No.

2 : 1952] Notes on Recent Cases 289

See also Harling v. Eddy [1951] 2 K.B. 739, which his Lordship
brings within the ambit of this case and its predecessors.
K. W. A.

CRIMINAL LAW—ATTEMPTED MURDER—MENS REA

R. v. Whybrow (1951) 35 Cr.App.R. 141 (C.C.A.).

W. was convicted at assizes of the attempted murder of his wife
who complained that he had connected the electricity supply to
the soap dish in the bath and she had in consequence received a
shock. The judge directed the jury : " . . . If you are . . .
satisfied that in doing that he intended to kill his wife or to do
her grievous bodily harm, then he would be guilty of attempted
murder." W. appealed to the Court of Criminal Appeal.
In delivering the judgment of the court, Lord Goddard L.C.J.
admitted that there had been a misdirection of the jury but
upheld the conviction under the proviso to section 4 of the
Criminal Appeal Act, 1907, as no substantial miscarriage of justice
had occurred. He said, " there is no question that there was a
misdirection and the jury should have been told that the essence
of the offence was the intent to murder. . . . "
It has long been thought that, although the requirement of
mens rea in murder is satisfied by any one of the recognised forms
of malice aforethought, in attempted murder it is necessary to show
that the prisoner actually intended to kill. The law was so
expressed by Maule J. in JR. v. Bourdon (1847) 2 Car. & Kir. 366
and by Patteson J. in R. v. Cruse (1838) 8 C. & P. 541. This means
that if a blow is struck with intent to cause grievous bodily harm
but not to kill, if death results the requirement of malice afore-
thought is satisfied and the crime will be murder. But if
death does not ensue the crime cannot be attempted murder
although it may be a wounding with intent to cause grievous
bodily harm or an attempt to commit that offence.
The apparent illogicality is explained by the fact that in the
crime itself it is the actus reus which is prohibited and which is
all important. In the attempt mens rea is the essence and the
actus reus is ancillary and often per se lawful.
This clarification of the law of attempted murder is particu-
larly valuable because attempts to murder are felonies punishable
by a maximum of imprisonment for life whereas most other
attempts are misdemeanours carrying far lighter sentences.
J. P. C.

https://doi.org/10.1017/S0008197300005341 Published online by Cambridge University Press