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1. This appeal involves a question of principle in the administration of the criminal law and its solution is not unattended with difficulties.

2. The appellant, Peter Whelan, was tried at the Dublin Circuit Court upon a charge of having, with others, conspired to steal a quantity of silver coin while in course of transit upon the Great Northern Railway and also upon a charge of having with several others been guilty of receiving stolen goods contrary to sect. 33, sub-sect. 1, of the Larceny Act, 1916.

3. The evidence against the appellant was that of one, Farnan, who pleaded guilty to having been the thief ; and the jury, having regard to the Judge’s warning, found Whelan not guilty of the charge of conspiracy to steal. The evidence of Farnan as to the receiving by Whelan was not denied by the latter, but Whelan himself gave evidence and alleged that in receiving the stolen goods he acted under violent threats on the part of Farnan. It is not necessary to review the evidence owing to the finding made by the jury. The jury did not find a general verdict either of guilty or not guilty, but, in answer to a question placed by direction of the Circuit Judge on the issue paper, viz. :- “In receiving the money did Peter Whelan act under threat of immediate death or serious violence ?” the jury returned the answer “Yes.’’ The Circuit Judge formed the opinion that this finding in law amounted to a conviction, but that he should give full effect to the jury’s finding in the admeasurement of the punishment, and he passed a suspensory sentence. From this conviction Peter Whelan has appealed, and he contends that he is entitled. on the finding of the jury, to an acquittal upon the charge of receiving stolen goods.

4. The authorities to be found in the books on the point so raised are few in number and, indeed, show some discrepancy. Counsel for the accused sought to evade the burden of arguing that, as a general principle of law, such coercion as was found by the jury freed from culpability, and he strove rather to say that it was for the Judge in the particular case to say whether the charge was one to which a defence of this kind was applicable. He contended that by leaving the question to the jury the Judge had ruled in effect that an answer favourable to the accused amounted to an acquittal. It is, however, clear that the learned Circuit Judge did not rule in this manner as he treated the jury’s finding as a conviction. The Court therefore has to determine whether, in so interpreting the finding the Circuit Judge was correctin law. Counsel for the accused has accordingly made a very full argument based upon the authorities to the effect that, in all crimes save murder, duress per minas of the nature present in this case amounted to a justification.

5. All the elements producing culpability concur in this conviction except the free exercise of will, and the point is accordingly narrowed down to the consideration whether there was such an absence of will as to absolve from guilt.

6. For the prosecution it was contended that actual physical force which left the accused no choice of will was sufficient to absolve from guilt but that anything short of such force was merely matter for mitigation of punishment.

7. In the case of treason, according to Hale, immediate fear of death was a justification: Hale, “Pleas of the Crown,” Vol. 1. p. 50. in which place he cites Oldcastle’s Case in the year 1419. This rule was recognised also in R. v. Gordon 1 East P.C. 71. In MacGrowther’s Case Fost 13 in the year 1746, the distinction is drawn between threats directed against the person and threats upon property. Lee C.J. said (at p. 14) :- “ The only force that doth excuse is a force upon the person, and present fear of death ; and this force and fear must continue all the time the party remains with the rebels. It is incumbent on every man, who makes force his defence, to show an actual force, and that he quitted the service as soon as he could.” We were also referred to the opinion of Lord Mansfield in R.. v. Stratton 21 How. St. Tr., 1045, 1220, 1230, where he refers with approval to the ruling in the case of treason and appears to base this ruling upon a general principle to be extended to other classes of crime. In R.. v. Crutchley 5 C. & P. 133, which dealt with a charge under 7 & 8 Geo. 4, c. 30, sect. 4, of breaking a threshing machine, Patteson J. evidently considered that if the prisoner was forced by a mob under threats to his person to do the act complained of he was entitled to an acquittal. On the other hand in R.. v. Tyler 8 C. & P. 616 , Denman C.J. appears to state as a general principle his view to be that the apprehension of personal danger does not furnish any excuse for assisting in doing an act which is illegal. R. v. Dudley and Stephens 14 Q B D 273 does not afford any assistance on the point now before the Court save that the difficulty of formulating a rule of universal application is fully recognised.

8. Notwithstanding his long experience of the criminal law Sir Fitz-James Stephen states that he never personally came across a case in which duress per minas was pleaded as a defence ; neither have counsel been able to discover any reported case on the subject in more recent years. The matter before the Court must therefore be approached from the standpoint of general principle. It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats.

9. In the case before the Court we consider that the finding of the jury was meant to imply that the coercion was present when the act, otherwise criminal, was committed, and we are of opinion that the conviction must he quashed and a verdict of acquittal entered.