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Cite as: [1935] UKHL 1, [1935] AC 462

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JISCBAILII_CASE_CRIME

    Die Veneris, 5° Aprilis, 1935

    Parliamentary Archives,
    HL/PO/JU/4/3/918

    Lord
    Chancellor.

    Lord
    Hewart
    (L.C.J.).

    Lord
    Atkin.

    Lord
    Tomlin.

    Lord
    Wright.

    WOOLMINGTON

    v.

    DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of

    His Majesty).

    Lord Chancellor

    MY LORDS,

    The Appellant, Reginald Woolmington, after a trial at the
    Somerset Assizes at Taunton on 23rd January, at which, after an
    absence of one hour and twenty-five minutes, the jury disagreed,
    was convicted at the Bristol Assizes on the 14th February of the
    wilful murder of his wife on 10th December, 1934, and was sentenced
    to death. He appealed to the Court of Criminal Appeal, sub-
    stantially upon the ground that the learned Judge had misdirected
    the jury by telling them that in the circumstances of the case he
    was presumed in law to be guilty of the murder unless he could
    satisfy the jury that his wife's death was due to an accident.

    The appeal came before the Court of Criminal Appeal upon
    the 18th March and was dismissed. The Court said it may be
    " that it would have been better " had the learned Judge who tried
    the case said to the jury that if they entertained reasonable doubt
    whether they could accept his explanation they should either acquit
    him altogether or convict him of manslaughter only; but, relying
    upon Section 4, subsection 1, of the Criminal Appeal Act, 1907,
    which provides " that the Court may, notwithstanding they are of
    " opinion that the point raised in the appeal might be decided in
    " favour of the Appellant, dismiss the appeal if they consider no
    " substantial miscarriage of justice has actually occurred ", they
    dismissed the appeal.

    Thereupon the Attorney-General gave his fiat certifying that
    the appeal of Reginald Woolmington involved a point of law of
    exceptional public importance and that in his opinion it was
    desirable in the public interest that a further appeal should be
    brought. The matter now comes before your Lordships' House.

    The facts are as follows. Reginald Woolmington is 211/2 years
    old. His wife, who was killed, was 171/2 years old last December.
    They had known each other for some time and upon the 25th
    August they were married. Upon the 14th October, she gave birth
    to a child. Shortly after that there appears to have been some
    quarrelling between them and she left him upon the 22nd November
    and went to live with her mother. Woolmington apparently was
    anxious to get her to come back, but she did not come. The
    prosecution proved that at about 9.15 in the morning of the 10th
    Mrs. Daisy Brine was hanging out her washing at the back of her
    house at 25, Newtown, Milborne Port. While she was engaged in
    that occupation, she heard voices from the next door house, No. 24.
    She knew that in that house her niece, Reginald Woolmington's
    wife, was living. She heard and could recognize the voice of
    Reginald Woolmington saying something to the effect " are you
    'going to come back home? She could not hear the answer.
    Then the back door in No. 24 was slammed. She heard a voice in
    the kitchen but could not tell what it said. Then she heard the
    sound of a gun. Upon that she looked out of the front window
    and she saw Reginald Woolmington whose voice she had heard
    just before speaking in the kitchen, go out and get upon his
    bicycle which had been left or was standing against the wall of
    her house, No. 25. She called out to him but lie gave no reply.
    He looked at her hard and then he rode away.

    2 [2]

