Wexler v. The King, [1939] SCR 350

Supreme Court of Canada

Wexler v. The King, [1939] S.C.R. 350

Date: 1939-05-12

Frank Arthur Wexler Appellant;

and

His Majesty The King Respondent.

1939: April 25; 1939: May 12.

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

ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Criminal law—Charge of murder—Accused acquitted at trial—Appeal by the Crown under section 1013(4) Cr. C.—New trial ordered—Non-direction by trial judge on grounds not raised at the trial—No exception taken by the Crown to the trial judge’s charge—Whether section 1013(4) Cr. C. applicable.

The appellant was tried on a charge of having murdered one Germaine Rochon in Montreal. The case presented by the Crown against the accused at the trial was that he had intentionally shot the deceased with the intention to kill her. The defence relied upon the testimony given by the appellant himself, that the shooting was the result of an accident. The trial judge instructed the jury, that if they believed the account given by the accused he was entitled to be acquitted. Such instruction was accepted as satisfactory by counsel for the Crown and for the accused and that it correctly formulated the single issue of fact which both counsel put before the jury as the sole issue upon which it was their duty to pass. The jury rendered a verdict of not guilty. The Crown appealed to the appellate court of Quebec, under the provisions of section 1013 (4) of the Criminal Code. A new trial was directed by that court on the ground that the trial judge had erred in his charge by omitting to instruct the jury, first, that from certain facts disclosed by the testimony of the appellant, the jury might have convicted the accused of murder under section 259 (c and d) Cr. C., and second, that the accused having in his charge a loaded firearm and being bound to take reasonable precautions to avoid danger to human life, the jury might have convicted the accused of manslaughter under section 247 and 252 (2) Cr. C. These grounds, raised by the Crown before the appellate court, were not considered nor suggested at the trial. The accused appealed to this Court.

Held that the appeal should be allowed, the order granting a new trial be set aside and the verdict of the jury acquitting the appellant be restored.

Subsection 4 of section 1013 Cr. C. was not intended to confer jurisdiction upon an appellate court to set aside a verdict of acquittal on a trial for murder in such circumstances as those in this case and so entitle the Crown to an order for a new trial in order to present an entirely new case against the accused.

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APPEAL by the appellant from a judgment of the Court of King’s Bench, appeal side, province of Quebec, setting aside a verdict of acquittal rendered by a jury in a trial for murder and ordering a new trial.

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

Antoine Senécal K.C. and Alexandre Chevalier for the appellant.

John E. Crankshaw K.C. for the respondent.

The judgment of the Chief Justice and of Davis J. was delivered by

The Chief Justice.—I have had the benefit of reading the judgment of my brother Kerwin and with that judgment I agree. I desire particularly to emphasize the course of the trial, and as I conceive it, its bearing upon the application of section 1013 (4) of the Criminal Code.

The appellant was indicted of murder by the killing of Germaine Rochon on the 29th of June, 1938. The appellant and the deceased Germaine Rochon were alone together in his apartment in the house of one Donato when she was killed by a bullet discharged from a pistol. To Donato and his wife who entered almost immediately afterwards and found the woman dead and the appellant shot through the chest, he said, in effect, “I shot her and then shot myself but she made me do it.”

The appellant, after long treatment in the hospital, recovered and gave evidence at the trial on his own behalf. He testified that he was holding the pistol in his hand intending to shoot himself when the woman, realizing his intention, seized the weapon and, in the confusion which followed, it “went off,” the bullet entering her body and killing her; and that he then turned the pistol upon himself.

