Note 25 — CHAP. VII.

The following law case, which is literally translated, from a volume of reports of trials, published in the present reign of Kia-King, and with which I have been favoured by a friend (who was himself the translator), will serve to shew the mode of proceeding in criminal matters of the provincial courts of judicature. The circumstances of the transaction appear to have been enquired into fairly and impartially, and no pains spared to ascertain the exact degree of criminality. Being given to me about the time when the trial took place of Smith, for the murder of the supposed Hammersmith ghost, I was forcibly struck with the remarkable coincidence of the two cases, and with the almost identical defence set up by the Chinese and the English prisoners, and on that account it excited more interest than perhaps it might otherwise be considered to be entitled to.

Translation of an Extract from a Collection of Chinese Law Reports, being the Trial, Appeal, and Sentence upon an Indictment for Homicide by Gun firing.

At a criminal court held in the province of Fo-kien, upon an indictment for shooting, and mortally wounding a relation; setting forth, that She-fo-pao, native of the city of Fo-ngan-sien, did fire a gun, and by mischance, wound Vang-yung-man, so that he died thereof.

The case was originally reported, as follows, by Vu-se-Kung, sub-viceroy of the province of Fo-kien:

The accused She-fo-pao, and the deceased Vang-yung-man, were of different families, but connected by marriage, were well known to each other, and there had always been a good understanding between them.

In the course of the first moon, of the 25th year of Kien-long, She-fo-pao cultivated a farm on the brow of a hill belonging to Chin-se-kien, and which lay in the vicinity of certain lands cultivated by Vang-yung-man and Vang-ky-hao, inasmuch as that the fields of Vang-yung-man lay on the left of those of She-fo-pao, which were in the center, and those of Vang-ky-hao on the right side of the declivity of the hill. It occurred that on the 7th day of the 9th moon of the same year, She-fo-pao observing the corn in his fields to be nearly ripe, was apprehensive that thieves might find an opportunity of stealing the grain; and being aware, at the same time, of the danger which existed on those hills from wolves and tygers, armed himself with a musquet, and went that night alone to the spot, in order to watch the corn, and seated himself in a convenient place on the side of the hill. It happened that Vang-ky-hao went that day to the house of Vang-yung-man, in order that they might go together to keep watch over the corn in their respective fields. However Vang-yung-tong the elder brother of Vang-yung-man, conceiving it to be yet early, detained them to drink tea, and smoke tobacco until the second watch[26] of the night, when they parted from him, and proceeded on their expedition, provided with large sticks for defence.

Vang-ky-hao having occasion to stop for a short time upon the road, the other Vang-yung-man went on before, until he reached the boundary of the fields watched by She-fo-pao.

She-fo-pao, on hearing a rustling noise among the corn, and perceiving the shadow of a person through the obscurity of the night, immediately hailed him, but the wind blowing very fresh, he did not hear any reply. She-fo-pao then took alarm, on the suspicion that the sound proceeded from thieves, or else from wild beasts, and lighting the match-lock, which he held in his hand, fired it off, in order to repel the invaders whoever they might be.

Vang-yung-man was wounded by the shot in the head, cheeks, neck, and shoulder, and instantly fell to the ground. Vang-ky-hao hearing the explosion, hastened forward, and called aloud to enquire who had fired the gun. The other heard the voice, and going to the place from whence it proceeded, then learned whom he had wounded by the mischance. The wounds of Vang-yung-man being mortal, he expired after a very short interval of time had elapsed.

She-fo-pao, being repeatedly examined by the magistrate, acknowledged the fact without reserve, and, upon the strictest investigation and enquiry being entered upon, deposed, That it was really during the obscurity of the night that he had ascended the hill, in order to watch the corn, and on hearing a noise proceed from a quarter of the field that was extremely dark, and in which the shadow of some person was discernable, he had called out, but received no answer:—That the suspicion then arose in his mind, that they were either thieves or wild beasts, and alarmed him for the security of his person, being then entirely alone, he therefore fired the gun to repel the danger, and wounded Vang-yung-man by mischance, so that he afterwards died.

