Trial of William Burke and Helen M‘Dougal. (continued 2)
Reading edition
Q. Did you go on the next morning to Burke’s house? A. Yes, my brother sent me for Burke, and I went and inquired for his house at Mrs Law’s.
DAVID PATERSON, Examined.
Q. Where do you live? A. At No. 26, West Port.
Q. What is your occupation? A. I am keeper of the Museum of Doctor Knox.
Q. Do you know the prisoner? A. Yes.
Q. At what hour did you go home on the 31st October?
A. About twelve.
Q. Did you find any person at your door? A. Yes, the prisoner; he told me he wanted me to go to his house.
Q. Did you go? A. Yes.
Q. Did you find people there? A. I found Burke and another man and two women.
Q. After you went in, what passed? A. The prisoner told me he had procured something for the Doctor, pointing to the head of the bed, where there was some straw; he said it in an under voice. I was near him at the time.
Q. Was any thing shewn to you at that time? A. Nothing.
Q. What did you understand he meant? A. I understood him to mean a dead body, a subject.
Q. What were his exact words? A. His words were—“There is something for the doctor (pointing to the straw) which will be ready to-morrow morning.”
Q. Was there sufficient straw to cover the body? A. There was.
Q. Was that woman, the prisoner at the bar there, (pointing to Mrs M‘Dougal?) A. She was.
Q. Would you know the other two persons who were present?
A. Yes.
Hare and his wife being brought in.
Q. Do you know these people? A. I know them by the name of Hare, they are the other persons that were at Burke’s house that night.
Q. Had you any further conversation with Burke, while you remained there? A. No, but I sent my sister for him in the morning, and he came alone about nine o’clock.
Q. What did you say to him when he called on you? A. I told him if he had any thing for Dr Knox, to go to himself, and agree with him personally. I afterwards saw the prisoner Burke and Hare in Doctor Knox’s Rooms in Surgeon’s Square, along with Doctor Jones, one of Doctor Knox’s assistants. This was between twelve and two.
Q. Did any thing pass there? A. Either Burke or Hare told Dr Knox, they had a dead body for him, which they would deliver there that night; and I had orders from Doctor Knox to be in the way to receive it, or any parcel that might come. I was there about seven, when Burke and Hare, and a porter named M‘Culloch, brought a tea-chest. They carried it in, and it was put in a cellar, (Mr. Jones was present,) and when it was locked up, I went to Newington to Dr Knox, and told him the parcel was delivered. Hare, Burke, and the porter had either gone before or followed. I saw them when I came out of Dr Knox’s house. He gave me Five Pounds to give the men, with orders to divide it between them, and in order to do so, I took them to a public-house, and got change, and gave each Two Pounds Ten Shillings. They left something for the porter. It was understood they were to return on Monday, by which time, if Dr Knox approved of the subject, they would get the remainder of the price, which I believe, was Eight Pounds.
Q. Did you hear the prisoner say any thing about women? A. Yes.
Q. Did you see any women loitering about? A. No.
Q. What happened after? A. The next morning, Sunday, Lieutenant Paterson and Sergeant Fisher of the Police came to me, and I went to Dr Knox’s cellar along with them, and gave them the package which was left there the night before.
Q. Was it still roped? A. Yes, as it had been received.
Q. Did you assist at the opening of it? A. Yes, and found it to contain the body of an elderly female, apparently fresh and never interred. The body was doubled up in the box, all the extremities doubled on the chest or thorax for want of room.
Q. Describe the state when it came out of the box? A. I examined all the body externally, stretched on a table. The face had a very livid colour, there was blood flowing from the mouth. The appearance indicated evident marks of strangulation, or suffocation from pressure. I found no external marks on the body that might have caused death.
By the Court.—Q. Did the eyes project? A. No.
Q. Was the tongue hanging out? A. No.
Q. Was there any marks about the throat? A. No.
Q. Was there any injury about the lips and nose? A. Yes, they were dark coloured and marked with blood.
JOHN BROGGAN Examined.
Was at Burke’s the morning after the murder. Saw Burke spill spirits about the room, and detailed several indecent speeches of Mrs Burke, about the way she got a shot of the old woman. He was desired by Burke to remain, but did not.
Mrs GRAY Examined.
Q. Do you know the prisoners Burke and M‘Dougal? A. Yes.
Q. You lodged in their house at the end of October? A. Yes.
Q. You saw a strange woman there? A. Yes.
Q. What had she on? A. A dark printed gown, and a pink bed-gown over it.
[Witness was shewn the clothes, and identified them.]
Q. You saw the little woman there once or twice on Friday?
A. Yes.
Q. Did Burke say how he met her? A. He said, he met her in a shop at nine or ten that morning.
Q. Did you remain at Burke’s house that night? A. No; Burke told me I should leave the house for that night as my husband and I were quarrelling; and if I would go, he would pay my lodgings, and he said I was to go to William Hare’s. I went away with Hare’s own wife, and returned about nine o’clock for some things of my child’s. Hare and Burke were dancing, and Mrs Docherty was singing to them. In the course of the day Mrs Docherty wanted to go out, but Mrs Burke would not let her.