    According to Reginald Woolmington's own story, having
    brooded over and deliberated upon the position all through the
    night of the 9th of December, he went on the morning of the 10th
    in the usual way to the milking at his employer's farm and while
    milking conceived this idea, that he would take the old gun which
    was in the barn and he would take it up that morning to his wife's
    mother's house where she was living and that he would show her
    that gun and tell her that he was going to commit suicide if she
    did not come back. He would take the gun up for the purpose of
    frightening her into coming- back to him by causing her to think that
    he was going to commit suicide. He finished his milking, went back
    to his father's house, had breakfast and then left, taking with him
    a hack saw. He returned to the farm, went into the barn, got the
    gun which had been used for rook shooting, sawed off the barrels
    of it, then took the only two cartridges which were there and put
    them into the gun. He took the two pieces of the barrel which
    he had sawn off and the hack saw, crossed a field about 60 yards
    wide and dropped them into the brook. Having done that, he
    returned on his bicycle with the gun in his overcoat pocket, to his
    father's house and changed his clothes. Then he got a piece of
    wire flex which he attached to the gun so that he could suspend
    it from his shoulder underneath his coat and so went off to the
    house where his wife was living. He knocked at the door, went
    into the kitchen and asked her " Are you coming back? ' She
    made no answer. She came into the parlour and on his asking her
    whether she would come back she replied she was going into service.
    He then, so he says, threatened he would shoot himself and went
    on to show her the gun and brought it across his waist, when it
    somehow went off and his wife fell down and he went out of the
    house. He told the jury that it was an accident, that it was a
    pure accident; that whilst he was getting the gun from under his
    shoulder and was drawing it across his breast it accidentally went
    off and he was dong nothing unlawful, nothing wrong, and this
    was a pure accident. There was considerable controversy as to
    whether a letter in which he set out his grievances was written
    before or after the above events. But when he was arrested at
    7.30 on the evening of the 10th and charged with having committed
    murder he said : " I want to say nothing, except I done it, and they
    " can do what they like with me. It was jealousy I suppose. Her
    " mother enticed her away from me. I done all I could to get her
    " back. That's all."

    The learned Judge in summing up the case to the jury said :—
    " If you accept his evidence, you will have little doubt
    " that she died in consequence of a gunshot wound which was
    " inflicted by a gun which he had taken to this house, and
    " which was in his hands, or in his possession, at the time
    " that it exploded. If you come to the conclusion that she
    " died in consequence of injuries from the gun which he was
    " carrying, you are put by the law of this country into this
    " position : ' The killing of a human being is homicide, how-
    " ever he may be killed, and all homicide is presumed to be
    " malicious and murder, unless the contrary appears from
    " circumstances of alleviation, excuse, or justification. In
    " every charge of murder, the fact of the killing being first
    " proved, all the circumstances of accident, necessity or
    " infirmity, are to be satisfactorily proved by the prisoner,
    " unless they arise out of the evidence produced against him;
    " for the law will presume that the attack would be founded
    " in malice unless the contrary be shown.' That has been
    " the law of this country for all time since we had law. Once
    " it is shown to a jury that somebody has died through the act
    " of another, that is presumed to be murder, unless the person
    " who has been guilty of the act which causes the death can
    " satisfy a jury that what happened was something less, some-

    [3] 3

    " thing which might be alleviated, something which might be
    " reduced to a charge of manslaughter, or was something
    " which was accidental, or was something which could be
    " justified."
    At the end of his summing up he added :—

    " The Crown has got to satisfy you that this woman,
    " Violet Woolmington, died at the prisoner's hands. They
    " must satisfy you of that beyond any reasonable doubt. If
    " they satisfy you of that, then he has to show that there are
    " circumstances to be found in the evidence which has been
    " given from the witness box in this case which alleviate the
    " crime so that it is only manslaughter or which excuse the
    " homicide altogether by showing that it was a pure accident."

    In the argument before the Court of Criminal Appeal cases
    were cited by the learned Counsel on either side and text-books of
    authority were referred to, but the learned Judges contented them-
    selves with saying " There can be no question to start with that the
    " learned Judge laid down the law applicable to a case of murder
    " in the way in which it is to be found in the old authorities."
    They repeated the learned Judge's words and said 'No doubt
    " there is ample authority for that statement of the law." They
    then relied, as I have already mentioned, upon the proviso
    to Section 4 of the Criminal Appeal Act, 1907, and dismissed the
    appeal.

    It is true as stated by the Court of Appeal that there is
    apparent authority for the law as laid down by the learned Judge.
    But your Lordships' House has had the advantage of a prolonged
    and exhaustive enquiry dealing with the matter in debate from the
    earliest times, an advantage which was not shared by either of the
    Courts below. Indeed your Lordships were referred to legal
    propositions dating as far back as the reign of King Canute
    (994-1035). But I do not think it is necessary for the purpose of
    this opinion to go as far back as that. Rather would I invite your
    Lordships to begin by considering the proposition of law which is
    contained in Foster's Crown Law, written in 1762, and which
    appears to be the foundation for the law as laid down by
    the learned Judge in this case. It must be remembered that Sir
    Michael Foster, although a distinguished Judge, is for this purpose
    to be regarded as a text-book writer, for he did not lay down the
    doctrine in any case before him, but in an article which is described
    as " The Introduction to the discourse of Homicide." In the folio
    edition, published at Oxford at the Clarendon Press in 1762, at
    p. 255, he states :— ' In every charge of murder, the fact of killing

