“In our view the matter was correctly put in Torhamba v. Police (1956) N.R.N.L.R. 87, at p.94- “the lesser offence is a combination of some of the several particulars making up the offence charged: in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged……. When one is considering action under Section 179, one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict……. An authoritative example is furnished by the case of Cooray v. The Queen [1953] 2 W.L.R. 965; [1953] A.C. 407.” While the fact is not conclusive as to the meaning of Section 179 of the Criminal Procedure Act, the interpretation which we have put on it appears to give it the same effect as the Rule at common law. In R. v. O’Brien (1911) 22 Cox c.c. 374, 6 Cr. App. R. 108, the appellant was convicted of assault on an indictment charging that he and certain others “unlawfully, riotously and routously did assemble and gather together to disturb the peace and being so assembled…….. upon A.B…….. unlawfully, riotously and routously did make an assault”. The offence of riot at common law requires a display of force or violence, but that need not necessarily take the form of an assault, just as an attempt unlawfully to kill need not necessarily take the form of an unlawful wounding. In delivering the judgement of the Court of Criminal Appeal, Avory, J., said “We are of the opinion that the proper principle to apply to this case is that which is stated in Archbold’s Criminal Pleading (24th edition) at page 288: ‘But at common law a defendant may be convicted of a less aggravated felony or misdemeanour on an indictment charging a felony or misdemeanour of greater aggravation, provided that the indictment contains words apt to include both offences.’ The indictment in this case certainly contains such apt words, so much so that it is not altogether clear that the charge was not, in effect, a charge of assault with aggravating circumstances. If that was so, the appellant might be convicted of assault, although the Jury might be doubtful as to the aggravating circumstances.”
LawCompass
… the Digital Solution Research Tool
