F.C. 1898 REGINA V. LUDLOW. bag upon his back; that he asked the prisoner where he was going; that the prisoner immediately dropped the bag and ran away, but was brought back by the witness; that when the witness was looking into the bag the prisoner again ran away, and being pursued by the witness struck the witness on the head with something hard and escaped, but was subsequently, on the 15th January 1898, arrested by the witness and another constable. Constable Vickers said that he was with Constable Maloney on the morning of 25th March 1897, when the prisoner was met with; that he examined the bag dropped by the prisoner and found therein 19 pigeons, and that he later on picked up a clawhammer. The question of the identity of the prisoner was raised at the trial. Hood, J., having been asked to reserve a question for the Full Court as to whether the evidence of the larceny of the 19 pigeons and the claw-hammer was admissible in evidence, refused to do so. This rule nisi was then obtained. Fink for the Crown showed cause-The evidence of Brockwell was properly admitted as showing the prisoner's intent. It is more probable that a man who had committed a crime and had the proceeds of the crime in his possession would, in his attempt to escape, intend to do grievous bodily harm to his pursuer than an innocent man. He referred to Stephen on Evidence (4th ed.), p. 9; R. v. Clewes (a). Fisher for the prisoner moved the rule absolute-Brockwell's evidence went to prove a felony totally distinct in kind and in time from that for which the prisoner was being tried. It was quite irrelevant. The only object with which it was given was to show that the prisoner, having committed one crime, was a person likely to commit another. The charge was a distinct one, and should have been kept free from evidence tending to show the commission of another crime. Such evidence could only (a) [1830] 4 C. & P. 221. have one effect on the minds of the jury, namely, to prejudice their minds against the prisoner. The principle of law is laid down in numerous cases, and any encroachment upon this principle, which alone can insure a fair trial, should be guarded against. The evidence was evidence which would have been properly admissible to convict the prisoner of larceny of these pigeons. Pigeons were stolen, they were found in the prisoner's possession, and as that evidence is clearly admissible upon that charge, it is clearly inadmissible upon any other charge. Counsel referred to the following cases --Makin v. The Att.-Gen. of N.S.W. (b); Reg. v. Miller (c); R. v. Ellis (d); Reg. v. Cobden (e); R. v. Folkes (f); Reg. v. Trueman (g); Reg. v. Dungey (h); Reg. v. Giddens (i); Reg. v. Bleesdale (k); Reg. v. Hinley (l); Reg. v. Ziegert (m); R. v. Rooney (n); R. v. Westwood (o); Reg. v. Oddy (p); R. v. Birdseye (q); Reg. v. Holt (r); Reg. v. Fuidge (8); Reg. v. Butler (t); Reg. v. Gibson (u). MADDEN, C.J. In this case we granted a rule nisi for a mandamus calling upon our brother Hood to reserve a case for this Court. With further time for reflection, and having received further assistance from counsel upon this important principle in the conduct of criminal trials, we think that the evidence which is challenged was properly admitted. A large number of authorities were cited to us to uphold a principle about which there is not the slightest doubt, namely, that where on a trial for one criminal offence evidence is tendered of another and distinct offence from that with which the prisoner is charged, and the evidence of that distinct offence is not essential or relevant to the proof of the offence with which he is charged, the evidence so tendered is not legally admissible and must be (b) [1894] A.C. 57. (c) [1895] 18 Cox C.C. 54. (m) [1867] 10 Cox C.C. 555. F.C. 1898 REGINA v. LUDLOW. F.C. 1898 REGINA v. LUDLOW. Madden, C.J. excluded. Within that rule falls that class of cases where an attempt is made on the trial of a man for one offence to give evidence of another and wholly different offence committed at a wholly different time, with the view of showing that the prisoner, being a man of a particular character, is very likely to have committed the offence with which he is then charged. Evidence of that sort is always excluded, because according to our law the fact that a man has committed one offence is no logical ground for concluding that he will commit another. Unless there is a distinct correlation between the two offences essential to the establishment of the guilt of the prisoner, evidence establishing the earlier offence ought not to be received on a trial for the later, and, if received, may very well be a ground for quashing the conviction. For all that, it must be borne in mind that it may well happen that the whole essential evidence to establish the crime with which the prisoner is charged, may consist of circumstances which establish the committal of another crime by the prisoner. To say that because the evidence which would prove the offence under consideration is connected with the evidence of another offence with which the prisoner is not charged, the prisoner should therefore not be convicted that because by reason of the villainy of the prisoner in doing the acts which made the offence with which he is