    " being first proved, all the circumstances of accident, necessity or
    " infirmity, are to be satisfactorily proved by the prisoner unless
    " they arise out of the evidence produced against him. For the
    "law presumeth the fact to have been founded in malice until the
    "contrary appeareth, and very right it is that the law should so
    "presume. The defendant in this instance standeth upon just the
    "same foot that every defendant doth. The matters tending to
    "justify, excuse or alleviate must appear in evidence before he
    " can avail himself of them."

    Now the first part of this passage appears in nearly every text-
    book or abridgment which has been since written. To come down
    to modern times, the passage appears in Stephen's Digest of the
    Criminal Law, 7th Edition, at p. 235; also in the well-known
    treatise of Archbold, " Criminal Pleading, Evidence and
    " Practice," which is the companion of lawyers who practise in the
    criminal courts. See 29th Edition, 1934, at p. 873. It also
    appears almost textually in Russell on Crimes, 8th Edition (1923),
    Vol. 1, p. 615, and in the second Edition of Halsbury's Laws of

    4 [4]

    England, Vol. 9, which purports to state the law as on 1st May,
    1933, where it is said at p. 426 :—

    " When it has been proved that one person's death has been
    " caused by another, there is a prima facie presumption of law
    " that the person causing the death is a murderer unless the
    '' contrary appears from the evidence either for the prosecution or
    " for the defence. The onus is upon such person, when accused,
    " to show that his act did not amount to murder." The authority
    for that proposition is given as Foster, p. 255, and also the case of
    R. v. Greenacre, 1837, 8 C. & P. 35. The question arises is that
    statement correct law? Is it correct to say, and does Sir Michael
    Foster mean to lay down, that there may arise in the course of a
    criminal trial a situation at which it is incumbent upon the accused
    to prove his innocence ? To begin with, if that is what Sir Michael
    Foster meant, there is no previous authority for his proposition,
    and I am confirmed in this opinion by the fact that in all the text-
    books no earlier authority is cited for it. Before, however, one
    considers the earlier criminal law several facts have to be
    remembered.

    First, it was not till 1907 that the Court of Criminal Appeal
    was set up. It is perfectly true that from time to time there have
    been famous occasions on which the Judges and Barons were called
    together to give their opinion upon the law bearing on murder.
    Examples of this will be found; in the year 1611, in the case of
    Mackallay, (9 Co. Rep. 65b) all the Judges and Barons were moved
    to give their opinion; in 1706, in the case of R. v. Mawgridge,
    (17 St. Tr. 57) 2nd Ed. of Kelynge's Reports, 1789, which case
    was argued before all the Judges and all of them except Lord
    Chief Justice Trevor were of opinion that Mawgridge was guilty
    of murder; and in 1843 in the case of R. v. Macnaughton,
    (4 St. Tr. N.S. 847) where all the Judges gave answers to your
    Lordships' House upon the test of insanity.

    Macnaughton's case stands by itself. It is the famous pro-
    nouncement on the law bearing on the question of insanity in cases
    of murder. It is quite exceptional and has nothing to do with
    the present circumstances. In Macnaughton's case the onus is
    definitely and exceptionally placed upon the accused to establish
    such a defence. See R. v. Oliver Smith (1910) 6 C.A.R. p. 19, where
    it is stated that the only general rule that can be laid down as
    to the evidence in such a case was that insanity, if relied upon as
    a defence, must be established by the Defendant. But it was
    added that all the Judges had met and resolved that it was not
    proper for the Crown to call evidence of insanity, but that any
    evidence in the possession of the Crown should be placed at the
    disposal of the prisoner's counsel to be used by him if he thought
    fit. See also Archbold, 29th Edition, pages 18 and 874. It is not
    necessary to refer to Macnaughton's case again in this judgment
    for it has nothing to do with it.

    It is true, that at a later period, certain cases were reserved by
    the Judges for the consideration of the Court of Crown Cases
    Reserved, but many of the propositions with regard to criminal
    law are contained either in the summing up of the Judges or in
    text-books of authority as distinguished from a Court sitting in
    banc.