Q. At what time did you return to Hare’s? A. Almost immediately.
Q. Did Hare and his wife come home? A. Yes, and Mrs Burke came to supper; after that they all went out together, and the Hares did not return that night. The first thing in the morning that occurred, was Burke coming to my husband to give him a dram. Then went to Burke’s house and saw there a number of people, but not the old woman. I asked where she was, and was told, Mrs Burke had turned her out as she was drunk.
Q. When you went to the house, did you go back for any thing? A. Yes, for a pair of my child’s stockings. When looking for them, Burke told me “to keep out from there;” that is, from the straw. There was whisky then used. Burke threw it about, and said he wanted to get quit of it to get more. Burke then ordered me to put on some potatoes; and I went to reach under the bed for some, when Burke told me to come out of that, I might set the bed a-fire with my pipe.
Q. Was Broggan there? A. Yes, during the day, and Burke desired he would sit there, on the chair next the straw, until he Burke came back again.
Q. Did Broggan remain? A. No, he only stopped a few minutes.
Q. Did Burke bid you clean the house? A. No; but I said it would be better to wash the floor, and put a little sand on it.
Q. What did you do after Broggan went out? A. I went to look for Burke, but I could not find him. I went out again, and met him at the West Bow, he went to take a dram.
Q. Did you discover a dead body in that house after Broggan went out? A. Yes.
Q. Where did you find it? A. Under the straw at the foot of the bed.
Q. Why did you go back? A. Because my suspicions were raised at seeing Burke throw the spirits about, and I was determined to see what it meant. The first thing I seized hold of, was the woman’s right arm. My husband took her up by the hair of the head, the body was naked, and there was blood on the nose and mouth. My husband went away before me; he met Mrs Burke on the stair, and told her what he had seen, and asked her about the body. She told him to hold his tongue, and it might be worth Ten Pounds a week to him.
Q. Did you say any thing to Mrs Burke? A. Yes, I spoke to her about the body, and told her, that was the woman who was well, singing on the floor; and she bade me hold my tongue, and she would give me Five or Six Shillings. She repeated the words again, and said, if my husband would be quiet, it would be worth Ten Pounds a week to him. I said that I would not wish to be worth money got for dead people.
Q. Did your husband give information after that to the police? A. Yes.
Q. You saw the body there? A. Yes.
Q. Was it the same? A. Yes.
Q. Did you return with Mrs. Connaway to Burke’s? A. No, I sent her in, but did not go myself.
Cross-Examined by Sir James Moncrieff.
Q. Did you sleep in Burke’s house on Thursday night?
A. Yes, on the bed of straw.
Q. Did you continue there all the forenoon of Friday?
A Yes, I never went out but for a stoup-full of water.
Q. What time did you go to Hare’s? A. About dark.
Q. Did any one ask you to come back to Burke’s that night? A. No, I thought as it was Halloween night they did not wish to have me amongst them.
Q. Who went with you to Burke’s at the time you say you went for your child’s clothes? A. My husband. It was about nine o’clock, we did not stop many minutes.
Q. Were they all making merry? A. Yes, they were dancing and singing.
Q. Do you remember was Mrs. Connaway there? A. No.
Q. You went away in a few minutes? A. Yes.
Q. You say that Hare afterwards came home, with Mrs. Hare and M‘Dougal? A. It was before I went back for the clothes and not after.
Q. Did they ask you to come and have some sport with them? A. No; next morning Burke came, and went out to give my husband a dram, and he told us to come down to breakfast, and we did.
Q. When you went down to breakfast, did you see Hare or his wife then? A. No.
Q. Are you sure? A. Quite sure, she came home before I went to breakfast. I did not get up until eight o’clock.
Q. Did M‘Dougal say any thing to your husband or yourself about the body when it was found? Did she say, My God I cannot help it? A. Yes, I recollect now, she did.
Q. Did these words follow her offer of the ten pounds a week? A. Yes.
By the Court.
Am I to understand she said, “My God, I cannot help it,” after you said you did not wish to make money by dead people? A. Yes. [Here she recapitulated her evidence in a very distinct manner.]
Q. Did the woman make no reply, when you said the woman was dead, whom you saw well and singing the night before? A. No.
Q. What did you say after? A. I said, if she could not help it, she ought not to remain in the house.
Q. Were these words, “My God, I cannot help it,” used after M‘Dougal had spoken to your husband of ten pounds a week, and he had refused to be silent? A. Yes, it was after the offer of money; and I said, did she mean to bring a family to disgrace, that prisoner replied, “My God, how can I help it.”
JAMES GRAY, Labourer, Husband of the foregoing Witness, Examined.
Q. You lodged at the prisoner’s house? A. Yes, for a few nights at the end of last October.
Q. Do you remember Burke having any conversation with you about sleeping out of his house on the 31st of that month?
A. Yes, Burke said we must go out that night, that he had provided a place for us, and that we might come back in the morning to breakfast.
Q. Did he give any reason for desiring you to leave his house that night? A. No, not that I recollect. He took us to Hare’s, and pitched on a bed he used to occupy himself.
Q. Did you know that Burke brought in a strange woman that morning before, and ordered breakfast for her? A. Yes. He said, he suspected she was some relation of his mother’s, as she had the same name, and was from near the same place.
