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Colonial Cases

R. v. Mohammed, 1865

 

[murder]

R. v. Mohammed

Supreme Court of China and Japan
17 November 1865
Source: The North-China Herald, 18 November 1865

 

 

H.B.M. SUPREME COURT.

Before Sir EDMUND HORNBY, Chief Justice AND A JURY.

November 17th.

REGINA v.  MOHAMMED.

   Mr. MYBURGH for the prosecution.

   Mr. LAWRANCE was assigned for the defence.

   The prisoner was charged with having, on the 21st of October last, feloniously, wilfully, and of his malice aforethought, murdered one Leemah.

   The substance of the inducement was translated to the prisoner who pleaded Not Guilty.

   Mr. MYBURGH drew the attention of the jury to the fact that they had been empanelled in order to prove whether the prisoner at the bar was or was not guilty of the heinous crime laid to his charge.  It was unnecessary for him, he was convinced, to tell the jury the awful punishment to which the prisoner became liable were their verdict given against him, or to solicit their careful attention to the facts of the case.  He (Mr. M.) was glad that Mr. Lawrance had consented to defend the prisoner, as he was sure that his learned friend would do all in his power for him.

   The prisoner was charged in the indictment with having feloniously, wilfully and of his malice aforethought murdered his wife, or a woman known as such.  There were then two questions for the jury to decide.  Firstly, whether the woman died from the effects of wounds inflicted by the prisoner, secondly, whether those wounds were inflicted through malice, express or implied.  The learned Counsel thought there could be little doubt as to the first point, on account of the clear confession made by the prisoner at the Inquest.  He, however, pleaded that he committed the crime under circumstances of great provocation.  But these circumstances of provocation were so trivial that there could be no sufficient grounds for reducing the charge to that of manslaughter.

   From the prisoner's evidence at the Inquest it appeared that the provocation given by the woman was that she left him without meals, sold his clothing, took away his children and on his remonstrating spat in his face and kicked him.  For this he inflicted upon her, as the medical gentleman who examined the body would prove, seven wounds, and one of which would probably have proved fatal.  His learned friend might also urge that it was dangerous to receive the prisoner's confession as evidence against himself.  Upon this point judges differed considerably, but he (Mr. M.) thought the confession in this case was the best proof of the prisoner's guilt. Not only the act itself had been confessed, but the prisoner also described the attendant circumstances, and taking these circumstances into consideration little doubt could remain in the jury's mind that he was guilty of the crime of murder, although there was no actual proof beyond his own confession.  In summing up His Lordship would lay the law of the case before the jury; his (Mr. M.'s) duty was only to draw attention to facts.

   JOSEPH YORK said:- I am at present runner for the Ghaut Serang.  I know the prisoner at the bar.  I recollect having seen him at about 1.30 p.m. on the 21st of last October, at the door of his house, situated in Bamboo Town, Hongque.  The prisoner was walking about in front of his door.  He spoke to me first.  He told me that he had stabbed his wife.  He told me nothing more.  I thereupon went upstairs to see if it was true.  I saw the woman lying on her face upon the floor, in a pool of blood.  I then went down stairs, seized the man and carried him off to the Ghaut Serang's house.  I saw no weapon of any kind in the room where the woman lay.  Before going up stairs I saw no other person in the vicinity.  The prisoner told me that he had stabbed his wife with a table knife, and when I asked him where the knife was he said that he had thrown it away.  Nothing else passed between us.  I have heard the prisoner say that the woman was his wife.

   To Mr. LAWRANCE: - I have known the prisoner for about two years.  The prisoner has borne a good character hitherto.  I knew the woman for more than a year.  I don't know on what terms the deceased lived with prisoner.  I have heard that she was an inveterate opium-smoker, and I have myself seen her smoke opium.  They had no children.  The prisoner had two adopted Chinese girls whom he had bought.  Their ages were twelve and nine years.  I never heard any dispute between the prisoner and the deceased.

   TO THE JURY: - The prisoner made no resistance when I took him.  Ever since I have known the deceased she was an inveterate opium-smoker.  I did not see a spot of blood on the prisoner's clothes or hands.  Ghaut Serang is a Malay.

   BACHO, sworn on the Koran, said: - I am a lascar.  I know the prisoner at the bar.  I recollect having seen him on the 21st of October, at the entrance of his house in Bamboo Town.  York was with the prisoner.  York called me and said, in the hearing of the prisoner, that the prisoner had told him that he had stabbed his wife.  York was holding the prisoner's hands. I ran towards the Ghaut Serang's house to call him. I returned with the Ghaut Serang to the prisoner's house.  The Ghaut Serang entered the house, but I did not.  I did not go into the prisoner's house at all that day.