    The learned author of Stephen's Digest of the Criminal Law,
    7th Edition (1926) has an interesting note on the definition of
    murder and manslaughter at page 461. But his remarks are rather
    directed to the ingredients of the crime than to the proof of it.
    None the less, the author does not hesitate to tread a path of very
    robust criticism of the previous authorities. He speaks of the
    " intricacy, confusion and uncertainty of this branch of the law ".
    He refers to the definition of Coke (1552-1623) and says " these
    ' passages, overloaded as Coke's manner is with a quantity of loose,
    ' rambling gossip, form the essence of his account of murder ".

    [5] 5

    He describes Coke's chapter on manslaughter as " bewildering "
    and adds that Hale (1609-1676) treats manslaughter in a manner
    so meagre and yet so confused that no opinion of it can be
    obtained except by reading through chapters 38 to 40 and trying
    to make sense of them, and concludes by saying, p. 466, that Sir
    " Michael Foster to some extent mitigates the barbarous rule laid
    " down by Coke as to intentional personal. violence ".

    Next it must be remembered that prisoners were not entitled
    to be represented by counsel, except in cases of felony where counsel
    might argue the law on their behalf.

    Thirdly it must not be forgotten that the prisoner himself was
    not allowed to give evidence before the Act passed in 1898.

    Bearing these considerations in mind, I now turn to some of
    the cases cited to us. I doubt whether in any of the early ones
    the question of the burden of proof was considered. Rather they
    were concerned with the ingredients of the crime of murder. One
    of the first difficulties was to settle the meaning of express and
    implied malice. It was not till 1826 that Mr. Justice Bayley, in
    Bromage v. Prosser (4 B. and C. 247) gave his famous definition
    of malice as meaning a wrongful act, done intentionally without
    just cause or excuse. The older cases were rather concerned to give
    examples of what might be malice. This was so in Mackallay's
    case (ubi supra). The prisoner was there accused of murdering
    a serjeant of London. The Courts were already considering cases
    of express or implied malice and the passage in Coke appears
    simply to mean that if a man does acts calculated to kill and
    actually does kill that is evidence of malice or intent; in other
    words, evidence of one of the ingredients of murder, but it does
    not seem to be at all concerned with onus of proof or to support
    the statement of Sir Michael Foster on that point.

    One of the most famous of the earlier treatises on criminal law
    was the " History of the Pleas of the Crown " by Sir Matthew
    Hale. That celebrated Judge died on Christmas Day, 1675. It
    was known that he had left a treatise on the subject and upon the
    29th November, 1680, it was ordered by the House of Commons that
    the executors of Sir Matthew Hale be desired to print the manu-
    script relating to Crown Law and a Committee be appointed to
    take care of the printing thereof. It is not said that anything
    appears in Hale suggesting that the burden of proving his innocence
    lay on the prisoner. Looking at the edition of 1800, chapter 37,
    Vol. 1, p. 454, is again concerned with what malice is. It is headed
    ' Concerning murder by malice implied, presumptive or malice in
    ' Law," and Mackallay's case is duly cited.

    As appears from Foster's " Pleas of the Crown," Sir Michael
    Foster was familiar with Hale's treatise (see his preface), and
    although in the course of his book he makes reference to Hale, he
    gives no authority for the proposition which is under discussion.
    It cannot be doubted that at that time in English Courts of justice
    the law of evidence was in a very fluid condition. Indeed in some
    civil cases it differed on different circuits. See Weeks v. Sparke
    (1813) 1 M. & S. 679 and also the note 20, p. 182 in Stephen's
    Digest of the Law of Evidence, 10th Edition, 1922. It was only
    later that the Courts began to discuss such things as presumption
    and onus. In Wigmore on Evidence, Vol. 4, section 2513, note
    page 3562, a reference is made to the judgment of Mr. Justice
    Weaver in the case of the State v. Brady (1a. 91 N.W. 801).
    This was cited in the case of R. v. Stoddart (1909) 2 C.A.R.
    p. 233 :-

    "The use of the terms ' presumption of guilt ' and
    " prima facie evidence of guilt ' with reference to the
    " possession of stolen goods has perhaps been too lone indulged
    " in by Courts and text-writers to be condemned; but we
    " cannot resist the conclusion that, when so employed, these
    " expressions are unfortunate, and often misleading . . .