Q. Did you return the night you left Burke’s? A. Yes, about nine, with my wife, where we saw a good number of people at Burke’s; we stopped a few minutes. Next morning Burke came, and my wife and I went down to breakfast.
Q. In the course of that Saturday, was you present when your wife found a dead body? A. Yes, it was covered with straw, and lying near the head of the bed.
Q. Was it the woman you saw there the night before? A. Yes. I then packed up my things that were there, and was on the point of taking them to a house opposite, when I met Mrs. Burke, I asked her, what was the meaning of that thing I saw in her room. She asked what; I said, I suppose you know, the body. She then fell upon her knees and supplicated me, offered me five or six shillings, and said, if I held my tongue, it might be worth ten pounds a week to me. I said, my conscience would not allow it.
Q. Did she say the same thing to your wife? A. Very near.
Q. Did she say she could not help it? A. She did.
Q. After this conversation, did your wife and you leave it?
A. Yes. Mrs. Burke followed us up to the street. We met Mrs. Hare; she asked us what we were quarrelling about, and desired us to go into a house and settle our dispute. We did go, and shortly after I went straight to the Police.
By the Court.
Q. When you saw the body, did you know it to be the woman who was there the night before? A. Yes; it was quite naked. There was blood upon the mouth.
Cross-Examined.
Q. What hour was it when you left Burke’s house first, on the evening of the 31st? A. About five in the evening.
Q. What hour did Burke come for you in the morning? A. I think about seven.
Q. Was Burke in Hare’s at supper? A. No; but Mrs. Burke was. The Hares had left before Burke came.
GEORGE M‘CULLOCH Examined.
Q. You are a porter? A. Yes.
Q. Did the prisoner Burke come to you to carry a parcel for him at the end of October last? A. Yes. Q. Where did you go first? A. To Burke’s house. We went into his room, where we got a box like a tea-box; he took something in a sheet, and put it into the box. Q. Was it like the shape of a human body? A. I think it was. Q. Had you no doubt it was a body? A. No. Q. Did you assist? A. No; but when the body was putting in there was some hair which I pushed in. Q. When the body was putting in the box was there violence used? A. Yes. Q. Was there another man there? A. Yes, of the name of Hare.
Q. What became of the sheet? A. It was left where the body was carried to. (The witness was shown a box.)
Q. Was that the box? A. The very box.
Q. Was the hair long? A. No.
Q. Did you carry the box? A. Yes.
Q. Did the prisoner follow you? A. Yes. He told me to go towards the High School Wynd.
Q. Did you go? A. Yes.
Q. Did any person join you? A. Yes, the prisoner and his wife, and Hare and his wife.
Q. Then you went to Surgeons’ Square? A. Yes, and took the box off my back. Q. What hour was it? A. It was half-past six.
Q. Where did you go after? A. To Newington.
Q. Who went with you? A. The prisoner, Hare, and their wives.
Q. Did they separate from their husbands? A. Yes.
Q. You saw a person of the name of Paterson?
A. Yes. We went into a public-house, and he shared the money between the prisoner and Hare, and gave me five shillings for my trouble. When we came out the women were gone.
JOHN FISHER, Examined.
Q. You are a police officer? A. Yes.
Q. Do you remember a person coming to the office? A. Yes.
Q. Where did you go with him? A. To William Burke’s.
Q. What did you go there for? A. To make inquiries, as I heard the body was removed; I met Burke and M‘Dougal on the stair, I bade them come down, I wished to speak with them. I asked Burke what had become of his lodgers? He said, there is one (pointing to Gray) and that he turned them out for their bad conduct. I then asked what became of the little woman that was there on Friday? He said she left at seven in the morning. I asked him if any person saw her go away? He said, William Hare. I asked if any one else saw her go? He then looked insolent, and said, many saw her go. I saw marks of blood on the bed, and asked how they came there. M‘Dougal said a woman had lain in there a fortnight ago. She said she knew where to find the little woman, she lived in the Pleasance. She saw her that night at the Vennel, and she apologized for her bad conduct. I asked her what time she left, and she said at seven o’clock at night. I then decided on taking them to the office, which I did, on a pretext that it was all a matter of spite against them, and if they would come to the police office, it would be all cleared up.
Q. Did you return to Burke’s house that night? A. Yes, with the Superintendant and Dr. Black.
Q. Did you examine the house? A. Yes.
Q. You found a striped bed-gown on the bed. A. Yes.
Q Was that it?—(The bed-gown was exhibited.) A. Yes.
Q. Did you find any blood? A. Yes, amongst the straw.
Q. Did it appear to have been long there? A. No.
Q. Next morning you went to Dr. Knox’s with Paterson? A. Yes.
Q. And what did you find?
A. The body of an old woman quite naked. We sent for Gray to see if he knew the body, and he identified it. We afterwards returned in the day and removed the body to the police-office.
Q. Was the body shown to the prisoners? A. Yes.
Q. They denied all knowledge of having seen it, dead or alive? A. Yes.
Q. Did you go to Burke’s house again? A. Yes, and found an old gown and a bag.
Q. Were these the articles? (They were exhibited.) A. Yes.
Q. Was the body after examined? A. Yes, by Dr. Black, Dr. Christison, and Dr. Newbigging.
Cross-Examined.
Q. Did Hare deny all knowledge of the bodies? A. Yes.
Q. And his wife? A. Yes.
WILLIAM HARE (or HAIRE) Examined.
