The Judge Advocate summed up as follows:—With reference to this case, it would appear that the prisoners considered that they had justification (in virtue of their instructions from the late Captain Hunt regarding the treatment of Boer prisoners of war) for the course they adopted, also that they acted under provocation and in ignorance.
The general rule is that a person is responsible for the natural consequences of his own acts. If several persons meet with a common intent to execute some criminal purpose, each is responsible for every offence committed by any one of them in furtherance of that purpose.
A person is in ail cases fully responsible for any offence which is committed by another by his instigation, even though the offence may be committed in a different way from the one suggested. The fact that the blame is shared by another will not relieve a person contributing to the death from responsibility.
If a person has unlawfully caused death by conduct which was intended to cause death or grievous bodily harm to some person, whatever the intention of the offender may have been, he is guilty of murder. It may be taken generally that in all cases where a killing cannot be justified or excused, if it does not amount to murder it is manslaughter, and a person charged with murder can be convicted of manslaughter. Again, the offence is manslaughter if the act from which death results was committed under the influence of passion arising from extreme provocation; but it must be clearly established, in all cases where provocation is put forward as an excuse, that at the time when the crime was committed the offender was actually so completely under the influence of passion arising from the provocation that he was at that moment deprived of the power of self-control, and with this view it will be necessary to consider carefully the manner in which the crime was committed, the length of the interval between the provocation and the killing, the conduct of the offender during the interval, and all other circumstances tending to show his state of mind.
Ignorance of law is no defence to a criminal charge, but such ignorance may be properly taken into consideration in determining the amount of punishment to be awarded.
The essence of the crime of murder is malicious intent. I would point out that the prisoners did not carry out the order they allege to have received re the shooting of Boers in khaki until after the death of Captain Hunt, which they admit biassed their minds.
The rights of killing an armed man exists only so long as he resists; as soon as he submits he is entitled to be treated as a prisoner of war.
As regards the treatment of an enemy caught in the uniform of his opponent, it would have to be shown that he was wearing such uniform at the time with the deliberate intention of deceiving.
Enemies rendered harmless by wounds must not only be spared; but humanity commands that if they fall into the hands of their opponents the care taken of them should be second only to the care taken of the wounded belonging to the captors.
The prisoners, their escorts, and counsel then retired to the corridor while the court consulted upon a verdict; in a little over half an hour we were recalled. Glancing round the court, I noticed one of the members in tears. My attention was arrested, but I did not then attach any significance to it.
On our appearance in court we were requested to state our military service, which was as follows. Statement as to service by Lieutenant H. H. Morant, B.V.C.:--
"I have held a commission since 1st April, 1901, in the Bush-veldt Carbineers.
"Prior to this I was in the South Australian Second Contingent for nine months. I was a sergeant in that corps, and was promoted to a commission out of that corps into the Transvaal Constabulary, but went home to England for six months. I came out again and joined the B.V.C.; since then I have been serving on detachment the whole time. I hand in a letter from the O.C. South Australians.
"In March, 1900, I was carrying despatches for the Flying Column to Prieska, under Colonel Lowe, 7th D.G. I was in the general advance to Bloemfontein, and took part in the engagements of 'Karee Siding and Kroonstadt and other engagements with Lord Roberts until the entry into Pretoria. I was at Diamond Hill, and then was attached to General French's staff, Cavalry Brigade, as war correspondent with Bennet Burleigh, for the London 'Daily Telegraph,' and accompanied that column through Belfast and Middleburg to the occupation of Bar-beton, when I went home to England."
The letter from the O.C. South Australians read:—
My dear Morant,--There seems to be an immediate probability of the S.A. Regiment returning either to Australia or going to England, so I hasten to send you a line wishing you "Au Revoir." I desire to wish you most heartily every success in your future career, and to express my entire satisfaction with your conduct while with the South Australians. Your soldierly behaviour and your continual alertness as an irregular carried high commendation—and deservedly-from the whole of the officers of the regiment. I trust that in the future we may have an opportunity of renewing our pleasant acquaintanceship.
Statement by Lieutenant Picton:-
"I have been in South Africa two years on service. I hold my commission in the B.V.C. since last May. Previous to that I was attached to the 8th M.E, and served under Colonel Le Gailais. I have received the Distinguished Conduct Medal, and been mentioned in despatches. I have been three times wounded since the outbreak of the war.
"I produce three letters from different commanding officers under whom I have served, and could refer the court to Col. Hodgson, commanding 9th Area, Cape Colony.
"During the month I was in Spelonken under Capt. Hunt I took 37 prisoners, 50 rifles, 15 waggons, and 500 head of cattle, mules, horses, &c."
Letter (1) from Captain Savil, G.C. Loch's Horse:— Sergeant Picton came out with Loch's Horse as a corporal in February, 1901. He has given entire satisfaction to his officers, and I am very pleased to state I have found him not only very plucky when in action, but steady and painstaking in the execution of his duty.
He has been recommended for the D.S.M. Having been under my personal command for some time, I cannot speak too highly of his good conduct.
Letter (2):— This is to introduce to you Sergeant Picton, of my corps, Loch's Horse. He is a worthy fellow and well connected, and is seeking a commission. Could you help him in getting such, in your regiment? I understand you have some vacancies.
Letter (3) from Lieut.-Colonel Hickee, O.C. 8th M.L:— I am sending Sergeant Picton, Loch's Horse, for discharge. He has served with the 8th Corps M.L for the last eleven months, and has been under my command since 9th November, 1900. I am able to say that he has carried out his duties in a most satisfactory manner.
He is a most efficient interpreter and a good man in the field, and was recommended to the C. in C. for his behaviour at Bothaville.
Statement by Lieutenant Handcock, B.V.C.:-
"I have served about twelve months in the New South Wales Mounted Infantry as a farrier; about two months in the Railway Police, Pretoria; and from the 22nd February last year in the Bushveldt Carbineers as veterinary lieutenant."
Statement by Lieutenant Witton, B.V.C.:--
"I have held a commission since June last in the B.V.C. I was previously in the 4th Contingent Imperial Bushmen (Victorian) as Q.M.S. for fourteen months. Formerly I was in the Victorian Permanent Artillery about twelve months as a gunner.
"I have also served nearly two years in the Victorian Rangers, Volunteer Corps.
"I received my commission for raising a gun detachment for the B.V.C."
