not open to the meaning sought to be put upon it. It was intended to mean, and would be understood by the jury to mean, that if the accused shot and wounded the complainant, with a revolver, in the manner described by the three persons who witnessed the shooting, the accused would be guilty of wounding with intent to murder; or, in other words, if the shooting took place in the manner detailed by the witnesses, the intent was obvious and would be implied. More than that if, under the circumstances of this case, the jury had, without any explanation from the accused as to his intent, reached the conclusion that intent to murder was not established, the verdict would have been perverse.

Held also that, as to the inconsistencies between the evidence of the witnesses, Irwin and Bodner, and that of the complainant as to the actions of the parties before the shooting took place, it was for the jury to consider those inconsistencies if they thought they were material; and the jury must have given them full consideration and rejected them because they did not throw any light upon the shooting or the intent of the accused.

Judgment of the Court of Appeal (48 B.C. Rep. 24) aff.

APPEAL by the accused from the judgment of the Court of Appeal for British Columbia[1], dismissing his appeal on equal division of the Court from his conviction by D. A. McDonald J., and a jury, for murder.

The material facts of the case and the questions at issue are fully stated in the head-note and in the judgment now reported.

W. B. Farris K.C. for the appellant.

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

The judgment of the Court was delivered by

LAMONT J.—This is an appeal from the decision of the Court of Appeal for British Columbia[2] affirming, by an equal division of the court, the conviction of the accused,

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J. G. Wu (alias Wu Chuck), in the Supreme Court of British Columbia, following the verdict of the jury.

The accused was charged:

That at the city of Vancouver in the county and province aforesaid, on the sixth day of November in the year of our Lord one thousand nine hundred and thirty-two, J. G. Wu, alias Wu Chuck, unlawfully did wound Wong Toy with intent thereby then and there to murder the said Wong Toy, ***

The charge raised two points for consideration, first as to the wounding and second as to the intent.

That Wong Toy was wounded at the time and place stated in the indictment is established. He was found by police constable Carstairs, a little before 6 p.m. on November 6, 1932, lying in a pool of blood about fifty feet north of the northeast corner of Jackson avenue and Pender street with three bullet wounds in his body. The manner in which he received his wounds was testified to by three witnesses. First there was Wong Toy himself. He is a Chinese labour contractor and his story is: that, about 5.45 p.m., on November 6, 1932, he was walking along the west side of Jackson avenue in the city of Vancouver going towards Pender street when he observed that the accused was following him. He then began to walk faster and, looking back over his shoulder, saw that the accused had also accelerated his speed. He then began to run, heading southeast across Jackson avenue, and the accused chased after him and reached the sidewalk on the east side of Jackson avenue about the time he (Wong Toy) reached it; that the accused drew a revolver, pointed it at him and fired. The shot struck him in the leg about four inches above the knee and caused him to drop to the sidewalk; that, as he was sitting on the sidewalk leaning on his arm with his hand on the ground, the accused came up close, stooped down and took $90 out of his pocket; that he (Wong Toy) then shouted "Hold-up, hold-up" and that the accused fired two more shots at him, hitting him on the right loin near the point of the thigh and also on the right shoulder breaking his collar-bone; that the accused then ran northeast across a vacant lot lying just east of Ferrera Court, which building is on the corner of Jackson avenue and East Hastings street. Wong Toy was taken to the hospital and found to be very severely wounded. He positively identified the accused as his assailant and said he had known him more than two years.

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Two other persons were eye witnesses of the shooting. They were Elmer G. Irwin and James Bodner. They testified that they were standing on the southwest corner of Jackson avenue and Hastings street and that they had a clear view of Jackson avenue. They say they saw two men running in a northeasterly direction angling across Jackson avenue, followed by a third who was running after them and waving his arms and shouting in Oriental. Irwin's story is that as they approached the sidewalk on the east side of Jackson avenue, the rearmost of the two men turned and fired at the third man who was within a few feet of him; that after the shot was fired the one who did the shooting paused and then "he kind of stooped a little bit and fired two other shots." He says that he and Bodner were more than half a block from where the shooting took place (the plan drawn to scale shews that they were about 250 feet away); that the night was "kind of dark, a little foggy, just getting dusk." He was asked if the man who did the shooting or his companion had touched the body of the victim, and he replied "I don't think they touched, I didn't see it anyway." After the shooting Irwin says he and Bodner went to where the victim was lying but they did not know him, neither had they recognized the man who did the shooting. This man, after firing the third shot, turned and ran in the direction of Ferrera Court.

Bodner testified that when they first saw the third man pursuing the other two he was a few yards behind them, and, that when the two in advance reached the curb of the sidewalk, the pursuer was almost up to them; that one of the pursued turned and shot the pursuer and brought him to his knees; that, after firing the first shot, an interval of about one minute elapsed when the man who had fired the shot stepped up close to the victim and fired two more shots at him. Bodner denied that the shooter had touched the victim with his hands. After firing the third shot he says he turned and ran toward the back of Ferrera Court. The night was about half light and a little foggy.