WILLIAM HARE (or HAIRE) a socius criminis, was now brought forward, and his entrance into the witness’s box produced a great sensation in the Court. He was first sworn according to the form used in Scotland, and warned in the most pointed manner to speak the truth, for if he was found to deviate the least from it, the most condign punishment would await him.
Q. You are a Roman Catholic? A. Yes.
Q. Would you wish to be sworn in any other way? A. I never took an oath before, I believe it is all one way.
(He was then sworn upon a New Testament, with his right hand on the Cross.)
Q. How long have you been in this country? A. Ten years.
Q. How long have you been acquainted with the prisoners? A. About twelve months.
Q. Is your house near Burke’s? A. Yes.
Q. You remember last Halloween? A. Yes.
Q. Were you drinking in a public-house with Burke? A. Yes.
Q. What did he say? A. He asked me to go down to his house to see what a shot he had got for the Doctors. He said he got an old woman off the street, and she would make a good shot for the Doctors. He told me to go down to the house and see if they were drinking, for he did not like to go.
Q. What did you understand by a shot for the Doctors?
A. That he was going to murder her.
Q. Did you go down? A. Yes, I found a man and a woman and Nelly M‘Dougal, and the old woman washing her short-gown.
Q. Was the strange man’s name Gray? A. Yes.
Q. What colour was the short-gown? A. Reddish striped.
Q. Is that it? (The gown was exhibited.) A. Yes.
Q. Did you remain long there? A. Five minutes, and then went home.
Q. Was you in Connaway’s after that? A. Yes, between eight and nine o’clock.
Q. Who was at Connaway’s? A. There was William Burke and Broggan, and another chap I did not know, and my wife, John Connaway, and Nelly M‘Dougal. The little old woman was left at Connaway’s, where they had some drink.
Q. Had you some? A. Yes, we then went to Burke’s, and Burke and his wife and the old woman came in; we were all hearty.
Q. Did you then expect the old woman was to be murdered? A. No.
Q. You had a quarrel with Burke? A. Yes, he struck me on the mouth, and I struck him again, the woman came between us, he pushed me on the bed twice and I remained on the bed; the old woman got up and wished Burke to sit down, as he treated her well; she said she did not wish to see him ill used; she run out before this to the passage and cried out either murder or police.
Q. How was she brought back again? A. It was Nelly M‘Dougal that brought her back both times.
Q. When you were struggling, did you knock the old woman down? A. Yes, and she lay on her back, so drunk she could not get up, she cried to Burke to quit.
Q. Did he quit you? A. Yes.
Q. What did he do then? A. He got on the old woman with his breast on her head, and kept in her breath, she gave a kind of cry and moaned a little after the first cry.
Q. How did he apply his hands to her? A. He put one hand on her nose and the other under her chin, and stopped her breath, he continued this for ten or fifteen minutes.
Q. Did he say any thing while this was going on?
A. No, he then got up and put his hand across her mouth and kept it there three or four minutes; she appeared quite dead then.
Q. Was you looking on all this while? A. I was sitting on the chair.
Q. Did he strip the body? A. Yes, and put the clothes under the bed, he then doubled up the body, and put the straw on top of her near the head of the bed.
Q. While you were sitting on the chair and he was murdering, where was your wife and M‘Dougal? A. When they heard the first screech they leaped out of bed and run into the passage, and did not come in until the body was put away.
Q. Where were you? A. I was sitting at the head of the bed when they both lay down and covered themselves with the quilt.
Q. Did you see any blood at that time? A. No.
Q. Did any body come to the door when the woman cried in the passage? A. No.
Q. Before the women sprung up was Burke long on the woman? A. A minute or two.
Q. Did any one go to Burke to try and save the woman?
A. No one.
Q. Who went out first? A. My wife.
Q. And M‘Dougal followed after? A. Yes.
Q. Could any one have prevented Burke without your seeing them? A. No.
Q. Did the women make any inquiries when they came into the room? A. No, they both went to bed. Then Burke went out after the woman was laid aside, and stopped out ten minutes.
Q. Did any body come back with him? A. Yes, the Doctor’s man, Paterson.
Q. Did Burke say any thing to the Doctor’s man?
A. Yes, he wanted him to look at the body. Paterson said it would do very well, to put it in a box; he would not look at it. I don’t know when Paterson went away, I fell asleep.
Q. Were you tipsy? A. I knew what I was about.
Q. What time did you awake? A. Between six and seven in the morning. I was sleeping on the chair, with my head on the bed; the two women and John Broggan were in bed; he lay next his aunt, Nelly M‘Dougal. Burke was sitting at the fire. After this I went home, and found Gray and his wife at my house; they had had a bed there that night.
