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*21 Georges Codere Court of Criminal Appeal 28 February 1916 (1917) 12 Cr. App. R. 21 Lord Chief Justice , Mr. Justice A. T. Lawrence , and Mr. Justice Atkin February 28, 1916 The words the nature and quality of the act in the second and third answers of the judges to the House of Lords in M'Naghten's Case (10 Cl. & Fin. at p. 210: 1843) refer only to the physical character of the act in question, and are not meant to distinguish between its physical and moral aspects. Some of the rules in that case discussed. This was an application for leave to appeal against conviction. Appellant was convicted on the 5th February, 1916, at the Winchester Assizes, before Darling J., of murder, and was sentenced to death. Foote, K.C. (with him Bromley Eames ) for the appellant, who was present. The appellant, who is a lieutenant in the 41st Regiment of Canadian Infantry, was convicted of the murder of Sergeant Ozanne, of the 9th Canadian Mounted Rifles, and his appeal is only that the Court should, under s. 5 (4) of the Criminal Appeal Act , quash the sentence and order that he should be kept in custody as a criminal lunatic. Insanity was the only defence raised at the trial. The appellant's regiment was in November, 1915, quartered at Bramshot, and on the 3rd December the deceased's regiment arrived there; officers of the two regiments met, and there was a conversation with reference to changing Canadian money; the appellant offered to negotiate the exchange. On the following day the appellant received from Ozanne about $1,500 in Canadian money to exchange. On the same morning he went to a local bank and cashed cheques for 60 and 90 on a London bank at which he had an account, but the amount to his credit there at the *22 time was only 5 or 6; it was agreed that he would give the local bank the business of changing the Canadian money. The next day, which was a Sunday, the appellant went to London with Lieut. Morin, an officer in the same regiment, and told him that he was going to kill a man, and offered him money if he would help. Morin answered, Sure, of course, because he considered the appellant, who was known in the regiment as Fou Codre, as not responsible; he told him to stop fooling. The appellant told him that he was going to wrap the deceased man in a blanket, and was going to arrange with Sergeant Martin for the burial. On the Monday the appellant changed the Canadian notes for 282 at Cook's office. In the evening he met Sergeant Martin, of the same regiment, told him he was going to make a man disappear, and asked his assistance, for which he offered him 50. He wished Martin at an arranged signal to knock the man on the head with a cravache, an officer's weighted trench stick. Martin said, Would it not be better not to shed blood, but to try poison? The appellant said, What poison? and Martin said Serum anti-tuberculin, and at the appellant's request wrote the name in his pocket-book. The appellant tried without success to obtain this at one chemist's the next morning, and did obtain something from another chemist. He returned to the camp, and under compulsion paid 150 to the bank.

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He met Martin, shewed him a bottle of stuff, and asked if it was enough; Martin said it was enough to kill a whole regiment. His view really was that it could be drunk with impunity, and it is evident that he thought he was humouring a lunatic. On the Wednesday, at 4 p.m., the appellant drove with a non-commissioned officer, who was no doubt the deceased, to Arundel House, a house about two miles off, at which the colonel and the major of the regiment lived, and at which the appellant had the use of a room. He got some whiskey from the kitchen, and was seen to put some white stuff into it; he went with it into the smoking-room where the murder was committed. He told the two servants, Keller and Desjardins, that he had killed a man. Keller, who was a heavy, stupid young man, helped the appellant to clean up the blood in the smoking-room and passage, and to put the body, wrapped in a blanket, in the stable. Desjardins said he thought he was going to faint, and left the house. At 5.30 the colonel and major returned; the *23 major's suspicions were aroused by Keller's state of excitement, but he assumed he had been drinking; the appellant exhibited no emotion. The three officers dined together, waited on by Keller; he said that as long as the appellant was in the house he was afraid to say anything, and it was only the next morning, when it was found that he had not slept in the house, that information was given to the colonel and major, and steps taken to arrest the appellant. In the meantime the appellant went to see Martin, told him that he had done it, and asked him to get a box to fetch something away in. Martin said he would do it the next morning, and he did in fact then get a very large packing case. He said that he did not believe there was a dead body, but he felt bound to obey his superior officer. Keller was arrested on the 9th December, and on the 11th the appellant wrote a letter which he desired should be given to Keller, in which he said, The thing has been discovered, and someone saw you strike him . As you have been seen to strike him it is no use to put the thing on me, because I shall not be able to help you if you put me in a hole. While I was upstairs scuffling commenced; having struck you, you struck him in revenge. The only thing to do is to write a confession on paper, and that Licut. Codere had nothing to do with it . Don't forget to say that all you said before was false, and that it was to defend yourself. This letter was strongly relied on by the prosecution, and no doubt the appellant knew that what he had done was punishable, but the letter is so abnormal that it tells at least as much in his favour on this issue as against him. The appellant had held a commission in the Canadian militia for two years before the war; he had come to England with the first contingent, but had been sent back to Canada for some reason unknown. Evidence was given that he was quite abnormal mentally, and was not regard as being responsible for his actions; that he could not carry on a sustained conversation. The major said that he never intended to take him to France, as he was unable to handle men from the moral or mental point of view. The extreme ferocity of the murder was another indication of his mental state; the deceased's head had been smashed, his throat cut nearly to the spine, and forty-five cuts inflicted on the face. The judge said that this was to avoid identification, but the deceased *24 was wearing uniform which indicated his rank and regiment, and if a sergeant of that regiment were missing that would be sufficient identification. Not only did the appellant shew no emotion at dinner, or when speaking to Martin, but evidence was given that he slept soundly on the night of the murder. Evidence was also given that his

