Regina v. Cunningham

Court of Criminal Appeal, 1957.

41 Crim.App. 155, 2 Q.B. 396, 2 All.Eng.Rep. 412.

Dressler, p. 133-134


Facts: Cunningham stole the gas meter from the basement of the house he was going to live in, unknowingly causing gas to be released into the neighboring house and threatening the life of his future mother-in-law.  Cunningham was found guilty by a jury based on instructions to which the defendant takes exception.


Issue: Did the trial judge give the jury the wrong definition of “maliciously”?


Rule: Malice is not merely wickedness, but either an “actual intention to do the particular kind of harm” or “recklessness as to whether such should occur”.


Analysis: The court finds that the trial judge used the old, incorrect definition of malice instead of the one cited.


Conclusion: The court quashed the conviction.


Notes and Questions


1.     To convict a person of arson, the Government must prove, aside from the actus reus, that the person either actually intended to cause the “burning of the dwelling house of another” or recklessly took the risk of such burning.

2.     In this case, the trial court used the “culpability” approach to mens rea, while the Court of Criminal Appeal used the “elemental” approach.

3.     The Court of Criminal Appeal defines “recklessness” as the mental state of foreseeing that stealing the gas meter might hurt somebody.  There is no evidence in the record that Cunningham foresaw that his action might cause injury to someone.


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