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road, to the circumstances that took place immediately before the alleged offence was committed, and to the nature of the wound. The jury, after deliberating half an hour, found the prisoner guilty. The prisoner made vehement protestations of innocence, declaring that the wound was made during a struggle between herself and the deceased for the possession of the knife, and that she immediately tried to stop the bleeding. Baron Channell, in passing sentence, said that he entirely approved of the verdict found by the jury. “I cannot doubt myself,” he added, “ that you were the cause of the death of the deceased without any lawful excuse. In the fact that you
did take his life unlawfully are all the elements necessary to make you guilty of this charge. The question of punishment rests for the Court, and that is a great and serious responsibility. It is manslaughter of a very serious kind. I cannot doubt, and I am sure the jury have not doubted, that you resorted to that basket, took the knife in your hands, and armed yourself with it, to encounter the deceased, although I feel you may not have anticipated the awful consequences that ensued. I will assume in your favour that there may have been some irritating observations; but the public safety will never be secured if in a quarrel of this kind one of the parties is to be allowed to resort to so deadly a weapon with impunity, although it may not for the moment be intended to be used in the way it is afterwards used. It is to me a matter of painful anxiety to know what course I ought to take in the sentence I am about to pass. There is no doubt that there was something like provocation on the part of the deceased, and that it was under the influence of excited feelings thus brought into action that this unhappy event occurred. The sentence of the Court upon you is that you be kept to penal servitude for eight years.” The prisoner covered her face with her hands while Baron Channell was addressing her; and when he had finished she fainted, and had to be carried away.
THE TRIAL OF KELLY.
The trial of Robert Kelly for the wilful murder of Head Constable Talbot was opened at Dublin on the 30th of October, before Lord Chief Justice Whiteside and Lord Chief Baron Pigott. There was great unwillingness to serve on the jury, and it was not until the close of the first day that the requisite number of jurors could be obtained. The prisoner was escorted to the court by two troops of dragoons, as well as a large body of police.
The main facts of the case were as follows:-About midnight on the 12th of July, as Talbot was walking in a street in Dublin, a man sprang from a doorway and fired a revolver at his breast, the bullet passing through the breast to the back of the neck. Talbot was taken to the Hospital, where he was attended by Dr. Stokes, M.C.S., physician to the University of Dublin Hospital, and some other eminent surgeons, and died at the end of a few days. The murderer, after firing the shot, retreated into the doorway, from which the prisoner Kelly was immediately afterwards seen to run away. In his retreat he fired a bullet from a revolver at a policeman who was in pursuit of him, and hit him in the thigh. Kelly was however arrested, and was identified by Talbot before his death as the man who had fired at him.
The Solicitor-General and Serjeant Armstrong were counsel for the Crown, Mr. Butt, Q.C., and Mr. Falkiner, Q.C., for the prisoner.
The Solicitor-General, in opening the case, said that its importance could not be overrated. The prisoner stood charged with the wilful murder of Head Constable Talbot, and the circumstances aggravated, if that were possible, the gravity of the crime. Two constables, Mullan and Grimes, identified the prisoner as the man who fired the shot. The revolver, a neat sis. chambered weapon, was produced in court. A police inspector proved the finding of three bullet moulds in the prisoner's house on the 12th of July. The words “Colt's patent” were engraved on one of the moulds. The chief interest of the trial lay in the examination of Dr. Stokes and the other medical witnesses, as the line of defence on which Mr. Butt mainly relied (in addition to the question of identity, which he maintained was not proved) was that Talbot's death was owing, not to the wounds he had received, but to unskilful surgical treatment. Dr. William Stokes was accordingly examined and cross-examined at great length as to his treatment of the wound. He said he had had the advice and assistance of Mr. Robert William Smyth, Professor of Surgery in the University of Dublin ; Mr. John Hamilton, of Merrion-square; Mr. Robert Adams, of St. Stephen's-green; Mr. Joliffe Tuffnell, ex-Regius Professor of Military Surgery to the Royal College of Surgeons in Ireland; Mr. Porter, Surgeon-in-Ordinary to the Queen in Ireland, and ex-President of the Royal College of Surgeons; and Dr. Robert M'Donnell. He denied that the vertebral artery was cut during the man's lifetime, and was asked, "Why can you tell me that it was not cut during his lifetime P” To which he replied, “For three reasons: First, if that artery had been cut the hæmorrhage would have been enormously profuse ; secondly, if it had been cut it would have been impossible to apply a ligature to it at that situation; and thirdly, the effect on the patient's brain by the sudden withdrawal of the blood would have been obvious and manifest to every one present.” He admitted that the occipital artery had been cut during the operation which he performed. It was ligatured; five or six minutes elapsed before the artery was tied up, but there was no loss of blood, for pressure was put on. He described the first examination of the wounded man. The action of the heart and his pulse were not weak. There was no symptom about him at that time to lead the witness to believe that his life was in danger. He probed the wound, which was not bleeding when he first saw it. He then used a forceps, and felt a hard substance, which he believed to be a bullet, and tried to get hold of it, but there were small pieces of metal impacted into the suture, and no forceps could get any hold on them. The forceps struck the bone. Talbot showed no sign of weakness while he made the examination.