Four other persons were in the neighbourhood at the time of the shooting and they were called as witnesses by counsel for the Crown. Two of them were Chinese, Wong Lee Fong and Gong Fay. At the time of the shooting

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these two were walking westerly along Hastings street when they heard a shot fired, and then two more, and, shortly afterwards, they saw the accused—whom they both had known for between two and three years—emerging from between the two sign-boards on the vacant lot just east of Ferrera Court on Hastings street. When they first saw him he had a revolver in his hand and was running, but he put the revolver in his pocket when he came to a puddle of water lying between the two sign-boards, then, plunging through the water, he ran across Hastings street about ten paces in front of them. They then went down Jackson avenue to where Wong Toy was lying.

The other two witnesses were brothers, Jack Massey and Cyrus Massey. They were walking east on Hastings street near Ferrera Court when they heard the noise of three shots, but thought it was the bursting of fire-crackers. They say that about a second or so after they heard these explosions a man ran out from between the sign-boards on the vacant lot just east of Ferrera Court, and ran across Hastings street and then turned towards Princess street. Their attention was attracted when he plunged into the water between the sign-boards. Jack Massey did not attempt to identify the accused but his brother Cyrus did. The probative value of his identification was, however, greatly weakened by his admission that he did not see the accused's face but identified him by his size and, that, before the preliminary examination at the police station at which he identified the accused, a Chinaman had shewn him a photograph of the accused and told him that that was the man and asked him if he would recognize the man represented by the photograph as the man who ran across Hastings street on the occasion in question.

On the evening of November 6, after the shooting, an information was sworn out in Vancouver against the accused, but it is established that he went over to Victoria and, under the name of Mark Ark (a name by which he was not known in Vancouver), sailed for China on November 12th on the ss. President Taft (the first boat to sail from Victoria for China after November 6th). When he was asked by the immigration officer for his photograph for identification on his return, he told the officer that he was not returning to Canada. He was arrested in Hong

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Kong on December 20th on a charge of attempted murder, and arrived back in Vancouver January 16th, 1933.

At the trial the only defence he set up was that, on November 6th, 1932, he was in Victoria, B.C., and not in Vancouver at all, and he brought a number of Chinese witnesses from Victoria to establish his alibi. Two of them swore that they saw the accused in Victoria on November 2, 1932, and every day thereafter until he sailed for China on the 12th. Another testified that he saw him in Victoria on November 3rd, and each subsequent day until the 12th. A fourth witness testified that he was present at a banquet given to the accused by his brother-in-law, N. G. Hong, on November 6th; that the banquet commenced around 5.30 p.m. and was all over by seven o'clock, when they went home. The accused did not give evidence at the trial.

The jury rejected the evidence as to the accused being in Victoria at the time of the shooting and found him guilty of the charge as laid. The trial judge sentenced him to imprisonment for life.

The accused appealed to the Court of Appeal but that court, by an equal division, affirmed the conviction. The accused now appeals to this Court.

The chief reasons put forward on behalf of the accused for the granting of a new trial are:

1. That the trial judge instructed the jury as follows:

If you believe that the accused did what the witnesses say was done by the man who assailed the complainant then he would be guilty of the charge laid.

that this was a misdirection

(a) Because in effect it withdrew from the consideration of the jury the question of provocation and the issue of self-defence, which defence, it was contended, was still available to the accused notwithstanding that the jury rejected his alibi.

(b) that the statement meant that if the jury accepted the evidence of Irwin and Bodner that Wong Toy was the pursuer, that nevertheless, the accused would be guilty of the crime charged, irrespective of his intent.

2. That the trial judge failed to properly instruct the jury on the question of intent.

3. That the trial judge erred in his charge in not explicitly and fully instructing the jury as to the legal con-

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sequences flowing from the two contradictory stories, in respect to the conduct of the parties prior to the shooting, as related by the complainant on one side, and Irwin and Bodner on the other.

1. (a) Counsel for the accused contended that the trial judge should have instructed the jury that the accused was entitled to have them consider any alternative defence the supporting facts of which appear in the record, and that, as the record shewed that the complainant was chasing the accused, waving his arms and shouting in Oriental, such conduct was sufficient, if the jury believed the evidence, to bring into play the sections of the Criminal Code relating to provocation and self defence. He contended that the failure of the trial judge to adequately instruct the jury on the issue of self defence, was a misdirection which entitled the accused to a new trial.

Counsel for the Crown pointed out that the trial judge had instructed the jury on the question of self defence and had read to them sections 53 and 54 of the Criminal Code which set out the law on the subject, and contended that such instruction was sufficient to enable the jury to pass upon the issue.

