Star.
London, England, 1819-08-06 00:00:00

GENERAL ORDERS BY THE COMMANDER-IN-CHIEF.

Head Quarters, Calcutta, January S 5,
At an Europe.m General Court Martial assembled
at Nagpore on Tuesday, the 22d day of December,
1813, Rots Etty KENYON, Gunner in the Honourable
Company's Ist Battalion Madras Artillery, was ar-
raigned tyen the umiermui.ii.oncd Charge:
" Roamer KENYON, Gunner in the Honourable Company's
Ist Barulion Madras Artillery, placed in confinement, and char-
ged with the wilful murder of Matross John Leviston, of the
same corps, at Chandah, on the Bth of ()ember, Had."
Upon which Charge the Court carne to the follow-
ing decision:
OPINION AND Sr_ursNcr.—" The Court havinr, duly considered
the ey,i4ence brought forward in support of the prosecution, as
well as what has appeared in the defence, do acq;.it the prisoner,
Gunner H. Kenyon, of the crime of wilful murder; but the
Court do find the prisoner guilty of having ailed ;,u an affray (10
which they mutually went to arms, and tired at each other),
Matross Joh.-! Levii:orit of Artillery, which act being subversive
of order Ara discipline, and in breach Or the rules and articles of
war, the Court do sentence the prisoner, Robert Kenyon, gun-
ner Ist battalion Artillery, to be placed in solitary, cominement
for the period of nine months, at such station as may be directed
I.‘y his Excellency the Moat Noble tha Commander in Chief in

-------
Remarks by the Commander in Chief:
Though the CoMmander in Chief concurs entirely in the hu-
mane and just consideration which influenced the Court, and to
which the Court apparently found diflicuttv of giving effect
otherwise than by the terms, adopted, his Loreship cannot con-
firm the sentence as it stands, lest a dangerous misconception
should be entertained from it among the troops.
Where two *soldiers go out by agreement as in. the present in-
stance, to fight with their fusees, or other roortal weapons, it is
not a case of affray which implies unpremeditated contest, but
a case of deliberate duel; and in the latter, notwithstanding
each party hag voluntarily staked his life. if ore be killed, the
survivor is, in the eye of the law, guilty of murder. • As Man-
slaughter is a distinction peculiar to the common law of England,
it is a modification of the crime which a Military-Tribunal.
would not be competent to pronounce; but the Court would be
confined to laying its sense of the extenuatory circumstances he-
fot e the Commander-in-Chief. Probably this restriction on the
Court occasioned the judgment now in vestion, which, from
the foregoing explanation, the Court will perceive to have been
incorrect. Agreeing in the essential point with the Court, the
Commander-in-Chief writ not subject the prisoner to the suspense
and imprisonment during several weeks which would attend his
Lordship's ordering a revisal of the proceedings, but directs Ito- •
beet Kenyon to be discharged as acquitted of nitii'der.
The circumstances, however, which induce this lenity, are to
he particularly explained to the men of every Corps ; namely,.
that the deceased had, without provocation, wantonly as.:,ailed
the prisoner with blows; that tile dteeased gave the immediate
challenge ; and that there ova. nut t:me between the irritation
from the assault and the criminal act for the prisoner to reflect
adequately on the nature of what he was about to do.
The prisoner to be released, and to return to his duty, and
the Court to be dissolved, should it have no further duty to per-
form. (Signed) JAMES N Adjt.-Gen. of the *srilly.