charged criminal, he has laid himself open to a prosecution for another offence, evidence of these acts should not be received-is absurd. If such were the case, then the greater the villainy of the prisoner, the less chance would there be of his being convicted, because by his villainy he had precluded evidence being given against him. The rule is discussed in Makin v. Att-Gen. for N.S. W. (v). There the Lord Chancellor after alluding to the kind of evidence not admissible, says:"On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the act alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would other(v) [1894] A.C. 57. wise be open to the accused." Now, that is a statement of the principles upon which evidence which in effect would be sufficient to prove another and a different offence might be admissible in order to prove the elements going to make up the offence charged. The question is, whether the evidence here objected to could have that effect. The prisoner was charged with maliciously wounding with intent to do grievous bodily harm. The essence of that offence is the wounding and the intent that the wound should be so grievous as to amount to grievous bodily harm. Therefore the object and the extent of that object which the prisoner had in mind in striking the constable was plainly matter for evidence. A man who is stopped in the street by a mere intruder might knock him down to show his resentment for the undue interference, but it is much more likely that a man whose liberty is at stake, who knows that if he does not escape he will be convicted of an offence, that man has a motive in wounding and disabling the person arresting him. Therefore it becomes a question what is the frame of the man's mind. Was he trying to escape because he thought that the man had no right to interfere with him, or was he afraid that if interfered with and arrested he might be sent to gaol? The jury may consider that, and in order to test that it would be evidence to show that the prisoner had recently robbed a pigeon-house and that he had pigeons in his possession at the time, and that if the pigeons and himself were thus detained he might be convicted. We therefore think that the evidence was admissible as to his intent. It was presented by the Crown and admitted by the Judge in order to meet the possible defences the prisoner might resort to. First, he might have said, “You cannot identify me, but if you do succeed in identification I am only guilty of the lesser offence. I had no motive to do grievous bodily harm." Apparently the jury took that view, because they found him guilty of the lesser offence. We think it would be impossible to say that the evidence was inadmissible; we think it was rightly received. I am inclined to think that the view put forward by my brother A'Beckett during argument may also be a ground for sustaining the conviction. It was said V.L.R., Vol. XXIV. G F.C. 1898 REGINA v. LUDLOW. Madden, C.J. F.C. 1898 REGINA v. LUDLOW. Madden, C.J. that Brockwell's evidence by itself amounted to nothing-it was a mere by-the-way assertion that he had lost 19 pigeons and a claw-hammer. If it rested there it could hurt no one; if the prisoner was identified as the person who stole the pigeons and hammer, then that evidence would be proper to identify him upon the issue of identification as the man who stole the pigeons and assaulted the constable. If not, then Brockwell's evidence would be of no harm and the jury could not convict of unlawfully wounding if such charge was not before them upon such evidence. I prefer to put the ground of my decision upon that which I have previously stated. The case I have referred to, Makin's Case, seems to put the case into the category of cases in which the judgment ought not to be disturbed although evidence legally inadmissible has been admitted. At page 70 the Lord Chancellor says:-" Their Lordships desire to guard themselves against being supposed to determine that the proviso may not be relied on in cases where it is impossible to suppose that the evidence improperly admitted can have had any influence on the verdict of the jury, as, for example, where some merely formal matter, not bearing directly on the guilt or innocence of the accused, has been proved by other than legal evidence." I say that if there was evidence that the prisoner committed a larceny as well, the jury might be disposed to say that, while disregarding the cogent evidence as to Brockwell having lost the pigeons and the prisoner being found with them, “the prisoner having committed that piece of rascality might commit any other piece of rascality, and therefore we will convict him," that evidence would be inadmissible. Still, I am inclined to think that in this case the evidence was really of so little importance that the conviction might be sustained on the other ground also. The rule nisi will be discharged. HOLROYD, J. I desire to add a few words. I agree with Mr. Fisher in his contention that wherever evidence is admitted against a prisoner which is not legally admissible and is left to the jury and they find him guilty, the conviction is bad; but I make this one exception, that the evidence which was left to the jury and which was not legally admissible must have been |