Q. Did Burke come to your house the next morning?
A. He did. We went to get our morning; he asked me to go to Surgeons’ Square to get a box.
Q. Did you get a box there? A. No. Burke then said he had one bespoke from Mr. Rymer’s shop-boy. We got a box, and the porter brought it in. Burke was not in then. We left the box, and stopped at the back door until Burke came. When he came he asked me what I was doing, that I did not get it into the box. He then went in, and drew the body from under the bed, and the porter helped to put it in; there was some hair hanging out, and the porter put it in; and said, it was bad to let it hang out. The porter then carried it away to Surgeons’ Square. It was roped. (That box in Court is it, or like it.) I went with the porter, and Burke went for the Doctor’s man. They came to Surgeons’ Square, and we went in with the box. We put the box in a cellar, and then we went to Newington to the Doctor. Mr. Paterson went in, and he afterwards came out and asked if we would go to a public-house, he had money for us. We saw our wives following us, but they did not come into the house. Paterson gave the porter 5s. and each of us L.2, 7s. 6d. We were to have five pounds more on Monday. I saw nothing very particular until I was taken up.
Cross-examined by Mr. Cockburn.
Q. You say you have been ten years in Edinburgh? A. Yes.
Q. How have you been engaged?
A. I have been a labourer, and sometimes employed in selling fish with a cart and horse.
Q. Have you been engaged in supplying bodies to the Doctors? A. Yes.
Q. Have you been concerned in supplying the Doctors with subjects on other occasions than that you have mentioned?
The Lord Advocate objected to the question.
Mr. Cockburn.—I hold that I am entitled to test this Gentleman’s credibility with the Jury, and with that view I shall endeavour to make him confess such acts as will make his evidence go for nothing. I purpose to ask him if he was concerned in any other murder except this one.
Lord Advocate thought the Dean of Faculty had agreed to confine himself to this case.
Lord Meadowbank thought that such a line of conduct could not be pursued. The question was neither a fit nor proper one.
Mr. Cockburn.—In general, evidence is adduced because it is entitled or presumed to be entitled to credit. Now, it is monstrous to suppose that I should not be allowed to shake the credit of a human being in respect to his evidence. (He then quoted a case lately tried in England, where a witness in a similar circumstance was examined and acknowledged that he had been guilty of the most atrocious crimes; in consequence of which his evidence was totally discredited.)
Mr. Alison replied, the law of England was in no point more opposed to the law of Scotland than in regard to evidence. A witness here could not be called on to answer for his whole life and conversation. The utmost license was allowed in England in cross-examination, but it is contrary to the uniform and fundamental law of Scotland.
Dean of Faculty.—I completely agree with my Learned Friend. Our object is to discredit, not to disqualify the witness. We wish to propose a question to try the veracity of this witness. The witness was warned that he was standing on his oath, being peculiarly situated, but it may happen in most cases that he will answer it, and answer falsely. If he answers truly, it will be for his credit; if falsely, it will then be for the benefit of my client.
Lord Meadowbank.—I regret having stated the impression made upon my mind by the bare announcement of the question proposed to be put to the witness, because I should most assuredly have rather, in a matter of this vast importance, have desired to obtain every light that could have been thrown upon it before I ventured to deliver my judgment regarding it. But perhaps my having done so had only the effect of my attention being more anxiously called to every word that dropt from my brethren at the bar, and if I were satisfied that if any thing that was suggested by them had the effect of shaking the opinion which occurred to me at first, nothing that I stated before could have prevented my honestly and frankly avowing it. I have, however, been confirmed in that opinion by finding that notwithstanding all the ingenuity of my learned brethren, they have said so little on the subject, and that they have been unable to show one single precedent in favour of their argument, except that which has been obtained from the law of England. Now, I for one throw the law of England altogether out of the question. It is, I believe, in matters of this kind diametrically opposite to ours. That law holds, that a witness has no protection from having been examined by the Public Prosecutor, on a criminal trial. We hold, that he has. It is quite absurd, therefore, to dream of drawing a precedent, which is to guide your Lordships, from the law of England. But even our law goes no farther than to protect witnesses from being subject to prosecution on account of matter immediately connected with the subject of the trial in the course of which they are examined. I understand it, therefore, to be admitted that, if the question proposed were admitted by your Lordships, the witness must be told that he is not bound to answer it, because it is beyond the competency of this Court to afford protection against being afterwards questioned for the perpetration of crimes which do not form the proper subject of inquiry in the present investigation. But I have always understood that the law of Scotland has gone a great deal further—that it allows no question to be put which a witness may not competently answer, and which, if answered, must not be sent to the Jury as a matter of evidence. Now, in the first place, I admit that it is quite competent for the prisoner to put any question relative to the matters at issue by which he apprehends that the credibility of the witnesses for the Crown, may, if answered, by possibility be shaken. The oath taken by the witness, binds him to speak the truth, and the whole truth; but that obligation goes no further than it refers to the matter before the Court. It neither does, nor has it ever been held, to bind him to speak to matters relative to which he has not been called legally to give evidence. I apprehend, therefore, that even the oath which has been imposed upon the witness, is not obligatory upon him to speak to matters not immediately connected with the subject of this trial—and, in fact, such was the opinion of the Counsel for the prisoners; for, upon their application, the witness was particularly warned that he was only required