the voice of the female prisoner; the door was open, and she was scolding REG. v. Bird the deceased something about the pig's-meat. During this time he also heard blows, and after the blows he heard the girl crying. As soon as she began to cry the door was shut. After that he heard more blows, and still heard the girl crying. A few minutes after the girl (deceased) came out; there was blood on her face. Witness spoke to her, and she showed him some marks in her left arm, just above the elbow; they appeared to have been made with a stick. There was also a mark across the neck of the same kind. The maid gave a knock at the door, and one of the little boys went. Presently mistress got up and went out to the girl, and told her in a loud voice, to wash off the blood from the back of her neck, directly. About three or four

Richard Hopper, a farm labourer of Buckland. weeks before I was examined by the magistrates, I saw the girl, who did not appear healthy then. I saw her the day after Christmas day; she then appeared very ill. I saw two or three drops of blood drop from her. On the back part of her head there was a cut. Sarah Bird came out, and told the girl to go in. The girl's shoulders and arms had bruises on them. I saw Sarah Bird flog the girl three or four weeks before Christmas, with a hazel, or nut stick, across the shoulders. About a fortnight before Christmas, I saw Bird strike the girl twice, with a furze stub, across the shoulders, and she cried.

Mr. Charles Colwell Turner.-I am a surgeon of Bideford, I have been in practice there nine years. I went into the room with Branch where the body lay, I caused her to strip the body. I saw on the legs and thighs several wounds, varying in extent, and apparently inflicted by some irregular weapon-it struck me by a birch. On the chest below Evidence for the left collar bone, were two slight bruises; his attention was also the prosecution. attracted to the discoloration of the face and forehead, which extended

from the left temple down the cheek. Also saw some wounds and abscesses on the arms, and also on the fingers; the skin over the bowels was also discoloured. The wound on the left arm was an abscess above the elbow, with the skin immediately around it discolored; it had the appearance of a bruise of long standing-perhaps a fortnight-and the abscess had burst. On the front of the same arm, below the elbow, was also an abscess, which was just forming. The nails on the little finger, and index or forefinger, appeared to have been gone some time. Those on the middle finger and fourth finger more recently, but all were gone. On the outer part of the right arm, above the elbow, was another abscess, which also had recently burst. The body was then turned over. On the right hip there was a large sloughing wound, about the size of the palm of the hand; and on the posterior part of the hips were several wounds, which appeared to have been inflicted some time; they were covered with plaster, on removing which they appeared to be old sores. Between the two shoulders were two trivial bruises. The outer layer of skin on the back, in some places, was separated from the inner, which I thought resulted from the serous part of the blood having exuded after death, from between the two layers of skin. From the state of the back and abdomen, I cannot specify how long the child had been dead when I saw it, but it had evidently been dead some days (on the Saturday). In giving that answer, I have taken into consideration the state of the weather, which at that time was extremely cold; that state of weather would retard the symptoms of decomposition in a dead subject. I was then desired by the coroner to make a post mortem examination, which I did




REG V. BIRD immediately. On removing the scull, I discovered another bruise at the back part of the head, which being covered with hair, I had not before noticed. There was considerable extravasation of blood, that had oozed between the scalp and the skull. On removing the skull, I found the membranes of the brain extremely congested; the skull itself was perfectly sound. On gently moving the brain, I found at the base extravasation of blood. I then examined the chest, the contents of which I found perfectly healthy, with the exception of a slight adhesion of the right lung to the side. The stomach was perfectly empty, and the different organs of the brain perfectly healthy, and in a normal state. I made no further examination, as I felt that I had arrived at the cause of death, which I attributed to external injuries on the head, causing the extravasation which I found within. From the external appearance of the wounds in the head, I can form no judgment of the way in which that violence was inflicted; it would certainly take much heavier blows to cause death in a healthy than an unhealthy subject, a strong rather than a weak constitution. The state of the deceased before death I should think was extremely reduced, and the effect of the external injuries which she had received, without taking the injuries of the head into consideration, would be to reduce the powers of life. These injuries would affect the nervous system, and the nervous system is connected with the brain.

Evidence for

the prosecution.

