Regina v. Serne

The prisoners Leon Serne and John Henry Goldfinch were indicted for the murder of a boy, Sjaak Serne, the son of the prisoner Leon Serne, it being alleged that they wilfully set on fire a house and shop, No. 274 Strand, London, by which act the death of the boy had been caused.

It appeared that the prisoner Serne with his wife, two daughters, and two sons were living at the house in question; and that Serne, at the time he was living there, in Midsummer, 1887, was in a state of pecuniary embarrassment, and had put into the premises furniture and others goods of but very little value, which at the time of the fire were not of greater value than £30. It also appeared that previously to the fire the prisoner Serne had ensured the life of the boy Sjaak Serne, who was imbecile, and on the first day of September, 1887, had insured his stock at 274 Strand, for £500, his furniture for £100, and his rent for another £100; and that on the 17th of the same month the premises were burnt down. 

Evidence was given on behalf of the prosecution that fires were seen breaking out in several parts of the premises at the same time, soon after the prisoners had been seen in the shop together, two fires being in the lower part of the house and two above, on the floor whence escape could be made on the roof of the adjoining house, and which part were the prisoners, and the wife , and two daughters of Serne, who escaped. That on the premises were a quantity of tissue transparencies for advertising purposes, which were of a most inflammable character; and that on the site of one of the fires was found a great quantities of these transparencies close to other inflammable materials. That the prisoner Serne, his wife and daughters, were rescued from the roof of the adjoining house, the other prisoner being rescued from a window in the front of the house, but that the boys were burnt to death, the body of the one being found on the floor near the window from which the prisoner Serne, his wife, and daughters had escaped, the body of the other being found at the basement of the premises.

Stephen, J. Gentleman, it is now my duty to direct your attention to the law and the facts into which you have to inquire. The two prisoners are indicted for the wilful murder of the boy Sjaak Serne, a lad of about fourteen years of age; ... The definition of murder is unlawful homicide with malice aforethought, and the words malice aforethought are technical. You must not, therefore, construe them or suppose that they can be construed by ordinary rules of language. The words have to be construed according to a long series of decided cases, which have given them meanings different from those which might be supposed. One of those meanings is, the killing of another person by an act done with an intent to commit a felony. Another meaning is, an act done with the knowledge that the act will probably cause the death of some person. Now it is such an act as the last which is alleged to have been done in this case; and if you think that either or both of these men in the dockkilled this boy, either by an act done with intent to commit a felony, that is to say, the setting of the house on fire in order to cheat the insurance company, or by conduct which to their knowledge was likely to cause death and was therefore eminently dangerous in itself - in either of these cases the prisoners are guilty of wilful murder in the plain meaning of the word.

I will say a word or two upon one part of this definition, because it is capable of being applied very harshly in certain cases, and also because, though I take the law as I find it, I very much doubt whether the definition which I have given, although it is the common definition, is not somewhat too wide. Now when it is said that murder means killing a man by an act done in the commission of a felony, the mere words cover a case like this, that is to say, a case where a man gives another pus with an intention of stealing his watch, and the person so pushed, having a weak heart or some other internal disorder, dies. To take another very old illustration, it was said that if a man shot a fowl with the intent to steal it and accidentally killed a man, he was to be accounted guilty of murder, because the act was done in the commission of a felony. I very much doubt, however, whether that is really the law, or whether the Court for the Consideration of Crown Cases Reserved would hold it to be so.

The present case, however, is not such as I have cited, nor anything like them. In my opinion the definition of the law which makes it murder to kill by an act done in the commission of a felony might and ought to be narrowed, while that part of the law under which the Crown in this case claim to have proved a case of murder is maintained, I think that instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, should be murder. As an illustration of this, suppose that a man, intending to commit a rape upon a woman, but without the least wish to kill her, squeezed her by the throat to overpower her, and in so doing killed her, that would be murder. I think that every one would say in a case like that, that when a person began doing wicked acts for his own base purposes, he risked his own life as well as that of others. That kind of crime does not differ in any serious degree from one committed by using a deadly weapon, such as a bludgeon, a pistol, or a knife. If a man once begins attacking the human body in such a way, he must take the consequences if he goes further than he intended when he began. That I take to be the true meaning of the law in the subject.

In the present case, gentleman, you have a man sleeping in a house with his wife, his two daughters, his two sons, and a servant, and you are asked to believe that this man, with all these people under his protection, deliberately set fire to the houe in three or four different places and thereby burnt two of them to death. It is alleged that he arranged matters in such a way that any person of the most common intelligence must have known perfectly well that he was placing all those people in deadly risk. It appears to me that if that were really done, it matters very little indeed whether the prisoners hoped the people would escape or whether they did not. If a person chose, for some wicked purpose of his own to sink a boat at sea, and thereby caused the deaths of the occupants, it matters nothing whether at the time of committing the act he hoped that the people would be picked up by a passing vessel. He is as much guilty of murder if the people are drowned, as if he had flung every person into the water with his own hand. Therefore, gentlemen, if Serne and Goldfinch set fire to this house when the family were in it, and if the boys were by that act stifled or burnt to death, then the prisoners are as much guilty of murder as if they stabbed the children. I will also add, for my own part, that I think, in so saying, the law of England lays down a rule of broad, plain commonsense. ...

There was a case tried in this court which you will no doubt remember, and which will illustrate my meaning. [A] man named Barrett was charged with causing the death of several persons by an explosion which was intended to release on or two men from custody; and I am sure that no one can say truly that Barrett was not justly hanged. With regard to the facts in the present case, the very horror of the crime, if crime it was, the abomination of it, is a reason for your taking the most extreme care in the case, and for not imputing to the prisoners anything which is not clearly proved. God forbid that I, should, by what I say, produce on your minds, even in the smallest degree any feeling against the prisoners. You must see, gentlemen, that the evidence leaves no reasonable doubt upon your minds; but you will fail in the performance of your duty if, being satisfied with the evidence, you do not convict one or both of the prisoners of wilful murder, and it is wilful murder of which they are accused.

[Verdict, not guilty.]