   To Mr. LAWRANCE:- When I was lascar on board the Nanzing, the prisoner was Serang over me.  We were together for six months in the same vessel, and never had a disagreement.  Her always kept his crew well together and treated them kindly.  He was a quiet, good tempered man.  I have heard of and seen the woman smoking opium, and know that when prisoner was at sea, she used to go with other men.  I have known the woman since sailing with the Serang.  I know of no quarrels having taken place between the prisoner and his wife.  While York was holding the prisoner the latter seemed excited and repeatedly said, "I have stabbed my wife; I have stabbed my wife."  I saw him make no resistance.  I did not go up stairs.  I saw blood on the prisoner's right hand.

   TO THE JURY: - I can't judge of age; I don't know my own age.  The woman was a Malay-woman, and older than the prisoner.

   ABDUL GANNIE, sworn on the Koran, said: - I am a Serang.  I know the prisoner at the bar, I saw him on the 21st of last October, seated at the entrance of his house in Bamboo Town.  He was alone.  I spoke to him first.  He told me that he had stabbed his wife, on my asking why he sat down there.  I know York, when I was speaking to the prisoner, York was in the house.  He shortly came down and seized the prisoner.  I went off to call the Ghaut Serang.  When I went a little way I saw the Ghaut Serang coming.  I returned with him and entered the house.  I saw thee woman lying on her face in a pool of blood.  I knew the woman.  She was the prisoner's wife.  Her name was Leemah.

   To Mr. LAWRANCE: - I knew her for about three years.  During that time she and the prisoner had been living together.  They lived on very fair terms.  I know that when the prisoner went to sea she used to go with other men.  The prisoner was not aware of this at first, but lately heard people talk of her as an opium-smoker and a prostitute.  I have known the prisoner to come back from sea and give all his money to her.  She spent it all and then told him to go to sea again.  I know the prisoner's children were adopted.  I know that they were taken away and hid by the woman about three evenings before her death.  I have known the prisoner for upwards of five years.  I have found him to be a quiet, inoffensive man.  I have known him as Serang and Serang's mate.  I have sailed in the same vessel with him, but have often met him at different ports in China and Japan, when he was Serang of one British vessel and I was Serang of another.

   CASSIM, the Ghant Serang, sworn on the Koran, said: - I know the prisoner at the bar.  I recollect the 21st of October last.  I was called on that day by Bacho and Gannie to go to the prisoner's house.  I went to Mohammed's house and found that York had taken him round to my house.  I did not go into the prisoner's house at first, but returned to my own place where I found the prisoner.  He said that he had stabbed his wife.  My clerk took him to the police station.  I went back to the prisoner's house.  I saw the woman lying stabbed on the floor.  In a few minutes after a Police Inspector came in.  The woman was the prisoner's wife.  I knew her.  Her name was Leemah.  The body was warm when I was there.

   To Mr. LAWRANCE: - I have known the prisoner for nine years.  I always found him a quiet and temperate man.  I knew the deceased for four years.  The woman has told me that she pawned the prisoner's clothes when in want of opium.  Three days before the prisoner stabbed the woman, he complained to me that he could not get his clothes from her.  A say or two before the woman's death I was at his house and the children were not there.  The prisoner was very fond of the two children.  I never heard him complain of their being taken away.  I don't know of Leemah having committed adultery with other men.  The prisoner did not complain to me about this.  The prisoner is a native of Penang.  I have sailed with him in two vessels.

   TO THE JURY: - I saw no blood on the person of the prisoner.  When the prisoner was taken he kept his hands folded and spoke quietly.

   Dr. JOHNSTON said: - I am a Doctor of Medicine practising in Shanghai.  On trhe 21st of last October I was requested to examine the body of a Malay-woman in Hongque.  I found the body of a woman in a lifeless state in a pool of blood on the floor of the upper room of a small house in Bamboo Town.  She had a few garments on.  On examination I found seven stabs in different parts of the body.

   Two had penetrated into the left kidney from behind, two into the spleen, two into the base of the left lung and one into the substance of the liver.  I think any one of the wounds would probably have led to a fatal issue.  I should think they were inflicted by a small knife, the blade probably four inches in length and about half an inch in width.  It must have been sharp and pointed.  There could have been no resistance after the first stab, she must then have fallen on her face.

   To Mr. LAWRANCE: - I have seen the prisoner.  I treated him as a patient when in jail, for irritation of the left eye, occasioned by a wound received some time ago.  I had no communication with him previously.  I have not seen the instrument with which the woman was killed.  The body was quite lifeless.  She had evidently been recently killed.

   TO THE JURY: - I think it quite possible but not probable that a man might have inflicted all those wounds without becoming stained with blood.

   TO THE COURT: - Clothes might have prevented the blood from bursting out but the woman's clothes were of a very light fabric.

   MR. MYBURGH then put in the prisoner's statement at the coroner's inquest, made after he had been duly warned by the coroner.