There is no doubt that in the trial court an accused person is ordinarily entitled to rely upon all alternative defences for which a foundation of fact appears in the record, and, in my opinion, it makes no difference whether the evidence which forms that foundation has been given by the witnesses for the Crown or for the accused, or otherwise. What is essential is, that the record contains evidence which, if accepted by the jury, would constitute a valid defence to the charge laid. Where such evidence appears it is the duty of the trial judge to call the attention of the jury to that evidence and instruct them in reference thereto. The only evidence appearing in the record upon which even an argument could be founded that the accused shot in self defence is that of Irwin and Bodner that, prior to the shooting, the complainant was running after the accused and his companion, waving his arms and shouting in Oriental. What he was saying we do not know. If it were material to the defence to prove that the words amounted to provocation, the onus was upon the accused to prove what the words were. On any event provocation,

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which would reduce murder to manslaughter, is not a defence to the charge as laid. Shooting in self defence would constitute a valid defence provided the accused brings himself within sections 53 and 54 of the Criminal Code. It is justifiable to repel an unprovoked attack if the force used by the accused is not meant to cause death or grievous bodily harm and is not more than is necessary for the purpose of self defence. It is justified, even if it does cause death or grievous bodily harm, if it is done under reasonable apprehension of death or grievous bodily harm to himself, and if he believes, on reasonable grounds, that it is necessary for his own preservation. There is no evidence in the record from which a jury could reasonably infer that the accused when he shot the complainant did so under a reasonable apprehension of death or bodily harm to himself, or that he reasonably believed that he could not otherwise save himself from bodily injury. The rule, therefore, that an accused person at trial is entitled to have the jury pass upon all his alternative defences is limited to the defences of which a foundation of fact appears in the record. Even then the rule, in my opinion, is not without exception, and one exception is, that it has no application where the accused, by the defence which he sets up at the trial, has negatived the alternative defence for which he afterwards seeks a new trial.

The only defence which the accused set up at the trial was an alibi. In effect he said:

I did not shoot the complainant as a result of provocation, neither did I shoot him in self defence. At the time of the shooting I was in Victoria and therefore I could not have shot either under provocation or in self defence.

It is quite true that the accused did not go into the witness box and swear that he was in Victoria at the time of the shooting, but that is the defence which was set up on his behalf, with his consent and acquiescence, and which he asked the court to accept, and, in my opinion, he is bound by it. The defence that the accused was in Victoria at the time of the shooting was not only inconsistent with, but it negatived the defence now sought to be set up. Under these circumstances I fail to see how any duty could rest on the trial judge to instruct the jury to consider an alternative defence which the accused, by the defence he did set up, declared had no foundation in fact.

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In Rex v. Philpot[3], the Court of Criminal Appeals in England held that upon an application for a new trial the court would not entertain a case for the appellant inconsistent with the defence set up at the trial. At page 143, Lord Alverstone, Chief Justice, in giving the judgment of the court, said:—

It would be a great danger if people could conduct cases on one line in the Court of first instance, and, when that was unsuccessful, conduct them on another line in the Court of Appeal. No case ought to be urged in this Court which is inconsistent with the case set up in the Court below.

and in Rex v. Deane[4], it was held, upon an appeal from a conviction, that

the Court will not entertain a defence which was not, but which could have been, set up at the trial.

The accused did not at the trial claim that he shot in self defence. He could not have set up that defence without endangering everything he hoped to achieve by his alibi.

I am, therefore, of opinion that, under the circumstances of this case, there was no duty on the trial judge to instruct the jury on the issue of self defence. But, assuming such a duty to exist, the trial judge, by explaining to the jury the extent to which, and the circumstances under which, a person unlawfully assailed was justified in using force to defend himself, did, in my opinion, sufficiently instruct them to enable them to properly pass upon the issue.

1. (b) I entirely disagree with the meaning sought to be placed on the trial judge's statement that the accused would be guilty of the crime charged irrespective of his intent, if the jury accepted the evidence of Irwin and Bodner that Wong Toy was pursuing the other two. The judge's statement makes no reference as to which was the aggressor. The trial judge simply states that if they believe that the accused did what the witnesses say was done by the man who assailed the complainant, he would be guilty of the charge laid. It will be observed that he is referring there to what the witnesses said, not to what any one witness said. Now what did the witnesses say was done by the man who assailed the complainant? There were three witnesses who saw what the assailant did, and they all agree that he shot and wounded the complainant. That is what the as-

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sailant did. The complainant himself goes a little further and says that his assailant robbed him as well, but, as the accused is not charged with robbery, that phase of it does not seem to me to be material because the statement simply says that the accused would be guilty of the charge laid and the charge laid was wounding with intent to murder. The language used by the trial judge, in my opinion, is not open to the meaning sought to be put upon it. It means, and I am satisfied, was intended to mean, and would be understood by the jury to mean, that if the accused shot and wounded the complainant, with a revolver, in the manner described by the three persons who witnessed the shooting, the accused would be guilty of wounding with intent to murder; or, in other words, if the shooting took place in the manner detailed by the witnesses, the intent was obvious and would be implied. If, therefore, the trial judge was right in his law—that the wounding, under the circumstances, implied an intent to murder—he not only succinctly stated the law but placed it before the jury in a manner which enabled them to easily understand their duty in respect both to the facts and the law.