to speak the truth, and the whole truth, relative to the third charge in this indictment. I have always understood, however, that no question could be put, upon cross-examination, to a witness in this country, which would, if answered, have the effect of rendering him in truth inadmissible. All questions having that effect must be put as preliminary, and after the questions put to all witnesses by your Lordships before the examination commences. In that respect, very likely, we differ from the law of England; but, for the reasons assigned by Mr. Hume in the passages read by Mr. Alison, I am not inclined to think that the rules of our law are inferior, or less effectual for the administration of justice. The object of our law has always been to get at the truth, and I suspect that is best to be obtained by preventing witnesses being harassed in the way that would result from such questions as the present being held to be admissible. But further still, suppose, in the second place, that the witness answers the question that has been put in the affirmative, and depones that he has been present at more murders than the one in question, what is to be the result? Is the Lord Advocate upon the re-examination to ask him at what murders he has been present, and who was concerned in those murders; or to go into an examination of all the matters connected with those cases? If he is, we may be involved in an inquiry into the circumstances connected with the other murders in this indictment, which are not now the subject of trial, and which your Lordships, by your interlocutor, have precluded from being the subject of trial. I cannot think that such can be your Lordships’ intention: yet the Court must be prepared either to go this length or not, before allowing a question to be put which must open up such a field of inquiry, for if the prisoner is entitled to put the one question, it must follow that the prosecutor is entitled to put the other, and if you do permit such an inquiry, you must be prepared to send the answers so given, and the evidence so arising, to the jury for their consideration. And what would be the consequence? By the evidence thence arising, and the suspicions thence created, the prisoners might be convicted upon matters not at issue in this indictment. Nor is it enough to say that this has been occasioned by the prisoner himself; for the law of this country interposes to protect a prisoner from his own mistakes—it lays down rules by which, in all cases, protection shall be afforded against either accident or error; and as I conceive it would be highly erroneous to send such matters to a jury, and yet that we are entitled to permit no questions to be put, the answers to which must not be sent to the jury, I think, this question cannot be admitted. But I set out with saying, that I do not think any question can be sustained by your Lordships, which, if answered in the affirmative, would disqualify a witness. Thus, suppose that the question put were, Have you committed ten acts of perjury—and the answer were in the affirmative, what is to be the result?—Your Lordship must tell the jury either that the witness’s answer is true, or that it is false. If true, must it not also be added that he cannot be believed upon his oath; and if it appears not to be true, then he is equally incredible. By admitting such questions, therefore, the necessary result is that you put it in the power of the witness to disqualify himself; and that, I have invariably understood, I can solemnly assure your Lordships, to have been a principle reprobated by the law of this country.
The Lord Justice Clerk thought that the question might be put, but that the witness should be cautioned that he was not bound to criminate himself, for if he answered the question the Court could not protect him.
Lord Mackenzie thought the question might be put. The witness being warned that he is not bound to criminate himself, and told that he has no protection from the Court, but for the crime now before it. The admission of his having been guilty of a secret crime could not disqualify him. He had yet seen no sufficient authorities to shake that opinion.
The Lord Justice Clerk agreed with Lord Mackenzie, although he thought with Lord Meadowbank that it was the “most extraordinary question he ever heard;” but the case being an extraordinary one, allowance must be made.
The Lord Advocate wished to know in what situation he was placed. Was he allowed to ask him, if he confessed—“Of what murders were you guilty?”
Mr. Cockburn.—We put that question, and the Lord Advocate is entitled to put what other he chooses. I cannot state the thing more generally. We intend to object to no question the Lord Advocate may choose to ask.
Hare recalled.
Q. You mentioned when you was last here, that you assisted in taking the bodies to Surgeons’ Square?
A. I never was concerned in furnishing none, but I saw them do it.
Lord Justice Clerk.—You are not bound to answer the question about to be put.
Mr. Cockburn.—I am going to put some questions to you, and you need not answer them if you don’t choose.
Q. How often have you carried dead bodies? A. I won’t answer it.
Q. Have you ever been concerned in any other murder?
A. I won’t answer that.
Q. Was there a murder committed in your house on the 8th October last? A. I won’t answer that.
Q. When Burke said he had got a shot for the Doctors, how did you know what he meant by a shot?
A. I heard it often before.
Q. Did you know it meant murder, then? A. Yes.
Q. How did you know it?
A. He told me he would murder her.
Q. Had you any notion that mischief would happen that night you were dancing? A. I could not say.
Q. When did you suspect there was going to be mischief?
A. When I saw him on the top of her.
Q. Did you see the body of the woman at the Police Office?
A. Yes.
Q. Did you deny there ever having seen the body before?
A. I denied it.
Q. How soon was it after her death you saw her at the Police Office? A. I saw a body there on Saturday or Sunday.
Q. You have been acquainted with Burke long? A. Yes.
Q. Have you received any money before from Dr. Knox?
A. No.
Q. Did you ever receive any from his assistants?
A. Burke did, and he gave it me.
Q. Did you ever receive any? A. No.
Q. Who received the money? A. Burke.
Q. Are you positive that it was five pounds that was to be received on Monday? A. Yes.
Q. Who was it paid the man? A. I believe Burke did.
Q. Burke paid you? A. Yes, he threw two pounds to me, and seven shillings in silver. Paterson put two pounds in one parcel, and two in another, and halved the silver and Burke shoved it over to me.