   Mr. STRIPLING said: - I am Inspector of Police.  On the 21st of last October I was called to the prisoner's house in Bamboo Town where the woman was stabbed.  I saw the body of a woman there, lying on the upper floor.  I know Dr. Johnston.  I was present when he made an inspection of the body.

   To Mr. LAWRANCE: - I do not know the prisoner.

   TO THE COURT: - The prisoner was not unfavourably known to me.  There were no marks of blood about the prisoner.

   This closed the case for the crown.

   Mr. LAWRANCE said that the importance attached to this case could not be over-estimated. It was the first time that a case of life and death had been tried before an English Court in Shanghai, and he would ask the jury to give the matter serious thought before arriving at a decision.

   The crime of which the prisoner was accused was terrible, one at which human nature starts and than which there is none more penal; the punishment on conviction being death of the most ignominious kind.  He (Mr. L.) hoped that the jury would reduce the charge of willful murder to that of manslaughter.  The two questions which he would submit were: Firstly, was the prisoner's the hand which committed the crime? and, secondly, was that crime committed under such circumstances as were alleged?  They had to determine whether it was a case of murder, with malice, or manslaughter without malice. Now there are certain circumstances which change the charge of murder to that of manslaughter and vice versa. If the crime be committed after sufficient cooling time for the passions had elapsed, it is considered as murder, if perpetrated immediately after sudden provocation it is looked upon by the Law as manslaughter. 

   With regard to the first question the evidence seem clearly to prove that the prisoner's was the hand which committed the deed; the question then remained, did he receive sufficient provocation for committing the act of which he stood charged.  All the Indian witnesses fort the prosecution had testified to the provocation he had received, and the good character given by them of the prisoner should also be taken into consideration.  The first witness, York, knew him for about two years and during that time found him quiet and inoffensive.  Bacho, the second witness, knew him for six years on board the Nanzing, and stated that had the prisoner treated him otherwise than well and kindly in his capacity of Serang, he would not have remained with him for so long a time.  Abdul Gannie knew him for nine years, and also gave him an equally good character.  This witness confirmed the statement as to the prisoner's children having been hidden by the woman about three evenings before her death and testified to the fact of the deceased having gone with other men during the prisoner's absence.  The latter, hearing of this was naturally provoked.  Lastly the Ghaut Serang, a man holding a respectable position and whose testimony ought to have some weight with the jury, gave the same character of the prisoner, whom he had known for nine years.  He confirmed generally the statements made by the prisoner at the Inquest, as to his position shortly before the murder was committed.

   It should also be remembered that the man belonged to a nation accustomed to look with equal jealousy as and more passion than ourselves upon certain acts.  He (Mr. L.)  did not mean to say that the woman's conduct could justify her death at the hands of the prisoner, but still it should be taken into consideration by the jury in forming a decision.  It was evident that the two did not live happily together; she led a life of prostitution and did not perform those duties which by Malays are considered incumbent upon the wife, although by us they would be considered too menial. The speaker then quoted Roscoe on Criminal Evidence, to define the distinction between a crime committed with or without malice.  He thought that the collateral circumstances, already alluded to, attending the occurrence should be borne in mind, and he (Mr. L.) held that the act must come undetr Roscoe's definition - "Suspension of reason until the very timer when the mortal stroke wass given."  In conclusion he would ask the jury, after giving the case a fair and impartial hearing, to give an equally fair and impartial verdict.

   Mr. KELLY said: - I have shipped the prisoner on board of different vessels for three years.  The masters of those vessels have always given him a good character.  He had always managed the crews well.  He was recently in the Nanzing but was discharged on account of his failing eyesight.  If he had been violent or passionate it would have been reported to me either by the masters of crews of vessels in which he served.

   THE CHIEF JUSTICE, in summing up the case for the jury, said that neither of the Counsel whom they had just heard had exaggerated the importance of the issue they were to try.  In all cases of homicide the responsibility of a jury is of the most painful nature because on the verdict depends the life of a fellow-creature.  Still there is a duty which society demands, and an obligation enforced by the oath taken to weight the evidence impartially.  I premise there remarks more specially as this is the first case of murder brought before the Court.

   The position of the prisoner at the bar is most dreadful, standing as he does between life and death, accused of the most heinous crime whereof the Law takes cognisance.  It is necessary to go back a little and consider that on the 21st October, in an upper room in a house in Bamboo Street, there was a living woman.  That woman is now dead, and it is for you (the Jury) to decide by whose hand she died, who inflicted those mortal wounds, and took upon himself to hurry her into the presence of her Maker utterly unprepared.  I ask you to consider these points carefully in order that you may recollect that your sympathies ought not exclusively to run in favor or the person before you.  There was another being whom you have not seen for whom the same consideration is due, and therefore you must not allow your feelings to clash with the duty imposed on you.