The next time he was seen by several other surgeons, who used the probe. He was subsequently removed from the bed to the theatre of the hospital, after a conversation with the other surgeons; the light was between them. The witness enumerated successive probings. He did not recollect Dr. M.Donnell stating that what was supposed to be a bullet was a bone. Dr. Baxter lent him Nélaton probe, which is of porcelain, and determines with
more certainty the presence of a foreign body. The result was not satisfactory. Although the mark of the lead was not on the probe, the witness was sure that it was. The witness was pressed as to the details of the operation and the several kinds of foreign and other instruments used in the effort to extract the bullet. He stated that if the wound had appeared mortal it would have been useless to attempt to move the lead. Independently of the wound itself, he showed no symptoms involving danger to life. He first showed dangerous symptoms on Thursday, when he found there had been hæmorrhage. It was stopped, but returned on Sunday. He stated that when the artery was cut, the blood did not spout. His depositions at the inquest were referred to, and the word was found in them. He did not recollect having used it.
In the course of the cross-examination Mr. Butt asked :—" According to the rules laid down by the best writers on surgery, was it proper to have made the operation to search for that bullet?”
The Solicitor-General objected—not that he was afraid of the answer, but because he knew they were to have the opinions of other medical men. He gathered from his learned friend last night that he was about going into evidence as to whether the operation was necessary or not, and, if so, as to whether it was properly performed. He was of opinion that this question was improperly introduced into the case. Even assuming that the treatment was the cause of death, he maintained that it was sufficient for the posecution if the wound inflicted was a dangerous one according to the opinion of competent men. It had been proved that this was a dangerous wound. There could be no doubt that Dr. Stokes was a competent medical man-his qualifications showed that-qualifications which were none the worse because of their being from an Irish college and university. That being so, and he having been brought to attend this man, and having attended him according to the best of his skill and ability, it was not possible or competent for his learned friend (Mr. Butt) to go into any questions as to the opinions of other medical men. He submitted that this evidence ought not to be admitted, and he thought they had now arrived at a point in the case where their lordships should intervene.
Mr. Butt contended that the evidence ought to be received. The indictment here was not for firing at with intent to kill—if it was, the evidence would be inadmissible; but the indictment was for actually killing, and the question the jury would have to try, even assuming that the prisoner fired the shot, was whether or not the operation was improper, and whether the operation caused the man's death, and not the wound.
The Lord Chief Justice here asked Mr. Butt whether his evidence was to establish a case of manslaughter, or to raise a mere question of medical or surgical skill?
Mr. Butt, with great respect, declined to answer a question as to whether they intended indicting the witness for manslaughter. Distinctly he meant to show that Dr. Stokes "violated every rule of surgery in performing the operation.” Mr. Butt added—“I intend to produce persons who were present at the operation-some of whom the witness has named as parties assisting him-who are men of greater eminence than he is, and to show that any operation to extract the ball that night was contrary to every rule of surgery under the circumstances, was highly dangerous to the life of the man, was calculated to lead to his death, and did lead to that death." He cited authorities in support of his proposition, and said he intended to offer evidence to show that the operations were unnecessary—that they were contrary to good surgery-and that they occasioned the hæmorrhage which resulted in death. He insisted on his right to give this evidence to the jury, who were the supreme tribunal to determine the question at issue.
Their lordships were absent from court for an hour consulting, and when they returned, rejected the evidence proposed to be given on behalf of the prisoner, but allowing (the Lord Chief Justice expressing dissent) evidence that the operation was unskilfully performed.
The surgeons who had acted with Dr. Stokes in his treatment of the deceased were next examined, and after them the resident pupils of the hospital, who had assisted in the operations. One of them, Mr. Vesey, produced his notes of Talbot's illness, but it was elicited that these did not agree with his " note-book," in which the entries were made from hour to hour as the symptoms of the patient were discerned. He was sent to the hospital for this book, and on further examination admitted that, along with Mr. Walker and Mr. Woodhouse, two other pupils, he had “ revised ” his notes, that they might all agree. This revision took place after the inquest on the body had begun, and when it had been ascertained that a legal question would arise as to the propriety of the surgical treatment.