Cross-examined.-From the extent of surface of the wounds which I have supposed might have been inflicted by a birch, I consider they would have affected the nervous system. The wounds on the finger might, some of them, have been the result of frost bites, but not the cuts in the legs. The abscesses might possibly have been produced by constitutional debility, but the sloughs were the result of external wounds. Frost bites would not have caused the sloughs. A severe bruise might have produced the slough on the hips; a fall might, but not such a blow as might have been received against a bed post. The symptoms disclosed in examination of the brain were similar to those found in persons who died of apoplexy. Extravasation at the base is the most rapid in its effect; previous to extravasation there is congestion, and congestion, if the result of natural causes, could produce giddiness, and giddiness leads to falls; but he did not think that a fall merely on the floor, unless from a height, would produce such an extensive bruise as was found in deceased's head. A person labouring under incipient congestion would shun the light, the glare would be painful, and be an indication of the disease, if coupled with other symptoms. Observed no sign of a kick on the private parts, which were discoloured, but not from the effects of a blow. In cold weather, chaps of the skin very often became bleeding wounds. The blood spoken of by the witness Hopper might have resulted from natural causes. The frost-bitten fingers indicated a low state of the body, and a languid circulation, and that languid circulation tended to a congestion of the liver, the brain, or some important organ. It did not follow that languid circulation would be produced by taking a person from a confined place like a Workhouse, and exposing ber more to the open air. Wounds after death have a worse appeara..ce than they have before death.

Re-examined. The symptoms which witness had spoken of as appearing on deceased's back and abdomen could not have been produced before death, and showed that deceased had been dead thirty hours, at least. In witness's experience such appearances as he had described could not have taken place in less than three days. Incipient congestion of the


brain would depend very much on the nervous system of the subject. REG. v. BIRD Having examined the corpse, and heard the evidence, he thought, that incipient congestion might have arisen from the causes mentioned by the witnesses.

By his LORDSHIP. -Taking all the circumstances into consideration, he believed that the extravasation was caused by external injuries.

Mr. John Edye.-I have been practising as a surgeon in Exeter for twentysix years, and am also one of the surgeons of the Hospital. I have heard the evidence to-day. From the statement of Mr. Turner, I conceive he is correct in the opinions that he has formed as to the time which had elapsed between his visit, and the death of the child; but I should not like to speak positively unless I had seen the child. I concur with Mr. Turner in the opinion that he has formed as to the cause of death.

His LORDSHIP asked Rowe what he presented to the jury as to the cause of death. He had himself been certainly under considerable difficulty on the matter. He had thought that the kick spoken of by one of the witnesses was the cause of death, until the medical witnesses gave evidence to the contrary, and declared that death was caused by a blow on the head, producing extravasation of the brain, and resulting in death.

Rowe suggested that there was the treatment which had been spoken of, which had the effect of so lowering the frame, that death might have resulted from violence which would not have produced it in a healthy person.

His LORDSHIP thought that would involve the principle that one person having pursued a course of harsh treatment, weakening the constitution, another party would be liable to an indictment for murder, if he inflicted violence not likely in itself to cause death, and which would not have resulted in death, but for the previous violence inflicted by another party.

Rowe.-There is another proposition, whether death was not caused by incipient congestion of the brain, produced by a long series of bad usage. Mr. Turner stated that a series of acts of bad usage would affect the nervous system, and affect the brain, and render it more sensible of injury.

After some observations from Slade and Cox, it seemed to be the opinion of the counsel, as well as of his lordship, that the case could not be sustained, although there was no doubt that the poor girl had been ill-treated.




The learned JUDGE then addressing the jury, said he regretted Talfourd, J., not being able to allow this case to go to its legitimate termination, charge to the jury. but it was his duty to tell them at once he thought the prosecution had failed. He briefly reviewed the circumstances under which the girl had been placed in the family of the prisoners, in a lonely farm house. Up to a certain time, Mrs. Bird seemed to have been satisfied with her; at any rate, she said she was a good girl. But after that, a fearful change came over the transaction. She was seen to inflict chastisement, which, although his lordship did not