   Now what are the circumstances upon which the guilt or innocence of the prisoner depends?  They are painful from their extreme simplicity.  York, the first witness, said that he saw the prisoner sitting at the door of his house, and on asking him what he was doing there, he said he had stabbed his wife.  The prisoner does not appear to have been excited, and in this all the witnesses agree.  The second witness saw two men standing at the door, one the prisoner and the other York.  York told him that the prisoner had said he had stabbed his wife; the third witness gave the same testimony.  There is no doubt that the murdered woman was the wife of the prisoner or passed as such, that she was the person alluded to by the prisoner, and that she had received the wounds that caused her death.

   The learned counsel fort the defence has informed you of the difference between the law of murder and of manslaughter.  But I cannot allow the statement of the law to go before you exactly as he left it.  Provocation may in some cases convert homicide into justifiable or excusable homicide, but of there be no sufficient provocation, homicide is murder. (The learned Judger then cited Roscoe to prove the distinction between murder and manslaughter, laying considerable stress on the fact that the prisoner by using a deadly weapon had shown how completely carried away by passion he was.  This then is the English law on the subject, and you must apply thr law so laid down to the circumstances.

   The first question for you to consider is the nature of the provocation, if any, and of this you must be satisfied before you will be justified in bringing in a verdict of manslaughter.  I do not wish, however, to tell you what to do, the responsibility rests on you and not on me.  Are you of opinion that by the prisoner's hand the deceased met her death?  The evidence on this point is most conclusive.  Irrespective of the testimony of the witnesses, there is the prisoner's own confession.  Some people think the confession of a prisoner is of little importance, that under certain circumstances it is dictated by a desire to obtain notoriety or by some other motive of the kind.  My experience of crime does not lead me to any such conclusion, and in this particular case no reasonable doubt exists that the prisoner it was who caused the woman's death. The absence of blood on the prisoner's clothes is of little importance, in the face of Dr. Johnston's evidence, although one witness said that he did see blood on the prisoner's right hand.

   The next question before you arrive at a verdict is what the provocation was, and how far it excused the act.  That I leave entirely to you.  Recollect the mutual relation of the man and woman; recollect the evidence as to the abandoned life led by the deceased, her refusal to give him his children, her selling of his clothes, her spitting in hjis face.  In your minds is that sufficient - not to justify the act of homicide but - to convert the murder into manslaughter?  Perhaps I shall not be exceeding my duty if I express my own opinion.  As to the selling of the prisoner's clothes, it would be most unfortunate for society if such a provocation as that were held to justify homicide.  When his children were taken from him he might have applied to the Court for redress.  Spitting on him, licking him and the other outrages committed by the deceased, are not individually sufficient to excuse the act, but it is for you to judge whether altogether they mitigate the crime.

   You possess, however, another right of which I would remind you. It is quite competent for you to recommend the prisoner to mercy.  I do not advise you to do so, for society should not be exposed to the consequences of a man losing his temper and surrendering himself to the dominion of his passions, until he is so overcome as to lose all power of regulating his actions, and satisfies the ferocity of his nature by rushing on his wife and destroying her.  The evidence proves conclusively that the wounds were inflicted with the greatest violence, and under the influence of ungovernable rage.

   I do not wish to sum up against the prisoner, but the duty of a Judge is most serious.  He lays the law of the case before the jury, but it is for the latter to decide on the facts.  If in your opinion the prisoner is guilty of murder, your verdict must ne to that effect, but if on the contrary you think the provocation sufficient to convert murder into manslaughter, it will be your duty to bring in a verdict of that nature.

   The jury retired for about forty minutes, and on their return the foreman announced that they had found a verdict of Guilty, but strongly recommended the prisoner to mercy in consideration of the very great provocation he had received.  The prisoner, having been asked whether he had anything to say why sentence of death should not be passed upon him, threw himself on the mercy of the Court, merely again detailing the great provocation he had suffered.  The Chief Justice then assumed the black cap and passed sentence of death in the usual form, stating that he would forward the recommendation of the jury to Her Majesty's Minister for his consideration, and intimating that it was possible he might regard it favorably inasmuch as this was the first case of the kind brought before the Court.

   The sentence having been interpreted the prisoner was removed and the Jury discharged.

 

Source: The North-China Herald, 10 February 1866

RETROSPECT OF EVENTS IN THE NORTH OF CHINA DURING [1865]

The 4th of September, 1865, was remarkable as the day upon which the newly established Supreme Court for China and Japan was opened.  With its constitution all are familiar, and we need therefore do no more than call attention to the more important cases which have come before it. ...

Three serious criminal cases have occupied the attention of the Court.  ... Two cases of murder have also been tried.  In the first, "Regina versus Mahommed, murder of Leemah (prisoner's wife,) the accused was found guilty, and sentenced to death.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School