The case presented by the Crown was that the appellant had intentionally shot the deceased Germaine Rochon with the intention of killing her. The defence relied upon the testimony given by the appellant himself. It was agreed by both counsel for the Crown and for the defence, and the learned trial judge so instructed the jury, that if

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they believed the account given by the accused he was entitled to be acquitted. I quote the words of the learned judge in which he summed up the whole matter at the request of counsel for the defence after the jury had retired and had been recalled:

The Court: Gentlemen, I have been asked by the defence attorneys, to give a further explanation on a certain point. I have told you that, if you are satisfied with the explanation given by the accused, that the shooting was an accident, that he was entitled to an acquittal, but I must add—and I think I did—I must add, even on that evidence, he is entitled to the benefit of the doubt; that is, if you are not reasonably sure that his explanations are not true, that you must give him the benefit of the doubt and acquit him.

That is, the accused is entitled to the benefit of the doubt on the entire evidence. You must be reasonably sure that he has committed the offence before finding him guilty.

We are left in no doubt that this instruction by the learned trial judge was accepted as satisfactory by counsel both for the Crown and for the accused and that it correctly formulated the single issue of fact which both counsel put before the jury as the sole issue upon which it was their duty to pass. Mr. Crankshaw, who appeared for the Crown, both at the trial and in this court, with the candour and sense of duty we should expect from him, stated that this was the only issue which counsel intended to put before the jury and did in fact put before them.

To the conduct of the trial, as a trial of that issue, no objection was or could be taken.

The principal grounds of appeal were: first, that the testimony of the appellant is susceptible of the interpretation that the accused intentionally discharged the weapon with the purpose of killing himself; and that it was by accident that the deceased was killed by the bullet intended by the accused for himself; and that, accordingly, the jury ought to have been instructed that if they so found they might convict the accused of murder in virtue of section 259 (c) of the Criminal Code; and

Second, the jury ought to have been instructed that the accused, having in his charge a loaded firearm that in the circumstances was calculated to endanger human life, in the absence of precaution or care, he was under a duty to take the necessary precautions to avoid such danger, and that if they thought the death of the deceased was due to his failure to perform such duty they might convict him of manslaughter.

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It was not suggested at the trial that the evidence of the accused was susceptible of the interpretation which is the basis of the first of these grounds. Such an interpretation of his evidence occurred to nobody. Nor did it occur to the Crown to suggest that a verdict of manslaughter might be rested upon the second ground.

The Crown asked the jury to reject the story told by the accused as a fabricated story and to find that he intentionally shot the deceased with the purpose of killing her. The Crown, by the appeal to the Court of King’s Bench, in effect asked to have the verdict on this issue set aside, and to be permitted to present to another jury a case based upon the testimony of the accused and upon a construction of it which did not occur to anybody until after the verdict had been pronounced. At the new trial, of course, there would be nothing to prevent the Crown advancing the same case as at the former trial and supporting it by fresh evidence.

I do not think subsection 4 of section 1013 was intended to confer jurisdiction to set aside a verdict of acquittal on a trial for murder in such circumstances. The point is not merely that the Crown did not take exception to the learned judge’s charge. The conduct of the trial with respect to the single issue of fact which was raised by the case put forward by the Crown was admittedly unimpeachable. The jury were told by the Crown that the determination of that issue in favour of the accused would entitle him to an acquittal. To set aside a verdict of acquittal in such circumstances, merely because the case for the Crown might, on a possible view of the evidence, have been put upon another footing would, it appears to me, introduce a most dangerous practice; a practice not, I think, sanctioned by the statute.

The judgment of Rinfret, Kerwin and Hudson JJ. was delivered by

Kerwin J.—On a charge of having murdered Germaine Rochon on June 29th, 1938, the appellant Wexler was tried and acquitted. On appeal by the Crown to the Court of King’s Bench, appeal side, of the province of Quebec, a new trial was directed on the ground that the trial judge had erred by omitting in his charge any reference to paragraphs (c) and (d) of section 259 of the

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Criminal Code, and also to section 247 and paragraph 2 of section 252 of the Code. Wexler now appeals to this Court.