    6 [6]

    " ' Presumptions ' of guilt and ' prima facie ' cases of guilt
    " in the trial of a party charged with crime, mean no more
    "than that from the proof of certain facts the jury will be
    " warranted in convicting the accused of the offence with
    " which he is charged."

    We were referred to the case of R. v. Legg (Kelynge's Reports,
    p. 27) where it is said, that " at the Newgate Session, in 1674 one
    John Legg being indicted for the murder of Mr. Robert Wise,
    " it was upon the evidence agreed that if one man kill another and
    " no sudden quarrel appeareth, this is murder." Mackallay's
    case is quoted as an authority and the report goes on, " and it
    " lieth upon the party indicted to prove the sudden quarrel."
    With regard to Kelynge's Reports, the critics have greatly differed.
    Sir John Kelynge was Chief Justice of the King's Bench. He
    died in 1671 and whatever opinion may be held about him as a
    Judge, upon which see Foss " The Judges of England ' (1870)
    p. 381, the critics have differed greatly upon the value of his
    Reports. Lord Campbell in his Life of Kelynge, " Lives of the
    Chief Justices " (1849) Vol. I, p. 511, says " He compiled a folio
    " volume of decisions in criminal cases which are of no value
    " whatever." But, on the other hand there are others who
    regard the book as of high authority, see " The Reporters " by
    Wallace, Boston, 1882, p. 327.

    The report of Legg's case is meagre and unsatisfactory and
    cannot, I think, be held to mean that unless the prisoner prove the
    sudden quarrel, he must be convicted of murder. The word
    " onus ' is used indifferently throughout the books, sometimes
    meaning the next move or next step in the process of proving or
    sometimes the conclusion of the whole matter.

    Mawgridge's case, already referred to, was cited to us from
    Kelynge's Reports, but it was not reported by Kelynge for the
    simple reason that it was not tried till 1706. Campbell (ubi
    supra),
    Vol. II, p. 176, says it was reported by Holt and makes
    caustic comments on Holt's English composition. It was added by
    Holt to his Edition of Kelynge s Reports and is described as a case
    of "great expectation " and gives the history of murder trials in
    English Courts from the earliest times. The case, however, is no
    authority for saying that the prisoner at any time is called upon
    to prove his innocence; quite the contrary. It is another of those
    cases which deal with malice and with what is such provocation as
    will make the act of killing to be manslaughter only.

    In Hawkins' "Pleas of the Crown," the 8th Edition, 1824,
    Vol. I, p. 88, section 25, it is stated, " It is also agreed that no one
    ' can excuse the killing another by setting forth in a special
    ' pleading that he did 16 by misadventure or se defendendo, but
    ' that he must plead ' not guilty ' and give the special matter in
    ' evidence." This points to the fact that the verdict must be
    given not on any special pleading given by the prisoner but upon
    and as the result of the whole of the case, and it nowhere suggests
    that the burden of proof either at the beginning or at the end of a
    case is not on the prosecution.

    The case of R. v. Greenacre (1837) (ubi supra), was certainly
    heard by a very distinguished Judge, Chief Justice Tindale. But
    it is to be observed that the dictum relied upon by the prosecution
    in this case, namely, "that where it appears that one person's
    " death has been occasioned by the hand or another it behoves that
    " other to show from evidence" or by inference from the facts of the
    " case that the offence is of a mitigated character and does not
    " amount to the crime of murder," was contained in the summing
    up of the learned Judge to the jury. It is the passage in Sir
    Michael Foster and this summingup which are usually relied on as
    the authority for the proposition that at some particular time of a
    criminal case the burden of proof lies on the prisoner to prove his
    innocence. The presumption of innocence in a criminal case is

    [7] 7

    strong, see Taylor " On Evidence," 11th Edition (1920), Vol. I,
    paragraphs 113 and 114, and it is doubtful whether either of these
    passages means any such thing. Rather do I think they simply
    refer to stages in the trial of a case. All that is meant is that if
    it is proved that the conscious act of the prisoner killed a man and
    nothing else appears in the case, there is evidence upon which the
    jury may, not must, find him guilty of murder. It is difficult to
    conceive so bare and meagre a case, but that does not mean that the
    onus is not still on the prosecution.