1850. MurderEvidence.

REG. v. BIRD for one moment approve of it, still, if it could be regarded as a ET UXOR. single instance of passion, might have excited but little notice. The girl appeared to have failed in health; she was found dead on the 5th of January, and lamentable injuries were on her person. There must probably have been some violence used by some one, or some neglect. If, in Mr. Turner's judgment, the external injury he saw had directly contributed to death, then the jury would have had to consider the conduct of the prisoners, as bringing home to them either manslaughter or murder; but to sustain either of these charges, it must first be distinctly made out that the unlawful act of the prisoners was the cause of death. Now two gentlemen of skill had been called; one had examined the head, and found the cause of death there, namely, the pressure of blood on the brain, or that which is commonly called apoplexy; an overcharge of the vessels upon the brain till they burst, and there is an effusion of blood on the brain which stops the functions of life; and he attributed this to the injury at the back of the head which was either from a blow or a fall. There was no proof of any actual injury inflicted which could be the cause of death, except the injury at the back of the head. Now if that injury proceeded from a kick or blow inflicted by either of the prisoners, no doubt it would be manslaughter or murder. It would be murder if done with a weapon likely to endanger life, or with the purpose, disposition, and determination to kill or to do some grievous, serious, and permanent bodily harm. If it had been a sudden act of passion, or a gross and brutal excess of chastisement, that had occasioned her death which had not been contemplated nor reasonably to be expected, then it would have been aggravated manslaughter. But the difficulty here was, there was no proof at all who it was that gave the blow. It was true, the jury might indeed suspect it was one of the prisoners, as there was no one else in the house but the old man, the uncle. In the absence, however, of all proof, his lordship could not direct the jury that there was any evidence that affected one more than the other of the persons at the bar. Each of them

Talfourd, J., charge to the jury.

had chastised the girl before, and either might have inflicted the blow. But the case was in this difficulty, which he thought fatal to the prosecution. He could not direct them there was anything to lead them to connect one of the prisoners more than the other with that which was clearly by the evidence the cause of death. If it was inflicted by one, the other aiding, both would be guilty; but in the total absence of all proof of that kind, his lordship could see nothing to direct the jury to either. The case indeed presented considerations which, he confessed, made him lament that he was not in a situation to leave this question to the jury; for the circumstances called for solemn and deliberate inquiry, and he deplored the case being left in such a state of uncertainty that he could not direct them to say whether there was any evidence that both inflicted the blow, or, if one, which inflicted it, or at what time, and under what circumstances. Therefore, he was bound to tell them he thought the case for the prosecution had failed in bringing





home that fatal blow, to which the surgeons attributed death, to REG. v. BIRD either of the prisoners at the bar. If the death had been caused by want of food, then the male prisoner alone would have been guilty, for it was his duty to provide proper sustenance. If death were caused by accumulated wrongs and injuries during the time she was in the house, that would have been another question. But, as the medical man had stated that the death was caused by effusion of blood, and that by external violence; and as there was no proof how or by whom that violence was inflicted, it seemed to him that the case had failed, and therefore, however they might regret that they could not enter into it on moral considerations, he was bound to tell the jury that, there being no proof which of them did it, they could not legally convict either, and consequently both must be acquitted.

Verdict, Not guilty.



Exeter, August 5.

(Before R. GURNEY, Esq., Q.C.)


Autrefois acquit-Practice-Counsel-Evidence-Bail-Case reserved. To sustain a plea of autrefois acquit, it is not sufficient merely to put in the record of the first indictment and acquittal. Some evidence must

be given to show that the offences charged in the former and present
indictment are the same, and this may be done by showing, by some
person present at the former trial, what was the offence actually in-
vestigated there; and if that is consistent with the charge in the second
indictment, it will be a presumptive case, which must be met by the
prosecution by proof that the offence charged in the second indictment
was not the same as that charged in the first.

The counsel in the case may be examined, to show from his notes, taken
at the former trial, what was the evidence then given.
Where a case has been reserved for the Court of Appeal upon a con-
viction for an assault with intent to commit a felony, the court will
not deem itself bound to admit the prisoner to bail until the decision of
the point reserved, even although the offence is only a misdemeanor,
and the prisoner was admitted to bail of right previously to the trial.
THE same prisoners were again indicted for assaulting the said
Mary Ann Parsons on several occasions between the 5th Novem-

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