That he, the deponent, was not actuated by any other motive or intention on this occasion, nor desirous of causing the death of an individual. The relations of the deceased being then examined, give a corresponding evidence, and raised no doubts in other respects to the truth of the above deposition. In consideration, therefore, hereof it appears that, although She-fo-pao is guilty of homicide by gun-firing, yet, since he was upon the watch over the fields, in the darkness of the night, and perceived the shadow of a man, whom he hailed, and from whom he received no answer, and had in consequence apprehended the approach of thieves or wild beasts, to prevent which, he fired the gun that occasioned the wounds whereof the man is now dead—It follows, that there did not exist any premeditated intention of murder.—The act of which She-fo-pao stands convicted may be, therefore, ranked under the article of homicide committed in an affray, and the sentence accordingly is, to be strangled upon the next ensuing general execution or gaol delivery.

The above report being transmitted to the supreme criminal tribunal at Pekin,—They rejoin,

That, on investigation of the laws we find it ordained, that homicide by gun-firing shall receive a sentence conformable to the law against intentional murder; and that the law against intentional murder gives a sentence of decapitation on the next ensuing public execution, or gaol delivery. It is likewise found to be ordained by law, that whoever shall unwarily draw a bow, and shoot an arrow towards fields or tenements, so that any person unperceived therein shall be wounded, and die therefrom, the offender shall receive a hundred blows with the bamboo, and be banished to the distance of three thousands lys (near a thousand miles).

In the case now before us, She-fo-pao, being armed with a musquet, goes to watch the corn, hears a noise in the fields, and calls aloud, but, receiving no answer, suspects it to proceed from thieves or wild beasts, and fires the gun, by which Vang-yung-man was wounded, and is now dead. But in the deposition given in by the defendant, the declaration that he saw the shadow of some person does not accord with the suspicion afterwards expressed, that the noise arose from wild beasts. If, in truth, he distinguished traces of a man, at the time of his calling out, notwithstanding that the violence of the wind prevented his hearing the reply, She-fo-pao had ocular proof of the reality of the person from the shadow he had seen. Continuing our investigation, we have further to notice, that when She-fo-pao took his station in order to guard the middle ground, Vang-yung-man was engaged in watching his fields in a similar manner, and would have occasion to go near the limits of the middle ground in his way to his own farm, and which could not be far removed from the path leading to the middle ground; on which account it behoved She-fo-pao to hail the person repeatedly, previous to the firing of the gun, whose effect would be instantaneous, and occasion the death of the unknown person from whom the sound proceeded.

She-fo-pao not having repeatedly hailed the person from whom the noise had arisen to disturb him, and proceeding to the last extremity upon the first impulse or alarm, are grounds for suspecting that there exists a fallacy and disguise in the testimony given in this affair, in which case, a sentence conformable to the law against homicide, committed in an affray, would afford a punishment unequal and inadequate to the possible aggravation of the offence.

On the other hand, it would appear, in confirmation of his statement, that these fields were, according to the custom of the neighbouring villages, understood to be guarded at that time in a the manner aforesaid, and that circumstance proving true, the accident that followed might still be considered solely as the effect of apprehension of wild beasts by night, inducing the accused to fire towards fields or tenements, so as to wound a man mortally by the mischance.

Should a strict examination admit of this interpretation of the offence, the sentence may be awarded according to the law, immediately applicable to the subject, and not in conformity with the law against homicide committed in an affray. As the life or death of the offender rests on the preference to be shewn towards either of those expositions of the case, it is resolved to hold any immediate decision as premature, and we issue our directions to the said sub-viceroy to revise the prior decision; and, with the assistance of a renewed investigation, finally to determine and report to us the sentence which he may conceive most agreeable to the spirit of our laws.