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father's sister had been insane, and that several cousins on his mother's side had also been insane; that he had been sent away from an agricultural college in Canada as he was not thought to be compos mentis . Dr. Stoddart, who had three interviews with him before trial, found him boastful and subject to delusions, and came to the conclusion that he was not of sound mind, but Dr. Craig, who was called for the prosecution, said that, although he could not class him as an absolutely normal person, he thought he knew the difference between a right and wrong act, and could not be certified as insane. It is conceded that the prisoner must have known that the act he committed was punishable by law, but this is not enough to shew that he was sane. The rules in M'Naghten's case, 4 St. Tr. N. S. 847; 10 Cl. & F. 200; 1 C. & K. 130; 8 Eng. R. 718; 8 Scott, N. R. 595 (1843) , lay down (Cl. & F. 210) that to establish a defence on the ground of insanity, it must be proved that the accused did not know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. Nature of the act refers to its physical aspect; quality to its moral aspect. It may be that quality refers to its criminal or non-criminal nature; but it is impossible to understand the word wrong in that sense. The answer of the judges in M'Naghten's case, just cited, goes on to say, If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable. The words an act which he ought not to do are here used as a paraphrase for, an act which is wrong; and the whole sentence therefore demonstrates that wrong and punishable by or contrary to law are not synonymous, but express two different things (see Stephen, Hist. Cr. Law, ii. p. 163). The meaning of the word wrong was not, it is submitted, explained to the jury; and this Court need not, therefore, be oppressed by their finding. The same may be said of the words know and quality. Know must mean, or include, the *25 power of forming a rational judgment on the quality of his act. To say that a man knows the quality of his act, and knows that it is wrong, simply because he knows that the law will punish him for doing it, is to ignore the effect of the answers in M'Naghten's case, taken as a whole. [The Lord Chief Justice : By what standard do you suggest that the accused should be regarded as judging whether his act was wrong ?] Probably by the standard which he believes is that of the majority of reasonable men. I do not mean his own standard; and if I have made that suggestion, I withdraw it. I mean that it would probably be sufficient to render him punishable, if he knewthat is, understood and appreciatedthat the act would be condemned and regarded as wrong by his fellow-creatures. Having regard to the evidence in this case, which shews that the prisoner openly declared his intention of committing the act to Lieut. Morin and Sergt. Martin, apparently without considering it possible that they would interfere or even disapprove, it is manifest that he did not know he was going to do wrong in the sense suggested. The prisoner's conduct after the murder, as narrated by the witnesses Keller, Desjardins, and Martin, points to the same conclusion. Whether or not a criminal is insane in the sense suggested, is entirely a question of degree; and it may be that the question for the jury, or for this Court, is in fact whether he is so sane that it is right to carry out the capital sentence. If the criminal is incapable of reasonably understanding the heinousness of his act, he

