SUPREME COURT.

Globe, Volume VI, Issue 638, 5 July 1876, Page 2

SUPREME COURT.

CRIMINAL SITTINGS. Tuesday, July 4. (Before his Honor Mr Justice Johnston.) BEGINA V TOWNEND. The following is the concluding portion of this case from the time of going to pres 3 yesterday i Examination of Donald Campbell continued—The proper skilful mode of operating would be to reduce the skull. I consider the method adopted by prisoner did not assist delivery in the sHghtfSfc. The wounds would assist in kil ing the child. It is always easier to deliver a living child than a dead one. In a case such as this one there is no use in destroying the child, except for the" purpose of reducing the skull. Cross-examined by Mr Joynt—l do not think that medical men as a rule take their forceps with them when attending confinements ; I always take mine with me. Rupture during delivery is very rare, and means certain death; not necessarily instantaneous. The brain of the child in this case was perfect, though it was punctured. I consider death ensued through the brain being punctured. By his rjonor—From the fao.ts as stated by the prisoner, a skilful man could not be sure that the child was dead. I should not under the circumstances there stated have had any reasonable ground for supposing the child to be dead.

By Mr Joynt—l could tell by the stethoscope whether the child was alive, but not if it was dead. The stethoscope is somewhat uncertain. In my opinion none of the facts stated by the prisoner seem to me Buffiuent to cause him to believe in the death of the child. I recognise Dr Ericson as a high authority as a surgeon. Mr Joynt—l will now read you an extract from Dr Bricson's " Arc of Surgery," 1872. [Extract read."]

Witness-^-In that extract I don't think Mr Ericson intends to include new born infants in his statement that «« The younger the patient the greater the chance of recovery, even with extensive injury to the brain." If he does so, I entirely disagree with him. The respiratory action of the ohild, and the system generally, must have been affected by the shock received just before it was born. I should not expect a ohild under these circumstances to have taken its natural food freely. Llewellyn Powell deposed that he was a duly qualified medical practitioner, and detailed tbe appearances at the post ywrfein examination on the body of the infant child of Harris Isaacs, conducted by him in conjunction with Dr Campbell. The witness, in answer to his Honor, are only two points inconsistent with the statement made by the prisoner, so far as the examination made by me leads me to form an opinion. Tbe first is tbe statement that be believed the child was M, Xto e*»mintyi°s too wed

that the child was born alive, and I am unable to say upon what grounds he came to the conclusion that the child was dead. That is, there in nothing so far as I could see to lead a skilful person to believe that the child was dead. The second point is with reference to the position of the head and difficulty of birtb, and yet he accomplished it as stated. This I consider to be impossible, as if it had been tjhere would have been f&rraore contusion of the soft paits than was apparent. The head of the child, so fa? as I sew, might have been for a short time as d -scribed by the prisoner. In my opinion tl e use of! the scissors as described by the prisoner would not have assisted the birth. I is not usual to perform such an operation without another medical man being present, if he could be obtained. Taking the prisoner's own statement I don't think that the treatment was such as a person of ordinary skill would have adopted. Cross examined by Mr Joynt—lt is the general practice to go to confinements without instruments unless when going to a distance. In an immense majority of cases instruments are not necessary. I should certainly not call it an instance of negligence in a practitioner to go to an ordinary confinement without his instruments. If a practitioner had bona fide reason to fear the setting in of rupture, and had not his instruments he would be quite right to do all he could efficiently to destroy the child to Bave the life of the mother. If a skilful practitioner found that a mother were in danger of rupture from the head of the child being fixed as stated he should use his forceps; if he had not them he should send for them, and until they arrived he would be helpless, unless he used some efficient means to relieve the pressure. I don't think that a child could have lived with the wounds found on the one examined by me. It may be that the younger a person is the greater the chance of recovering from injury to the brain, but I am not prepared to say. If Mr Ericson says so lam prepared to admit it, L^ r Joy"*- here read to the witness the same passage as that read by him to Dr Campbell.] I fully agree with what Mr EricKon says in this matter. In the case of the infant examined by me you must remember that there was a compound and comminuted fracture of fthe wall of the skull, as well as the injury to the brain. I siw nothing to lead me to believe that the child would not have lived had it not been for the injuries received. By his Honor—ln the statement of facts made by the prisoner I Bee nothing to indicate danger of rupture to the mother. From such facts as the prisoner has stated I should think that there were no indications of such a thing taking place unless a child were in the position stated by the prisoner for a prolonged period—hours—it would not have induced rupture. Accepting the facts as related by the prisoner, and knowing nothing further, I should have sent for forceps and felt justified in waiting until more serious symptoms arose. I should not attach much importance to a woman becoming delirious, as they do so for very slight reasons. Rupture in some cases comes on without premonitory symptoms. When there are symptoms there is great pain, acceleration of the pulse, and faintness. When these were present I should thirjk there were grounds for believing that rupture was imminent. If the child were alive the prisoner did not certainly take the proper means to destroy it, as the cerebral hemispheres are the least vital part of the child's brain. Supposing the child were dead, the operation performed by prisoner made not the slightest difference as far as facilitating the birth of the child was concerned. Ido not think that a practitioner of ordinary skill would have done what prisoner did ; he would not have thrust the instrument into the eye. If the prisoner had had the proper instruments at hand, it would have been a very clumsy proceeding to do what he did. I have never heard, nor read in medical works, of an operation carried out in this manner being successful. By Mr Joynt—Medical men in performing the operation of craniotomy use Bcissore of a peculiar shape ; totally different to the one produced. By his Honor—Half a drachm of ergot of rye is not an unusual dose. Mr Joynt, at the conclusion of the crossexamination of the witness, asked his Honor to adjourn the further hearing of the case until next morning. He had seven witneßseb to examine, and they had already been sitting some hours.

