Travels in China, Containing Descriptions, Observations, and Comparisons, Made and Collected in the Course of a Short Residence at the Imperial Palace of Yuen-Min-Yuen, and on a Subsequent Journey through the Country from Pekin to Canton

by Sir John Barrow

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.