State v. Mitchell.

been decided by this court. See Battle's Digest, Title Evidence, sec. xxvi, p. 505.

The confession proposed to be proved in the present case must be regarded as coming under the head of voluntary confessions. The prisoner himself commenced the conversation which led to his confession. When the prisoner said to the witness, "I want to know what to do," he must have been aware that the witness could not tell him without knowing the circumstances of his case. When the latter told him so,

therefore, he only told him that which he already knew; and what he, thereupon went on to state to the witness was not induced by any hope of advantage held out to him by the witness, but by the suggestion of his own mind to get the witness' advice as to the course he ought to pursue. So far from being under any influence to make a false statement, he had the strongest motive to tell the truth, so that the advice of his acquaintance might be of service to him. In this view of the question, the mistake of the witness as to the law about one prisoner testifying against another, cannot make any difference. The prisoner could not thereby have been in the least induced to make a false statement of the facts and circumstances of his case. All that can be said is, that he found himself placed in a difficult and dangerous position, and wanted the advice of a friend as to the best course to be pursued for his relief. To obtain that advice he voluntarily unbosomed himself to a person who he thought might be trusted, but who afterwards proved treacherous and disclosed his secret. We do not know of any such ground for excluding confessions, and think the Judge was right in admitting them.

It must be certified that we find no error in the record.


No error.

State v. Leak.


Where the nurse of an infant, knowing that laudanum was poison and likely to kill, gave the child enough to kill it: held (nothing else appearing to qualify the presumption of law) that she was guilty of murder.

MURDER, tried before Warren J., at Fall Term 1867 of the Superior Court of RICHMOND.

The prisoner was the hired nurse of the deceased, a child some six weeks old. It was shown that some days before the laudanum was administered the child's mouth and clothing had marks of blueing upon them, although the nurse had been told that it was poison. Upon being questioned about it, she had given an improbable account of the manner in which it had occurred. On the 3d of August 1867, the child's mother, upon going to dinner, left the nurse and child alone. Shortly afterwards the child, which had been perfectly well when left, screamed violently, and the nurse began to sing as if to drown the noise. Upon going into the room, the mother found the vial of laudanum uncorked and the laudanum shaking; and there was laudanum upon the child's mouth and dress. Upon being charged with giving laudanum to the child, the prisoner denied it, saying she had not given it a drop, that she had been smelling it and dropped a little upon its dress. A physician was then sent for. The child went to sleep in half an hour, and did not awake again, dying about 2 o'clock the next night.

The prisoner had been told a day or two before that the laudanum was poison; the bottle was then shown to her as poison, and she was directed to take it from a bureau and

State v. Leak.

place it upon the mantle-piece. There was no one in the room with the child but the prisoner. The child was healthy and had never taken laudanum. Other evidence was given to show that the prisoner had administered the laudanum, but it is not material to state it.

The prisoner's counsel requested the Judge to charge— 1. That if the prisoner gave the laudanum in order to put the child to sleep, the case was one neither of murder ⚫ nor manslaughter, but of misadventure only.

2. That if in giving the laudanum the prisoner intended neither to kill it, nor to do it great bodily harm, she was not guilty of murder.

3. That if she administered it carelessly, or by way of experiment only, she was guilty of manslaughter only.

The court refused to give the first instruction, and told the jury that there was no evidence in the case to which it was applicable. The second instruction also was refused, and the court charged that if the prisoner gave the laudanum knowing what it was and that it was likely to kill, the law presumed malice and the case would be one of murder; but that if she did not know the character of the laudanum as a poison, &c., it would be no more than manslaughter; that upon this point the burden of proof was upon the prisoner. The court gave the third instruction substantially as

asked for.

Verdict, guilty; Rule for New Trial discharged; Judgment, and Appeal.

Phillips & Battle, for the prisoner.

Atto. Gen., contra.

READE J. The first exception to his Honor's charge was properly abandoned in this court, as there was no evidence to which it was applicable.

State v. Leak.

The second exception is liable to the same objection, and to the further objection that, while his Honor did not give the charge upon the abstract proposition as asked, yet he did give such a charge as fitted the evidence.

The evidence was that the prisoner had been told a few days before that the laudanum was a poison. We may suppose that she also knew that it was a medicine, but that there was no occasion to use it as a medicine, inasmuch as the child was in good health, and no laudanum had ever been given to it. She must have poured the poison out of the vial into the child's mouth, as there was no cup or spoon. When the mother ran into the room when she heard the child's scream, the prisoner was standing, with the child in her arms, nearthe vial, which had just been set down uncorked, the liquid being still in motion. The poison was in the child's mouth and upon its clothes. The prisoner tried to drown the child's scream, and when the mother charged her with giving the child laudanum, she denied it, saying, she had been only smelling it and spilt it on the child. She knew it was poison. She knew poison would kill. She poured it down the child's throat, and attempted to conceal what she had done by a falsehood. There was not a single fact in the case tending to show that the prisoner did not know that it was poison; or, that she did not intend the reasonable consequence of her act. How could his Honor leave it to the jury to suppose that she did not intend it? If A deliberately point his gun at B, and discharge it and kill him, could his Honor charge the jury that if he did not intend to kill, he would not be guilty? When an act is proved, and there is no evidence of accident, the question of accident cannot be left to the jury any more than any other fact upon which there is no evidence.

His Honor charged substantially, that if the prisoner knew that it was poison, and that it was likely to kill, and gave it under the circumstances detailed, and it did kill, she

State v. Rhodes.

was guilty. We think this gave the prisoner the benefit of every consideration to which she was entitled. The proof was that she knew it was poison; that there was no reason why she should have given it as a medicine, she did not pretend that she had so given it, but denied that she had given it at all. The reasonable consequence was killing; it did kill; there was no evidence that she did not intend to kill; and therefore it must be taken that she did intend to kill. There is no error.

Let this be certified, &c.


No error.


The laws of this State do not recognize the right of the husband to whip his wife, but our Courts will not interfere to punish him for moderate correction of her, even if there had been no provocation for it.

Family government being in its nature as complete in itself as the State government is in itself, the Courts will not attempt to control, or interfere with it, in favor of either party, except in cases where permanent or malicious injury is inflicted or threatened, or the condition of the party is intolerable.

In determining whether the husband has been guilty of an indictable assault and battery upon his wife, the criterion is the effect produced, and not the manner of producing it or the instrument used.

(S. v. Hussy, Bus. 123; S. v. Black, 1 Wins. 266, cited and approved; S. v. Pendegrass, distinguished and approved.)

ASSAULT AND BATTERY, tried before Little J., at Fall Term 1867 of the Superior Court of WILKES.

The defendant was indicted for an assault and battery

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