His Honor declined to accede to the re quest, but would leave it to the jury to s*y whether they, as having to be locked up were content to have the case adjourned until next day. The foreman of the jury, after consultation with his colleagues, stated that they were prepared to go on with the case until it had finished.

After some discussion the Court adjourned at 5 p.m. for half an hour.

On re-assembling, Mr Joynt said he proposed calling evidence to shew that the prisoner had been for years past attending midwifery cases, and that his reputation as an accoucheur was a good one. He should also call medical evidence which would he hoped, show them that under the peculiar circumstances in which the prisoner was placed, the use of the scissors before them would have a salutary and beneficial effect. It was not for the jury to decide whether he could have saved the child as well as the mother, but to say whether he had acted with criminal neglect or criminal recklessness in treating the woman and her child as he had done. He should now call evidence :

Joseph Henry Townend—l am a legally qualified medical practitioner, and brother of the prisoner. He has been my assistant for nine months hero. He has attended some 1500 cases of midwifery successfully atjhome, extending over a period of eight years. Since he has been in Canterbury he has attended over 160 cases of midwifery, and has had experience with obstetric instruments. He was a student of Guy's Hospital, London. I am a Licentiate of the Royal College of Surgeons, and Licentiate of the Society of Apothecaries. I remember the evening that Mr Isaacs came for me. I remember his coming earlier in the evening for me when I was in the Rurgery. I neard what passed between Mr Isaacs and my brother. Mr Isaacs asked if Dr Townend was in, and ,my brother said " Yes, but engaged." Isaacs then said " My wife is in labour ; I require some one at once." Prisoner then offered to go with Mr Isaacs if the case was very urgent, as I should not be able to leave for some little time. The prisoner certainly did not at any time during this interview say that he was Dr Townend; He spoke loud enough for anyone to bear him to the surgery, About midnight Mr

Isaacs came for me, bringing me a message from the prisoner that he required the instruments, and asking me to bring them with me. [The statement of the prisoner made before the coroner was then read over to the witness. | I saw the child within a few minutes affer it was born, and also once more [before it died. When I arrived Mrs Isaacs was suffering from rigors, indicating that she had been subjected to severe pains, far more so than the ordinary ones ; she was also very low indeed. The indication of the • ;hild showed that the birth had been one of the most difficult kind. From the condition of the child when I saw it I should say that the statement of the prisoner as to the position of the head of the child was perfectly true. From the woman's condition I should say the prisoner was perfectly justified in arriving at the conclusion that rupture was imminent. I gathered this from the appearance both of the mother and child. I have never seen such effusions as on this occasion, and I have seen a large number of cases. The prisoner held a very good reputation in England and here as an accoucheur. I should think that the prisoner would be perfectly justified in using such an instrument as the scissors produced if he found that rupture was imminent, and he had no instruments at hand. I should imagine, from the fact vhat the using of the instrument gave relief by the birth of the child, that it effected the purpose for which it was used. I felt quite sure that the child, independently of the wounds received, could not live, as it was puny and weak, and had not sufficient vitality. By his Honor—l do not believe that the child died from the effect of the wounds. I do not believe that the wound inflicted on the child would have been enough to have caused its death had it been a strong and healthy child. The child was a thoroughly debilitated child, and prematurely born, an eight months' child, I should say. It was small, very small, and puny. It did not cry rb lustily as healthy children do. I was not present at the post mortem examination. I believe the child died of general debility—that means, I suppose, general want of life. The lungs and the heart would be weak I should say. Cross examined by Mr Duncan—l ex amined the wounds in the child's head externally whilst it was alive. Ido not know the injuries which were inflicted upon the child internally. I mean by saying that the woman had rigors, that she had violent shiverings, which would be a premonitory symptom of rupture. Henry Hodd—l am a mason, residing in Ohristchurch. On the 20th of May I was at Dr Townend's surgery, and heard a conversation between the prisoner and Mr Isaacs. The prisoner did not at any time during thiß conversation tell Mr Isaacs that he was Dr Townend.

Emily Genet—l am a married woman. I know the prisoner. He has attended me recently in my confinement. It was a difficult one, and I was peifectly satisfied with prisoner's attendance. Jessie Pawcett—l am the wife of Edward Pawcett, messenger at the Bank of Australasia. The prisoner has recently attended me in my confinement. It was a very dangerous one, and-1 was perfectly satisfied with the treatment of prisoner.