    If at any period of a trial it was permissible for the Judge to
    rule that the prosecution had established its case and that the
    onus was shifted on the prisoner to prove that he was not guilty
    and that unless he discharged that onus the prosecution was
    entitled to succeed, it would be enabling the Judge in such a case
    to say that the jury must in law find the prisoner guilty and so
    make the Judge decide the case and not the jury, which is not the
    common law. It would be an entirely different case from those
    exceptional instances of special verdicts where a Judge asks the
    jury to find certain facts and directs them that on such facts the
    prosecution is entitled to succeed. Indeed, a consideration of such
    special verdicts shows that it is not till the end of the evidence that
    a verdict can properly be found and that at the end of the evidence
    it is not for the prisoner to establish his innocence, but for the
    prosecution to establish his guilt. Just as there is evidence on
    behalf of the prosecution so there may be evidence on behalf of
    the prisoner which may cause a doubt as to his guilt. In
    either case, he is entitled to the benefit of the doubt. But while
    the prosecution must prove the guilt of the prisoner, there is no
    such burden laid on the prisoner to prove his innocence and it is
    sufficient for him to raise a doubt as to his guilt; he is not bound to
    satisfy the jury of his innocence.

    This is the real result of the perplexing case of R. v. Abramovitch
    (11 C.A.R. 45) which lays down the same proposition, although
    perhaps in somewhat involved language. Juries are always told
    that if conviction there is to be the prosecution must prove the
    case beyond reasonable doubt. This statement cannot mean that
    in order to be acquitted the prisoner must " satisfy " the jury. This
    is the law as laid down in the Court of Criminal Appeal in R. v.
    Davies (8 C.A.R. 211) the head-note of which correctly states that
    where intent is an ingredient of a crime there is no onus on the
    Defendant to prove that the act alleged was accidental. Through-
    out the web of the English Criminal Law one golden thread is
    always to be seen that it is the duty of the prosecution to prove
    the prisoner's guilt subject to what I have already said as to the
    defence of insanity and subject also to any statutory ex-
    ception. If, at the end of and on the whole of the case,
    there is a reasonable doubt, created by the evidence given by
    either the prosecution or the prisoner, as to whether the prisoner
    killed the deceased with a malicious intention, the prosecution has
    not made out the case and the prisoner is entitled to an acquittal.
    No matter what the charge or where the trial, the principle that
    the prosecution must prove the guilt of the prisoner is part of the
    common law of England and no attempt to whittle it down can be
    entertained. When dealing with a murder case the Crown must
    prove (a) death as the result of a voluntary act of the accused and
    (b) malice of the accused. It may prove malice either expressly
    or by implication. For malice may be implied where death occurs
    as the result of a voluntary act of the accused which is (i) intentional
    and (ii) unprovoked. When evidence of death and malice has been
    given (this is a question for the jury) the accused is entitled to
    show by evidence or by examination of the circumstances adduced
    by the Crown that the act on his part which caused death was
    either unintentional or provoked. If the jury are either satisfied
    with his explanation or, upon a review of all the evidence, are

    8 [8]

    left in reasonable doubt whether, even if his explanation be not
    accepted, the act was unintentional or provoked, the prisoner is
    entitled to be acquitted. It is not the law of England to say, as was
    said in the summing up in the present case, " if the Crown satisfy
    " you that this woman died at the prisoner's hands then he has to
    " show that there are circumstances to be found in the evidence
    " which has been given from the witness box in this case which
    " alleviate the crime so that it is only manslaughter or which excuse
    " the homicide altogether by showing it was a pure accident ".
    If the proposition laid down by Sir Michael Foster or in the
    summing up in R. v. Greenacre, means this, those authorities are
    wrong.

    We were then asked to follow the Court of Criminal Appeal
    and to apply the proviso of Section 4 of the Criminal Appeal Act,
    1907, which says: " the Court may, notwithstanding that they are
    " of opinion that the point raised in the appeal might be decided
    " in favour of the Appellant, dismiss the appeal if they consider
    " no substantial miscarriage of justice has actually occurred ".
    There is no doubt that there is ample jurisdiction to apply that
    proviso in a case of murder. The Act makes no distinction between
    a capital case and any other case, but we think it impossible to
    apply it in the present case. We cannot say that if the jury had
    been properly directed they would have inevitably come to the
    same conclusion.

    In the result we decline to apply the proviso and, as already
    stated, we order that the appeal should be allowed and the
    conviction quashed.


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