Q. Had you ever any quarrel with Burke about money? A. No.
Q. You told us that the old woman went out into the passage and cried, Police and Murder? A. Yes.
Q. You say you shoved her down over a stool? A. Yes.
Q. And she lay on her back? A. Yes.
Q. At the time that Burke was on the top of the woman, did you hear her screech? A. Yes.
Q. It could be heard a good bit off? A. Yes.
Q. You say that Broggan was in bed in the morning,—did you see him come in? A. No.
Q. Did you sit in that chair and see Burke for ten minutes killing the woman, and offer her no assistance? A. Yes.
Q. You sat by calmly and saw the murder done? A. Yes.
Q. Did you give any information the next day? A. No.
Q. But you went to dispose of the body, and received money for it? A. Yes.
Q. And the next day you denied all knowledge of the body? A. Yes.
MRS. HAIRE or HARE Examined.
This witness was sworn and solemnly admonished by Lord Meadowbank to speak the truth, after which she was examined by the Lord Advocate.
Q. You are the wife of William Hare that was here just now? A. Yes.
Q. Do you remember last Halloween night? A. Yes.
Q. Did two persons sleep in your house that night?
A. Yes.
Q. Why did they do so? A. Burke asked me to give them a bed there in the course of the day.
Q. Did you go out that night in search of your husband?
A. Yes, I found him in John Connaway’s.
Q. Who was there at the same time? A. Connaway and his wife.
Q. Was Burke there? A. I don’t recollect.
Q. Had you spirits there? A. Yes.
Q. Do you recollect seeing an old woman there? A. Not that I recollect. I stopped there until my husband rose, and then we went into Burke’s house with M‘Dougal.
Q. Was Burke there? A. No. He came in soon after.
Q. Was the old woman there? A. Yes, she was there before.
Q. Was there a fight there between Burke and your husband? A. Yes.
Q. Did you go between them? A. Yes.
Q. Did the old woman cry murder? A. Yes.
Q. Did she get a push? A. Yes.
Q. You saw Burke on the top of the old woman? A. Yes.
Q. Did you see him long there? A. No; for M‘Dougal and I ran out of the room into the passage, and stopped there upwards of a quarter of an hour.
Q. When you returned, did you see the old woman?
A. No.
Q. Did you ask after her? A. No. I had my suspicion.
Q. What, that she was murdered? A. Yes.
Q. Did you two lie down in the bed? A. Not immediately.
Q. Where were you when Burke was lying on the old woman? A. I thought, before, I was in the bed, but I think now I was between the door and the bed.
Q. How many minutes was he on her? A. Not many.
Q. Where was M‘Dougal? A. I don’t exactly know.
Q. Which went first out at the door? A. It was I.
Q. Were you both alarmed? A. Yes, Sir.
Q. You say you suspected what was doing? A. Yes, Sir.
Q. Had you any previous reason of suspicion of the act about to be committed on the old woman?
A. I had seen a little trick of it done before. I suspected when I saw him lying on her, and Nelly M‘Dougal told me something.
Q. Just tell us what she said?
A. She came to our house, and said there was a shot in the house; and I asked her what she was, and she said, Burke fetched her in out of a shop.
Q. How did you know it was a woman? A. She told me.
Q. Did she say they intended to make away with the woman?
A. No. But I understood from the word shot they were to do it.
Q. Why did you understand that?
A. Because I heard that word made use of before to express the determination of murdering others.
Q. Were they pressing drink on the woman? A. Yes.
Q. Was she much the worse of it? A. Rather.
Q. You remained there all night? A. Yes, until 5 o’clock. I was lying in bed when Mr. Paterson came in, but I did not hear what he said.
Q. Did you know where the body was put? A. Yes, at the head of the bed.
Q. Did Burke ask you to go out and get a box? A. Yes. He said he had purchased one for to put old shoes in. I went for the box and a porter came and carried it. I afterwards followed with M‘Dougal, our husbands, towards Newington, for fear they should quarrel or get drunk.
Q. What answer did you make to her about this shot? A. I said nothing.
Q. Had you and M‘Dougal any talk about it on your way to Newington? A. No.
Q. Did she feel sorry for it? A. No.
Q. What were you speaking of while you were in the passage? A. Perhaps I said it might be the same thing with her and I.
Q. Do you mean that you might be murdered? A. Yes.
Q. Why did you not go into the woman Connaway’s? A. Because I left my home three times before; and it is not natural for a woman to go and inform on her husband.
Q. You mention the old woman went out at the door? A. No, Sir, she never went out of the inside door.
Q. Was it after she came back from the door she fell down? A. I believe she got a push.
Q. Was it very soon after that that Burke lay down on her? A. Yes.
Q. What was he doing when you run out? A. Burke was lying on her chest.
Q. Why did you go out? A. I did not like to see her murdered.
Q. Was your fear created in consequence of M‘Dougal having told you she was a shot? A. No. I had no thoughts of it at the time.
By the Court.—On the oath you have now taken, did you suppose she was to be murdered that night? A. No, I did not.
Mrs. Hare Cross-examined by the Dean of Faculty.
Q. Was it instantly after the old woman was pushed down that he got on the top of her? A. Yes.
Q. There’s a door at the outer side of the passage? A. Yes.
Q. How is it fastened? A. I don’t know.
Q. When you were in the passage did any one knock at that door? A. Not that I heard.
Q. When you were in the passage did you hear the old woman cry? A. No, Sir.
Q. When you returned in, you went to bed? A. Yes, Sir.
Q. There was a young man of the name of Broggan came in? A. Yes, and we had a dram.
Q. Who? A. All of us.
Q. Then you got up to have it? A. Yes.
Q. Did you go to bed again? A. No.
Q. Was M‘Dougal in bed? A. No; Broggan, M‘Dougal, and I lay down upon the floor.
Q. Was there any more fighting? A. Yes; Burke took the stick and struck Hare, and M‘Dougal interfered and said she would not have Hare treated in that manner.