Mrs Pry gave similar evidence, deposing that her life was in great danger, and that she was told by her friends—she herself being insensible—that the prisoner had saved her life.

Counsel on both sides having addressed the jury at Borne length, His Honor summed up, commenting shortly on the facts of the case. The jury retired at 8 40 p.m. to consider their verdict, and at 9.5 returned iato Court to ask a question relative to the time elapsing between the discovery by the prisoner of the difficult and dangerous position of the case and his using the scissors. His Honor having read the evidence bearing on the point, the jury then retired again, and at 9.20 returned into Court with a verdict of " Guilty." Mr Joynt suggested that a fine would meet the ends of justice. His Honor—No, no. The case was a fit one for a jury to consider, and after n jury, who have intelligently and patiently considered the case, have returned a verdict finding the prisoner guilty of culpable negligence, 1 do not think that a fine would meet the case at all.

; His Honor, addressing the prisoner, said he could not but say "that the jury were perfectly justified in bringing in the verdict they had, and that a jury having been found steady enough to give a verdict like this would have a good effect. It would show that a person, whether duly qualified or not, who professed to exercise an art, should do so with care and skill, and that he should not do so in a careless manner. The jury had evidently been guided by the fact that for some three hours the prisoner was aware that the case was a very difficult one, and that there was gross carelessness in not send* ing off Isaacs at once to procure the necessary instruments and assistance. The jury, nodoubt, also believed what had been said by Isaacs when he appealed to the prisoner to allow him to go for another medical man, and was told that if he did he would leave his wife to die. It was very difficult to apportion a sentence in a case like this, where the discretion of the judge was so large, ranging from fine and imprisonment for a short time, to penal servitude for the remainder of the natural life of the prisoner'.' As the great aim of the infliction of punishment was to protect the public, he thought that a salutary warning would be given to all professors of the art of healing, whether with degrees or without, that they must not rashly tamper with the public health. Looking at the case from this point of view, he thought that the case would be met by the infliction of a punishment which could not but be considered light for so grave a crime as taking the life of a human being, In passing the sentence he proposed to do, he would, so far as the arrangements of the local prison permitted, spare the prisoner the degradation of mixing with the common criminals, at the same time he must mark his sense of the case by a term of imprisonment. The sentence of the Court would be that he be imprisoned in the common gaol at Lyttelton for six calendar months. The Court adjourned at 10 p.m. to 10 a.m. this day. Wednesday, July J. (Before his Honor Mr Justic3 Johnston.) His Honor took his seat in Court at 10.30 a.m. BURGLARY. Matthew Smith and Bichard Nixon were indioted for having on the 20th May burglariously broken into a cottage adjoining the Borough Hotel; in Manchester street;

and therefrom a box containing clothing and other articles, the property of James Stewart.

The prisoners, who were undefended, pleaded "Not Guilty." The facts of the case were that the prisoners iu question went to the cottage in which the barman of the hotel slept, and stole the property laid in the indictment, which was afterwards found in Tuam street hid ou a vacant section.

Evidence was led by Mr Duncan in support of the facts in the indictment. Evidence having been led by Mr Duncan to support these facts, His Honor allowed of the indictment being amended so as to describe the dwel-ling-house as the property of Mrs Priston. The jury, after a short retirement, returned a verdict of " Guilty," with a recommendation to mercy as regarded Nixon, as the jury considered he had been led into the matter by Smith.

Mr Inspeetor Feast deposed to the general, bad character of Smith, and his association with thieves and reputed bad characters. As to Nixon his character was not so bad. His Honor sentenced the prisoner Smith to penal servitude for four years, and Nixon to imprisonment for twelve months with hard labour. ARSON. Joseph Catchpole was charged with having on the 19th May last wilfully and maliciously set fire to the Burnham Hotel with intent thereby to defraud the Liverpool London and Globe Insurance Company. Mr Dunean prosecuted on behalf of the Crown. Mr Joynt appeared to defend the prisoner. Mr Duncan asked the prisoner's counsel to produce the policy of insurance, notice to produce which had been given. Mr Joynt said his instructions were that the policy has been burnt. Mr Duncan called the following evidence. George Hart deposed he was a Justice of the Peace, and that the declaration produced was taken before him by the prisoner. James Alexander Bird, agent of the Liverpool and London and Globe Insurance Company, deposed to the prisoner having effected an insurance with him on the Burnham Hotel for £l5O on the Bth of January,, 1876, and of his having, in May, reported that a fire had taken place at his hotel, and that he had lost everything except a few trifling articles. He filled up a form of claim which he, the witness, gave him. Detective Kirby gave evidence as to his examining the remains of the hotel, and also taking possession of a quantity of goods at prisoner s private house in Eolmore street west, Christchurch. Henry Allison, clerk at Harman and Stevens', agent for*the owner of the Burnham hotel, gave evidence as to the tenancy of the prisoner. [Left sitting.]