It appears from the evidence that for some time prior to June 29th, 1938, Wexler had been drinking heavily and had on several occasions formed the intention of committing suicide but that at the last moment he had, on each occasion, desisted. He was on intimate terms with Germaine Rochon, who several times had stayed with him in a boarding-house in two rooms consisting of a bedroom and sitting-room. He had been in possession of a revolver for some months before June 29th, 1938, and on the 28th of that month he purchased a box of cartridges. On the day in question the revolver was loaded with five of these cartridges and it, together with the remainder of the cartridges, were in his rooms. He stated that he had definitely made up his mind on June 28th to shoot himself. The girl spent that night with Wexler and all of the 29th down to the time of the shooting. The accused testified that he desired to do away with himself when he was alone; that he asked the girl to leave and that she went to the telephone and the bathroom and returned to the bedroom. While the evidence is not quite clear, I adopt the trial judge’s understanding of it,—that Wexler was in the sitting-room and that he brought the loaded revolver with him from the sitting-room to the bedroom where the girl was, with his finger on the trigger. Notwithstanding his desire to commit suicide when he was alone, Wexler’s explanation of this last action of his is that he wanted to say good-bye. His account of what happened subsequently is as follows:—

Well, she seemed to see me playing with the revolver and I had gone over to the counter to take a drink and I was afraid that if I would wait I would not be able to kill myself once more as I tried before so I told her, I said “Good-bye.” I said “Good-luck” and I had the gun and she came over and said something—I cannot remember exactly what—but she grabbed hold of the gun and started to pull it and I fell with her on the bed. I do not remember exactly but the gun went off. Whether it went off while we were on the bed or before I cannot say for sure and after that she just got up like with a queer sort of a shock and walked towards the other door. I followed her so as to help her. I knew she was shot and she lay down and I could not pick her up. When I saw that I said “There is no use to wait any more” and I took the gun and pulled it and I do not remember much after that.

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The case made by the Crown against the accused at the trial was that he intended to, and did kill the girl. The defence was that so far as the girl was concerned the affair was an accident. At no stage of the trial was the claim put forth that Wexler, while in the act of discharging the revolver at himself with intent to commit suicide, shot the girl. As appears from the evidence at the trial and from the charge of the learned trial judge, and as admitted by counsel for the Crown, no such claim was ever considered. Thus we find that after referring to the fact that Crown counsel had defined “murder,” the judge stated in his charge:—

I think it is better for me to repeat it. You know what murder is. It is the killing of a human being, with malicious intent, with malice aforethought: Article 259 says that “Homicide may be culpable and non-culpable, will be murder, in the following cases,”

and he then proceeded to read paragraphs (a) and (b) of section 259 of the Criminal Code. He continued:—

I need not say that in this case, if the accused, when he shot the girl, intended to kill her, it is murder; if you come to that conclusion, because it is the first paragraph, if the offender means to cause the death of the person killed—when he used the revolver and intended to kill—and as a matter of fact, did kill her, it is murder.

There are two other paragraphs in Article 259, but we are not interested in them; it is usually applied to other cases.

Counsel for the Crown, at the conclusion of the charge, stated that he had no objection to it.

However, before the Court of King’s Bench and before this Court, it was urged that if Wexler, while discharging the revolver at himself, shot the girl, it would be murder, and that the trial judge should have so instructed the jury. Reliance was placed in the Court below and in argument before us on the charge to the jury in the case of Edward Hopwood[1]. From the report of the case, it appears:—

The defence put forward by the appellant, who refused to be represented by counsel at the trial, was that he was shooting at himself, that the deceased tried to stop him, and that there was a struggle, in the course of which she was accidentally shot. The judge directed the jury that even if they accepted this defence it would constitute murder if the shot which killed her was intentionally fired for the purpose of killing himself, but the jury found the appellant guilty of shooting the woman intentionally.