By the Court.—You had a bed in your own house, why did you not go home to it, and take your husband along with you? A. I did all I could, but he would not come.
Dr. BLACK, Examined.
Q. You saw a woman’s body at the Police Office? A. Yes.
Q. Did you examine it? A. Yes.
Q. Were there any marks on the body? A. None.
Q. Were there any on the face? A. Yes, there was blood.
Q. What appearance had the face? A. It was much swollen.
Q. Any thing remarkable about the eyes? A. They were swollen and the face black.
Q. Did you think that she came by her death by violence? A. My private opinion was that she had, but I could not give a decided medical opinion on the subject.
Q. What was your opinion the moment you saw her? A. I formed the conclusion that she came by her death with violence.
By the Dean of Faculty.—Q. Have you any medical diploma? A. No; but I am a regularly bred surgeon, and have been surgeon to the police for twenty years.
Q. Did you go with the police to the house of Burke?
A. Yes.
Q. What did you see there? A. The thing I took particular notice of was, from fourteen to sixteen ounces of blood mixed with saliva, and having been told the woman had lain in that place, I was able to judge it came from the mouth and nose.
Q. Do you mean now to state you have formed a medical opinion in regard to the body? A. I am really afraid to hazard an opinion.
By the Court.—Q. Were the appearances you have seen on people brought into the police-office who have been suffocated from drink like this case? A. Yes.
Q. If you had seen this body lying in the place where you saw the saliva and blood, would you have hesitated in your opinion? A. I have seen several corpses that died by suffocation, and taking the entire circumstances into view, I think the appearances identical.
By the Dean of Faculty.—Q. Have you had any case of simple suffocation lately? A. No.
Q. Were the symptoms here the same, or nearly the same, as in cases of suffocation from drink? A. The eyes were nearly started from the sockets.
By the Lord Advocate.—Q. Have you seen such saliva and blood in cases of drink, unless some injury was done?
A. No.
DR. CHRISTISON, Examined.
Q. Did you see the body of an elderly female at the police-office at the commencement of November? A. Yes. I saw and minutely examined a body there on the 2d and 3d of November.
Q. Did you perceive any marks of violence on it? A. Yes.
Q. Describe what you saw to the Court and Jury?
A. I saw several contusions on the legs and the elbows, one on the loin, one on the right shoulder blade, a very small one on the inside of the upper lip, and two upon the head; one on the back part of the left side of the head, and another upon the fore part of the right side. I also found pale lividity of the features generally, and dark lividity of the lips; great redness (from vascularity) of the whites of the eyes; an almost total want of lividity on almost every other part of the body except the face; and roughing of the scarf-skin or cuticle under the chin and over the upper part of the throat. Internally, I found a general fluidity of the blood, and an accumulation of it in the right cavities of the heart. In the middle of the neck, I found the ligaments connecting posterior parts of the vertebræ torn, and blood effused among the spinal muscles, near the laceration, and into the cavities of the spinal muscles. I found no sign of natural disease, except a very slight incipient disorder of the liver. All the other organs of the head, the chest, and the belly, were unusually sound. I forgot to mention a small patch of blood on the left cheek, and also a very slight contusion over the left eye.
Q. Did you consider that those contusions could be produced after death?
A. No; but the injury of the spine and other appearances described might have been caused as well after death as before it. An injury properly applied eighteen hours after death, would, I think, cause the same appearances. Cramming into a box or chest like that shown might have caused these appearances. Strangulation or smothering, or throttling, is consistent with what has been described, but particularly throttling or applying the hand under the throat, and throwing the head backward, would prevent the access of air. I found unequivocal proof of violence, in the contusions dispersed throughout the body, and in no signs of disease being visible. I beg to add, from the woman being seen so recently alive and well, from the blood under the bed, as well as the appearances already mentioned, death by violence is extremely probable. If the woman had met her death by the prisoners at the bar, the appearances were such as would correspond with these circumstances. The appearances in some cases of suffocation would be similar to those in the present instance. The appearance of blood from the mouth or nose after death may be produced by any species of suffocation. Directly or indirectly, death by intoxication must physiologically be occasioned by suffocation.
By Mr. Cockburn.—Q. Did the appearances found on the body justify only a suspicion? A. Coupled with the circumstances mentioned they amount to a probability.
By the Court.—Q. Did you open the stomach?
A. Yes, my Lord.
Q. Describe the contents. A. I found half-digested porridge, but no smell of whisky or of any narcotic. The smell is not a necessary circumstance even in cases of intoxication where a person was said to have died of continuous intoxication. At least I know of a reported case where a person was said to have died from constant intoxication, without any smell having been found in the stomach, though it was found in the brain and other parts of the body, but I also know a similar case where the stomach, on being opened, gave out the effluvia of whisky.
This closed the case for the prosecution.
The declarations of the pannels were then read.