In Rex v. Monkhouse[5], the accused was charged with wounding with intent to murder, and Coleridge J. on the question of intent charged the jury as follows:—

It is a general rule in criminal law and one founded on common sense that juries are to presume a man to do what is the natural consequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention. A man could not put a pistol, which he knew to be loaded, to another's head and fire it off without intending to kill him; but even there the state of mind of the party is most material to be considered. For instance if such an act were done by a born idiot the intent to kill could not be inferred from the act. ***

Under such circumstances as these, where the act is unambiguous if the defendant was sober, I should have no difficulty in directing you that he had the intent to take away life, where death had ensued the crime would have been murder.

The same principle was laid down in Rex v. Howlett[6]: In that case the prisoner was indicted for wounding John Allen, with a tin can, with intent to murder him. In summing up to the jury Baron Alderson, after pointing out that they would have to consider whether, in case death had ensued, the accused would have been guilty of murder, instructed them as follows:—

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When a deadly weapon, such as a knife, a sword, or gun is used, the intent of the party is manifest; but with an instrument such as the present (a tin can), you must consider, whether the mode in which it was used satisfactorily shews that the prisoner intended to inflict some serious or grievous bodily harm with it.

In the case at bar there could be no doubt that had death ensued from the shooting the accused must have been guilty of murder. Therefore, in view of these authorities, I am of opinion that the trial judge was quite right in instructing the jury that if they found that the accused wounded the complainant with a revolver in the manner described by the witnesses, his intent to murder was obvious and would be implied. This objection to the judge's charge therefore fails.

In addition to what I have already said on the question of intent, I would be prepared to go further and hold that if, under the circumstances of this case, the jury had, without any explanation from the accused as to his intent, reached the conclusion that intent to murder was not established, the verdict would be perverse. What were the circumstances? The accused had shot the complainant and brought him to his knees. The complainant was either kneeling on the ground or partially sitting on the sidewalk, leaning on his hands. The accused could see that he had no weapon in his hands, and the hospital authorities have established that he had no weapons on him. Having the complainant at his mercy, the accused makes a perceptible pause, then stoops down when close to the complainant and fires two more shots into him. What was the object of stooping? The complainant says to steal his money. The only other suggestion was (and that was by counsel for the accused) that he stooped for the purpose of getting a better shot, or a shot at him in front. The complainant was evidently facing the accused on his hands and knees, for all shots took effect in front, and it may be that the accused stooped so as to be able to shoot him in front with the last two shots. If that be the explanation of the stooping it only demonstrates that the intention of the accused was to murder him. If the stooping was to rob him he was equally guilty. As there was abundant evidence that the accused did the shooting, the jury, in my opinion, in the absence of any explanation of his intention

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by the accused, were quite right in holding that the intent was sufficiently apparent to justify them in convicting the accused.

3. Counsel for the accused seemed to be of opinion that, where the counsel for the Crown calls witnesses who give inconsistent stories, he is under an obligation to in some way reconcile these stories, otherwise the jury should take the inconsistencies as shewing that the Crown has failed to establish the charge. In my opinion counsel for the Crown is under no such obligation. I have always understood that it was the duty of the Crown counsel to place before the court the evidence of those who were eye witnesses of the crime with which the accused was charged, whether they give evidence which is consistent with the commission of the crime by the accused or otherwise. I have always considered that counsel for the Crown was in the position of an officer of the court whose duty is to get at the truth irrespective of whether or not the evidence supports the Crown's case. And, when he has put in the evidence of the eye witnesses, he can leave it to the jury to say which of the witnesses they will believe and how much of the testimony of each they will accept.

The evidence of the witnesses, Irwin and Bodner, is inconsistent with that of the complainant as to the actions of the parties before the shooting took place, it was therefore for the jury to consider those inconsistencies if they thought they were material; and I have no doubt the jury gave them full consideration and rejected them because they did not throw any light upon the shooting or the intent of the accused.

Considering the charge of the trial judge as a whole and the evidence as it appears in the record I see no good reason for differing with the majority of the Court of Appeal. I would, therefore, affirm the conviction and dismiss the appeal.

Appeal dismissed.