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ICLR: King's/Queen's Bench Division/1944/REX v. DUNCAN AND OTHERS. - [1944] K.B. 713
[1944] K.B. 713
[COURT OF CRIMINAL APPEAL]

REX v. DUNCAN AND OTHERS.

1944 June 8, 9, 10.

Viscount Caldecote C.J., Oliver and Birkett JJ.
Criminal law - Witchcraft - "Conjuration" - Witchcraft Act, 1735 (9 Geo. 2, c. 5), s. 4 - Evidence Demonstration by "medium" of materialization of spirits - Rejection - Discretion of judge.

"Any kind of .... conjuration" in s. 4 of the Witchcraft Act, 1735, does not refer exclusively to the calling up of evil spirits.
Therefore, it is an offence under the words of that section "pretend to exercise .... any kind of .... conjuration," to
pretend to call up the spirits of deceased persons to appear to or communicate with living persons.

The appellant, a spiritualist "medium" offered to give a demonstration of her powers at the trial under the
usual conditions observed during such demonstrations:Held, that the judge, in rejecting this evidence, had exercised his discretion rightly.
APPEAL against conviction.
The appellants, Victoria Helen Duncan, Frances Brown, Ernest Edward Hartland Homer, and
Elizabeth Ann Jones, were convicted before the Recorder of London, at the Central Criminal Court
on March 31, 1944, on a charge that they "conspired together and with other persons unknown to
pretend to exercise or use a kind of conjuration, to wit, that through the agency of the said Helen
Duncan spirits of deceased persons should appear to be present in fact in such place as the said
Helen Duncan then was in, and that the said spirits were communicating with living persons then
and there present," in contravention of s. 4 of the Witchcraft Act, 1735(1). Duncan was a
professional spiritualist "medium" engaged at a substantial fee to give a series of seances in a
"temple" maintained by Homer over his chemist's shop. Jones, known as Mrs. Homer, lived with
Homer. Brown assisted Duncan and acted as her booking agent. On January 14 and 19, 1944,
Duncan, in a dim light at seances, produced her "spirit guide," Albert, and stated that he had a
message for a person present who was seated in a particular chair and that a form would appear of
someone

(1) Witchcraft Act, 1735 (9 Geo. 2, c. 5) s. 4: "And for the more effectual preventing and punishing any pretences
to such arts or powers .... whereby ignorant persons are frequently deluded and defrauded .... if any person shall ....
pretend to exercise or use any kind of witchcraft, sorcery, inchantment, or conjuration" he shall be liable to

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penalties.