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does not know that the act is wrong, in the true sense of those words. Clavell Salter, K.C. , and S. H. Emanuel , for the Crown, were not called upon. The Lord Chief Justice: The appellant was convicted of the wilful murder of Sergeant Ozanne, and his application to this Court is for leave to appeal against his conviction, which, following the usual practice, has been treated as a final appeal. There is no doubt that the appellant did kill Ozanne; that was not in dispute at the trial. The facts, so far as it is necessary to *26 recapitulate them after the analysis laid before us by Mr. Foote, may be briefly stated. The appellant was a lieutenant in the Canadian militia for eighteen months or two years before the war. After the war broke out he came to this country with the Canadian contingent as lieutenant, and in December last his regiment was quartered at Bramshot camp; the appellant was living in a house with the colonel and major of the regiment. On the 3rd December he seems to have induced the bank to cash two cheques for 60 and 90 on the promise that he would bring Canadian currency there to be changed into English money. About that time, at what precise moment is not clear, it appears that Ozanne was in possession of Canadian notes of the value of about $1,500, and discussed the question of changing them at mess, when the appellant was present. Having got the two cheques cashed without having money sufficient to meet them, the appellant was bound to find money to put his account in funds. Ozanne appears to have been taken by him to Arundel House, and there beyond all question to have been put to death by him. It is said that the evidence shows that the appellant was not a person who ought to be convicted of murder, but that the right verdict should have been that he was guilty of the act charged, but was insane so as not to be responsible according to law for his actions at the time. Mr. Foote has addressed an argument to us based on M'Naghten's case, which is the classic authority on the subject, which in substance resolved itself into this, that we must assume that when the law says that the question is whether the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, we must read nature to have reference to the physical act, and quality to refer to the morality of the act, and that therefore the jury should be asked if he knew he was doing wrong. The argument advanced is that the judge ought to tell the jury that quality means, Did the accused person know that the act was immoral? and when one stops and asks the meaning of immoral we get to the first of the difficulties which faced Mr. Foote. It is said that quality is to be regarded as characterising the moral, as contrasted with the physical, aspect of the deed. The Court cannot agree with that view of the meaning of the *27 words nature and quality. The Court is of opinion that in using the language nature and quality the judges were only dealing with the physical character of the act, and were not intending to distinguish between the physical and moral aspects of the act. That is the law as it has been laid down by judges in, many directions to juries, and as the Court understands it to be at the present time. We then come to the second branch of the test, namely, if he knew the physical nature of the act did he know that he was doing wrong? Mr. Foote

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has argued that it is not enough that he knew the act was contrary to law and punishable by law, and that, even if he did know that when killing Ozanne, yet the jury ought to have been told that they must find a special verdict under the Trial of Lunatics Act, 1883, s. 2(1) , unless they came to the conclusion that he knew that the act was morally wrong. The question of the distinction between morally and legally wrong opens wide doors. In a case of this kind, namely, killing, it does not seem debateable that the appellant could have thought that the act was not morally wrong, judged by the ordinary standards, when the act is punishable by law, and is known by him to be punishable by law. It was suggested at one time in the course of the argument that the question should be judged by the standard of the accused, but it is obvious that this proposition is wholly untenable, and would tend to excuse crimes without number, and to weaken the law to an alarming degree. It is conceded now that the standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was right or wrong. There may be cases where it is difficult to decide that question, but that is not the case here. The judges in M'Naghten's case, in answering the second and third questions put to them, said, If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong. That is the accepted test, and applying it in this case there can be no room for doubt; once it is clear that the appellant knew that the act was wrong in law, then he was doing an act which he was conscious he ought not to do, and as it was against the law, it was *28 punishable by law; assuming, therefore, that he knew the nature and quality of the act, he was guilty of murder, and was properly convicted. The difficulty no doubt arises over the words conscious that the act was one which he ought not to do, but, looking at all the answers in M'Naghten's case, it seems that if it is punishable by law it is an act which he ought not to do, and that is the meaning in which the phrase is used in that case. There may be minor cases before a court of summary jurisdiction where that view may be open to doubt, but in cases such as these the true view is what we have just said. In approaching the facts it is right to say that undoubtedly on the evidence the appellant is possessed of a mind of very inferior quality. He was always known as being abnormal mentally; he was called in Quebec and in the regiment Le fou Codre. Instances were given and statements made in evidence that shew, both from his own want of mental capacity and from his family history, that he cannot be regarded as an ordinary person. On the other hand, evidence was given to shew that he knew quite enough to know the nature and quality of the act, namely, that he was killing a man in order to retain money which it was his duty to hand over to the deceased and which he was not in a position to hand over, at any rate without putting himself in a very serious position. If Ozanne was out of the way, it might appear that he had run away with the money, and unless the crime could be brought home to the appellant it might never have been proved that he had

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the money. Then he takes Ozanne to the house and kills him, tries to conceal the fact that he is killed, and actually gets the two men to help him to conceal the body. It is true he had spoken to other men in a way which shewed that he viewed very lightly the purpose which he had formed. All of these facts shew that there was evidence which it was proper to leave to the jury that he was conscious of the act he was doing within the rules in M'Naghten's case. It was open to the jury to find that he did know, although he was a person of this peculiar type of mind. We are asked on the evidence, and on a summing up which we think was unobjectionable, to say that the verdict was wrong, and that the appellant is insane. We have come to the conclusion that we ought not on this evidence to enter such a verdict. But we think it is a case in which, if in *29 his discretion the Home Secretary thinks it right to make further investigations, he has opportunities of enquiring into matters which are not before us. Nothing that has been said here is intended to prejudice any view which the Home Secretary may form, but the application to this Court must be dismissed. Application dismissed .