After Mr. Parkinson, gunmaker, and Mr. Leadbetter, silversmith, had been examined with regard to the bullet extracted from one of the No. 7 Ely cartridges, and the fragments found in Talbot's body, which they pronounced to be both of the same description of lead, Mr. Butt proceeded to speak for the defence.
He dwelt particularly on the alteration of their notes by the hospital residents, and alleged that this was done to shelter Dr. Stokes. The speech was long and earnest, and ended with an appeal to the jury against being “swift to shed blood.” Mr. Butt said: “The issue of fact, of which the jury were the judges was-Did Kelly kill and murder Thomas Talbot? That on the night of 1st of July last, Thomas Talbot was wounded by a pistol ball there could be no question whatever. To sustain the charge contained in the indictment two things were necessary. Thomas Talbot must have been killed by a pistol shot, and that shot must have been fired by the prisoner. For the defence they said that he was not killed by the pistol shot, and further that there was no evidence that the prisoner at the bar fired that pistol shot." Having quoted from Brougham's speech in defence of Queen Caroline, as a justification for his free handling of Dr. Stokes, he continued :“They had heard the examination of last Saturday. He conducted that examination with pain-he looked back upon it with regret; but there was not a man in the box who did not know that alterations were made in the record of the transactions in the hospital, and that these alterations were made with a view to screen those who had conducted the operations upon Talbot. If he had had the notes of Mr. Vesey when he had cross-examined Dr. Stokes, that cross-examination would have assumed a very different form. If the facts were correct, Dr. Stokes would not have stated that it was not a piece of reckless surgery to conduct the operation as he had done. The man when brought to the hospital was weak from loss of blood and shock to the system.
What did Dr. Stokes do under the circumstances? What did he do, without asking one word from those medical assistants who would have told him that they thought ten minutes previously that the man was dying? The first thing he did was to probe the wound and cut it. If he placed Mr. Vesey's notes before any surgeon in the world, and asked him, was it reckless to probe and cut the man's neck when he appeared to be dying ten minutes before, he would say it was reckless in the extreme. What terrible light was thrown upon this by the notes of Mr. Vesey, which set forth that the man had to be lifted on to the table, seemed very weak from loss of blood, and had to be given stimulants—ammonia, whisky, &c. He seemed very weak from loss of blood.' This was omitted from the revised notes. Why? It was omitted after the inquest. Was it when it came to be known that the accusation would be made that Dr. Stokes caused the man's death ?”
A second discussion followed between the judges and the counsel with regard to the admissibility of the surgical evidence as to the cause of death, at the close of which the Lord Chief Baron said the Court would not allow a discussion to be raised on the question of the skill used in the operation, and the Lord Chief Justice, concurring, said, “ If the wound was mortal the whole inquiry into the judiciousness or injudiciousness of medical treatment would be futile. That was settled law."
Mr. Falkiner, Q.C., then addressed the jury on behalf of the prisoner, contending that the cause of death was the treatment in the hospital. After a passage of arms between the Chief Baron and Mr. Butt, Serjeant Armstrong replied on behalf of the Crown, telling the jury that they would have nothing whatever to do with the question of the operation in the hospital. If the prisoner fired the shot which caused Talbot's death, he would be guilty of murder.
On November the 10th the Lord Chief Baron charged the jury. He said the law provided that in every trial for homicide the cause of death should be shown to the tribunal. For this purpose the coroner's inquest is to be held immediately after the commission of the alleged offence. Having stated that it was their duty to give the prisoner the benefit of any reasonable doubt, still it was a solemn obligation on them also to inquire into all the circumstances and weigh the evidence carefully, and not to act on a mere doubt, which might only amount to a fancy of the possibility of innocence. The law did not define what was reasonable, but left that to the common sense of the jury--such common sense as they would apply in the ordinary affairs of life. The Court had felt bound to lay down a rule as to the law of the land on an important question in the trial, namely, that he who inflicts a dangerous wound is responsible for the consequences, whether death was mediately or immediately by the wound so inflicted. As that was the law, and after hearing a great deal of the investigation, the Court had felt bound to reject any evidence by which it was proposed to prove that death was occasioned by mistake in determining the operation, or in the process of it. There had been some misrepresentation respecting the words bona fides, as if the absence of bona fides meant mala fides. That, indeed, did not form part of the prisoner's defence, and if it did it would be absolutely extravagant, upon the evidence, to say that there was any wicked design on the part of Dr. Stokes, or those who assisted at the operation, to effect the death of Talbot by unskilful treatment in the progress of the operation.