[1944] K.B. 713 Page 714

who claimed to be a friend or relative of that person. In some cases the form which "materialized"
was that of a bird or animal, such as a parrot or cat. Evidence was given which satisfied the jury
that the phenomena were produced by fraudulent devices. The jury convicted the appellants, who
appealed.
Loseby and Pedler for the appellants. The recorder misdirected the jury in telling them that to call up the
spirits of deceased persons was a "conjuration" within s. 4 of the Witchcraft Act, 1735. The relevant statutes
on the subject up to that time, except 33 Hen. 8, c. 8, speak only of evil spirits, namely, 5 Eliz. c. 16, and 1
Jac. 1, c. 12. The statute of Henry 8, it is true, only speaks of "conjuration of spirits," but that Act was
repealed by 1 Edw. 6, c. 12, and Coke's Institutes, 1809, pt. III, c. 6, p. 45, speaks of "conjuration of any evil
and wicked spirit," Blackstone's Commentaries, 8th ed., bk. IV, p. 60, refers only to evil spirits, and Hawkins'
Pleas of the Crown, 8th ed., vol. I, bk. 1, c. 26, p. 356, has "such as shall use any .... conjuration of any evil
spirit." In Dalton's Country Justice (1635 ed.), p. 279, it is stated that Conjurers .... have personal conference
with the devill, "or evill spirit." In the old dictionaries - Cowel's (1727), Chambers' (1741), and Bailey's (1755),
and in Byrne's Dictionary of English Law (1923), "evil" is never omitted before "spirits," and three of these
appeared after the passing of the Act of 1735. That being in law the meaning of "conjuration" at the date of
the passing of the Act of 1735, that statute, in using the word "conjuration," must be assumed, in the absence
of clear words to the contrary, to have intended it to bear its recognized meaning. In rejecting the evidence of
a demonstration by the appellant, Duncan, the recorder wrongly exercised his discretion. The result might
have been conclusive in the appellant's favour. [Ewen's "Witch hunting and witch trials" was also referred to.]
Maude K.C. and Elam for the Crown. The Witchcraft Act, 1735, for the first time since the Act of 33 Hen. 8,
omits the word "evil" before spirits, and speaks of "any kind of conjuration." That must have been deliberate.
It may be that up to that date conjuration did have the meaning contended for by the appellants, and the
omission from the Act of the word "evil" which had hitherto always preceded "spirits" is significant. In the
Oxford English Dictionary the
[1944] K.B. 713 Page 715
definition of "conjuration" is the "invoking of spirits. Effecting of something supernatural .... by the use of
some spell: orig. the compelling of spirits or demons .... to appear." There the change in the meaning of
"spirits" appears to be noted. The giving of a demonstration would have been impracticable at the trial under
the conditions, e.g., the dimming of lights, imposed by the appellant for the purpose of such demonstration.
The recorder had a discretion and he exercised it rightly.
Cur. adv. vult.
June 19. VISCOUNT CALDECOTE C.J. delivered the judgment of the court, in which he stated the facts and
continued: Before dealing with the point which was regarded by counsel for the defence as his only point of
law and as his most important ground of appeal, namely, the submission as to the meaning to be attributed in
law to the term "conjuration" in the Witchcraft Act, 1735, I will deal with the submission that the learned
recorder wrongly rejected evidence by the appellant, Duncan, purporting to demonstrate and prove that at all
material times she was a materialization medium and to disprove the allegations made against her. In the
course of the argument in this court the learned counsel for the appellants conceded that it was a matter for
the discretion of the learned recorder whether to allow such a demonstration to be given or not. The difficulty
of arranging such a demonstration satisfactory in all its detail to both sides is obvious. To mention only one
matter, if, in the course of the demonstration, ectoplasm was to be alleged to emanate from the medium,
would the jury be allowed to handle it or to do anything to verify the appearance? Or would the jury have to
be content with what they could see in a dim light such as was provided on the occasions in question? A host

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of similar difficulties can be seen both from the point of view of the prosecution and of the defence. It seems
clear to us that no such demonstration, even if the circumstances in which it should take place could be
agreed, and whatever it purported to show, could be conclusive on the only issue which the jury had to try,
and, indeed, might well confuse the jury or operate to the great disadvantage of the appellants. We think the
learned recorder exercised his discretion wisely in this case, and we may add that he was fortified in what he
did by the answer of the jury to the question he asked them whether they wished to see such a
demonstration. No reasonable ground of complaint can be sustained on this point.
[1944] K.B. 713 Page 716
There remains for consideration the point that there was no evidence of any acts by the appellants
constituting an offence under the Witchcraft Act, 1735, and that the learned recorder wrongly directed the jury
that a pretence to hold conversation with spirits of deceased persons constituted an offence under that Act.
The argument was that the proper direction would have been to tell the jury that only a pretence to hold
conversation with wicked and evil spirits was forbidden by s. 4 of the Act of 1735. In the course of an
interesting and elaborate argument, Mr. Loseby cited the authorities who had written on the word
"conjuration" before 1735, and quoted from some of the dictionaries published after 1735.
The conspiracy of which the appellants were found guilty was a conspiracy to contravene s. 4 of the
Witchcraft Act, 1735, and the material words in count 1 of the indictment were: "To pretend to exercise or use
a kind of conjuration, to wit, that through the agency of the said Helen Duncan spirits of deceased persons
should appear to be present in fact in such place as the said Helen Duncan then was in, and that the said
spirits were communicating with living persons then and there present." "Pretend to exercise or use any kind
of .... conjuration" are the words of s. 4 of the Act of 1735, and it is important to look at the history of this
matter. I may begin with 33 Henry 8, c. 8, which uses the words "conjuration of spirits" with no reference to
evil spirits at all. That Act was repealed by a statute of Edward 6, which, in turn, was followed by the statute
5, Eliz. c. 16. This last statute, before speaking of the repeal of 33 Henry 8, c. 8, by 1 Edward 6, c. 12,
speaks of "the wicked offences of conjurations and invocations of evil spirits" which were made felonies by
the statute of Henry, whereas the words "evil spirits" do not occur in the statute of Henry 8 at all. That statute
merely speaks of the practice of "invocations and conjurations of spirits." The next statute dealing with this
matter was 1 Jac. I, c. 12, which in s. 2 speaks of the "conjuration of any evil and wicked spirit." The statute
was a characteristic example of the attitude of James I to this practice. Finally, the Witchcraft Act, 1735, s. 4,
after repealing the statute of James I speaks of "conjuration" without reference to spirits, or evil and wicked
spirits, but simply "any kind of .... conjuration."
The point submitted by Mr. Loseby is that the word "conjuration" in the Act of 1735 has only one meaning,
and
[1944] K.B. 713 Page 717
that meaning has been well defined and crystallized in law. He says it bears the meaning in the language of
Cowel's Interpreter (a publication of 1672) as contained in the following passage: "It is especially used for
such as have personal conference with the Devil or evil spirits." He cited from the third part of Coke's
Institutes, Hawkin's "Pleas of the Crown," and many dictionaries, but the definition I have quoted contains the
main point of his submission. We must be allowed to doubt whether Cowel's Interpreter possesses the
authority claimed for it by Mr. Loseby, and we certainly do not think that this meaning or interpretation is to be
given to the words "any kind of conjuration" in the Act of 1735. Indeed, the express alteration from the statute
of James I, which is being repealed, and the use of the words "any kind of conjuration" without reference to
spirits, evil or otherwise, would seem to indicate the contrary. In the sixteenth and seventeenth centuries the
word "conjuration" was commonly used with reference to traffic with spirits. In those centuries the minds of
men were greatly concerned with the evils which they believed arose from such conference, and as a result
of the teaching of the Church, based possibly on passages in the Bible, all such spirits were regarded as,
and were apt to be described as, evil spirits. Conjuration of these evil spirits was an offence, it was said,
against God and religion and was usually linked with witchcraft, enchantment, invocation and sorcery, the
punishment for which, as for heresy, was burning in early times. But "conjuration" was not a word which was