It is not necessary that we should pass upon the correctness of the statement that “it would constitute murder

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if the shot which killed her was intentionally fired for the purpose of killing himself,” but, in any event, each word of it is significant and its real meaning may easily be overlooked. That meaning becomes clearer upon a perusal of a report of the proceedings on the last day of the trial on page 3 of the Times newspaper of December 12th, 1913, where it is stated:—

Mr. Justice Avory, in summing up, explained the law applicable to the case and said that the questions for the jury were: (1) Did the prisoner intentionally discharge a loaded firearm at the deceased woman with intent to kill her or to do her grievous bodily harm? or (2) did he intentionally discharge it at himself with intent to kill himself and did the shot intended for himself kill the deceased? If either of these was the true view of these facts then the prisoner was guilty of murder. The third question for the jury was, Is it possible to accept the theory that the pistol went off by accident during a struggle to prevent him discharging it at himself, and was the death of the woman caused by his unlawful attempt to commit suicide? If so, they might find him guilty of manslaughter. If the death was not caused either of those ways then they might find the prisoner not guilty.

In that case, as explained in the report[2], the jury found the prisoner guilty of murder under the first heading referred to by Mr. Justice Avory. We do not know the exact particulars in Hopwood and in any event, circumstances vary to such a degree that except for any principle that may be involved, it is impossible to determine one case by a reference to the evidence in another.

It may be a difficult question to decide in any particular case whether there is any evidence that an accused has proceeded beyond a mere intention to an actual attempt to commit suicide. In this appeal we are not concerned with that problem nor with the one whether the Crown is bound by the failure of Crown counsel to point out to the trial judge an alleged omission in his charge on a question of law. The real point for determination is whether, after an accused person has been tried on a charge of murder and acquitted, the Crown is entitled to an order for a new trial in order to present an entirely new case against him.

An appeal is given the Crown by the 1930 amendment to section 1013 of the Code “on any ground of appeal which involves a question of law alone.” Assuming, without deciding, that the pertinent question here is one of law, the Crown’s contention is not entitled to prevail.

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While Wexler had on June 28th formed the intention of committing suicide on June 29th, it was never suggested during the whole course of the trial, by cross-examination or otherwise, that the shot that killed Germaine Rochon had been intentionally discharged by the accused at himself with intent to kill himself, or that the death of the girl was caused by an attempt on Wexler’s part to commit suicide. Similarly, the possession by Wexler of the revolver was not relied upon to raise a duty on his part to avoid danger to human life, under section 247; nor was the issue presented as to whether he would, in that event, fall under the terms of subsection 2 of section 252.

The appeal should be allowed and the order granting a new trial set aside.

Crocket J.—I agree that in the circumstances disclosed by the trial record in this case, where the only issue raised by the Crown was as to whether the fatal shot was fired at the deceased intentionally, as claimed by the Crown, or whether the revolver went off accidentally, as claimed by the accused, and that issue was placed squarely before the jury in terms of which the Crown counsel expressly approved, section 1013 (4) of the Criminal Code cannot properly be relied upon to enable the Attorney-General to avail himself of grounds in the Appeal Court, which were never mooted upon the trial, for the purpose of sending the accused back to a new trial on a murder indictment. So far as the offence of murder was concerned, I think the learned trial judge’s direction, having regard to the course of the trial, was unexceptionable, viz., that if the jury believed the accused’s explanation of the shooting to be true, he was entitled to be acquitted of the charge of murder. There can be no doubt that the jury believed the accused’s explanation and acquitted him for that reason. To subject him now, after he had been put in jeopardy, taken the stand in his own behalf and been acquitted on that indictment, to a new trial thereon on the ground that he might have been convicted of manslaughter if the Crown counsel had not failed to put this feature of the case forward on the trial would, it seems to me with all respect, be such a manifest injustice as

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Parliament could not well be deemed to have intended when it enacted this drastic amendment to the Criminal Code.

For these reasons I have concluded that the appeal should be allowed and the verdict of the jury restored.

Appeal allowed.