After a second investigation, and reconsideration of the affair, the sub-viceroy sent in the following report to the supreme tribunal: Pursuant to the order for revisal issued by the supreme criminal tribunal, She-fo-pao has been again examined at the bar, and deposes, That on hearing a noise in the corn fields, he conceived it to proceed from thieves, and called out in consequence, but, receiving no answer, and finding the noise gradually to approach him, he then suspected it to have arisen from a wolf or tyger; and, in the alarm thus excited for his personal safety, had fired the gun, by which Vang-yung-man had been mortally wounded; That, since the event happened in the second watch of the night, after the moon had set, and while clouds obscured the faint light of the stars, it was really a moment of impenetrable darkness; and that it was only at the distance of a few paces that he distinguished the approach of the sound that had alarmed him, but, in fact, had never seen any shadow or traces whatsoever; That he had perceived any traces or shadow of that description, he would not have ceased to call out, though he had failed to receive an answer the first time, nor would he have had the temerity to fire the gun, and render himself guilty of murder.

That, on the preceding examination, the severity and rigour of the enquiry regarding the grounds upon which he suspected the approach of thieves, so as to induce him to fire, had overcome him with fear, being a countryman unused to similar proceedings, and produced the apparent incongruity in his deposition, but that the true meaning and intent was to express his absolute uncertainty whether the alarm arose from thieves or wild beasts and nothing farther, and that from such deposition he had never intentionally swerved in the course of the investigation.

According, therefore, to the amendment suggested by the supreme tribunal, it appears indeed, that when the noise was first perceived in the fields, She-fo-pao had called out, and on being prevented by the wind from hearing a reply, had taken alarm as aforesaid.

And whereas it was likewise deposed by She-fo-pao, That the grain being ripe at that season, the stems were exceeding high and strong, so as to render it difficult to walk amongst them, it seems that Vang-yung-man, in walking through the corn, had produced a rustling noise very audible to She-fo-pao, who was sitting on the declivity of the hill, and in a direction in which the wind favoured the progress of the sound; but when the latter called out, the wind, on the contrary, prevented him from being heard, and consequently from receiving an answer; this mischance, therefore, gave rise to his suspicion of the approach of wild beasts, which appears to have been the sole and undisguised motive for firing the gun.

This statement of facts being narrowly investigated, in compliance with the supreme tribunal's order for revisal, may be confided in as accurate, and worthy of credit; the result, therefore, is that the offender during the darkness of the night, and under the apprehension of the approach of a wolf or tyger, had fired a musquet in a spot frequented by men, and had mortally wounded a man by the mischance, which corresponds with the law suggested in the order for revisal issued by the supreme tribunal; namely, that law against an offender who should unwarily draw a bow and shoot an arrow towards fields or tenements, so that any person unperceived therein should be wounded and die therefrom.

The prior decision, conformably to the law against homicide committed in an affray, subsequent investigation does not confirm; and She-fo-pao is, therefore, only punishable with banishment.

This second report being received by the supreme criminal tribunal, they declare that,

The sentence having been altered on a revision by the sub-viceroy, and rendered conformable to the law, which ordains that, whoever shall unwarily draw a bow and shoot an arrow towards fields or tenements, so that any person unperceived therein may be wounded, and die therefrom, the offender shall receive a hundred blows with the bamboo, and suffer banishment to the distance of 3000 lys.

We confirm the sentence of a hundred blows of the bamboo, and banishment to the distance of 3000 lys; and further prescribe, that ten ounces of silver (3l. 6s. 3d.) shall be paid by the offender to the relations of the deceased for the expences of burial.

The sentence, being thus pronounced on the 19th day of the 5th moon, of the 27th year of Kien-Long, received the Imperial sanction on the 21st day of the same moon, in the following words: Pursuant to sentence be this obeyed.

KHIN-TSE.