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to be taken to mean only "conjuration of evil and wicked spirits." That was an express meaning given to it by
the inclusion of the words in the statutes where such words appear. The Oxford English Dictionary gives
examples of its use in different ages right down to modern times. Coke's Institutes, third part, ch. 6,
associates the word "conjuration" with "invocation" and seems to suggest that the two words have the same
meaning. The learned author quotes the case of King Saul from the First Book of Chronicles, c. x, vv. 13, 14:
"So Saul died for his transgression .... and also for asking counsel of one that had a familiar spirit to inquire
of it; and inquired not of the Lord."
We do not think that the words "any kind of conjuration" in the Witchcraft Act, 1735, can be limited in the way
Mr. Loseby suggests. In the first place, it is to be observed that the offence described in the statute is the
pretence to
[1944] K.B. 713 Page 718
exercise or use "any kind of conjuration." Secondly, it appears plain that with the abolition of the felonies of
witchcraft, sorcery, enchantment or conjuration the minds of men were making an advance. These things
were no longer believed in, but the Act of 1735 did not go the length of allowing anyone to make the pretence
of engaging in converse with spirits, not being evil spirits. Such a distinction would raise an issue of fact
incapable of determination. In our judgment, the words of the section with which we are concerned in this
case are all-important. What was aimed at, as shown by the language of the statute itself, was that ignorant
persons should not be deluded or defrauded by the pretence to exercise or use any kind of conjuration. The
reference to "evil spirits" is omitted, and the words "any kind of" were added, and, in our opinion, these words
are wide enough to cover the conspiracy alleged. It was repeatedly emphasized at the trial by the recorder,
and must be emphasized here again, that the only matter for the jury was whether there was a pretence or
not. The prosecution did not seek to prove that spirits of deceased persons could not be called forth or
materialized or embodied in a particular form. Their task was much more limited and prosaic. It was to prove,
if they could, that the appellants had been guilty of conspiring to pretend that they could do these things, and,
therefore, of conspiring to pretend that they could exercise a kind of conjuration to do these things. That was
the case for the prosecution, and the jury must be taken to have accepted the evidence for the prosecution
when they found the appellants guilty. We think all these appeals against conviction should be dismissed.
Appeals dismissed.
Solicitor for appellants: G. A. Elkin.
Solicitor for Crown: Director of Public Prosecutions.

W. L. L. B.