JURY UNABLE TO AGREE.

New Zealand Herald, Volume XLVIII, Issue 147690, 8 September 1911, Page 7

JURY UNABLE TO AGREE.

MBS. O'SHAUGHNESSY'S CASE

SIX HOURS IN THE JURY ROOM

new TRIAL ordered.

ACCUSED STILL IN GAOL.

application for bail.

The trial of Martha Jane O'Shaughnessy, ■svho upon her arraignment had pleaded not guilty to a charge of having murdered the young woman Elsie Alexandra Holland at First Avenue, Kingsland, on Juno 13 last, was continued at the Supreme Court yesterday, before His Honor Mr. Justice Chapman, and the following jury: Peter Bryant (foreman), Wm. Eraser, Anthony Jenkin, J. E. Douglas, Alfred McLean, Clinton I. McKean Thomas E. Cooper, Thos. F. Buckley, Ralph Tarbutt, _. Walter F. Maddison, and Henry Loggie.

The Hon. J. A. Tole, K.C., appeared as Crown Prosecutor, and Mr. R. A. Singer appeared' as counsel for the accused. When the Court resumed, Dr. S. A. Bull, whoso evidence-in was nearly finished on the previous evening, reentered the witness-box. He was asked

j bv the Crown Prosecutor ii the portion of the deceased's body which was removed ' during the post-mortem examination showed conclusively or otherwise at what . time tho operation was performed, and if there would have been any use in preserving it. The witness said there would * rot, as it was so exceedingly decomposed. But the evidence showed that the operation had been performed within a certain •: Emit of time.

> Mr. Singer : Within which limit of time ~ had an operation taken place?— is ex-

csedingly difficult to say, but I would pat tie possibility on the "near side" of 24 hours. On the " far side' 7 " I wouldn't care - to say.

If Dr. Milsom has stated that as far as he could tell from his post-mortem examination it had not taken place four or five days previously, would you agree with —No; not in this case. As a general rule in the absence of bloodpoisoning I would agree with him.

Of course you know he has stated —Yes but I don't agree with him. It is a matter of opinion.

I presume since last night you have seen Dr. Milsom —I don't say conferred with him?—l have seen him and spoken to him, for you know we are friends, and this case has been mentioned between us.

Have you discussed the evidence given yesterday and the evidence you gave or are to give?—As I say, I have spoken

to him on the matter, but there has been

nothing said to influence my mind. I think you stated at the inquest that '■ ■ the internal lacerated wound disclosed by the post-mortem was probably four or five days old—that is four or five days before - death — Was that Dr. Milsom's view?— Thai 1 cannot say; our views were divergent on - ■ several points, and I will not say that this was not one of them.

Dr. Milsom said the wound was not , i more than 48 hours old. Did you agree with him on that point at the time No, I would extend the limit. I don't - agree with the time of 48 hours entirely. ■'■ I would put the shortest time at 24 hours " and the longest at five days. But I like to explain that it is extremely difficult - to lav down any law in this case and • • that it is merely my own opinion. This < is an exceptional case in the course it took ''in regard to the virulence of . the septi

caemia. In drawing your inferences didn't yon and Dr. Milsom come to the conclusion -4'that in all probability that wound had f . - most likely been caused not less than 48 >" hours before death? — I can hardly . A go so far as to say that. Well, what was your argument?— r-_ there was no exact argument; but I was of opinion, that the wound was caused .- between the limits I have mentioned— ■_ 24 hours and five days. I think it might *, have occurred more than 48 hours before lip'death.

Dr. Milsom said at the inquest that it 3,: was caused not more than 48 hours pro- =* viously ?—I don't know that; I don't know what his conclusion was.

On what other matters did you dis- • agree? the question of the outer limit Vof the time at which the miscarriage might have taken place. But you must under- ; • stand that we were simply engaged in takl: ing notes, and these matters were not - discussed until after the Coroner's inquest, g") Was there anything else about which you differed? Well, I can't say .without going through the whole case. There is "'no other point that strikes me at the • present moment. But 4 opinions differ on scientific questions largely on account 1 of . the differences -of one's experiences. Dr. • Milsom's is largely bacteriological, while " mine has been clinical. And there were differences on minor Jf matters?— Yes, there were.

Doctor's Unshakable Opinion. Now might not this lacerated wound .* have been caused by a finger-nail?— Not in my opinion; but I would not say it : was impossible, for you may have a \ finger-nail as sharp as a razor! but I | would not cay it was caused by a "surgical" finger-nail. iW. Do you say it is your still unshakable opinion that the miscarriage which took place here was an intentional one? —Yes; ■ but I'd like to ask what you mean by ■ " intentional" ?

Induced by what you may call illegal violence?—l don't know what the term "illegal" may mean, but I should say by intentional violence. . But _ was there no other possible means ... by which this miscarriage could have been produced except by means which were an intentional and devised act, and in consequence illegal?I would say the wound •■is evidence of violence.

Do you deliberately say the cause of the miscarriage must Have been without doubt intentional?l do. Do you say there can be no question of that?l say, as I said before, that (■. it might have been caused by a finger--nail; but tht finger-nail would be an inv - tentional instrument.

But if the wound was caused by a finger-nail the intention was not carried out, because the wound did not cause the septicaemia?No; but I fail to see how that miscarriage could have been accidental.

- Is it beyond the outside realms of possi- - . bility that if the wound were not there, ,-there would be anything to show that the ; -. miscarriage was intentional or otherwise? ? Apart from the wound there would be nothing conclusive. I have made ex. • ~ animations before in such cases and have, 'J. think I may say, always found similar - - _ ■wounds and to my mind it is conclusive evidence of intention.

A Very Unusual Case. And this is an extremely exceptional : ease?— Yes, it is. ■y If death occurs from puerperal septi- „ j caemia you would expect it to occur in from three to five —Yes, I would expect it to occur inside of five days, but K : -'- in most virulent cases I would put the ~l • limit a good deal lower. Could you say that the work of the bacillus capsulites aerogenes commenced -.before death ?— must have commenced partially before death, because I have i' ®6Q such c

Is li a fact that this bacillus works "wxtii extraordinary rapidity after death! Yes, I think bo; but after death innumerable bacilli start work, and it is difficult to particularise any one. . Sis Honor: I hive seen on the authority of a German bacteriologist that there are no less than 19 species in the human month alone?— Well, I should say he is -well under the mark, and that in the body the number would be well over four figures Mr. Singer : Well, here we have, it is said, an operation, miscarriage, and death all within 30 hours. Is that unusual?— Yes, that's most unusual. Mado more unusual by the fact here we have a big strong healthy woman?— I don't agree with that. Well, I think Dr. Milsom says so. Do you agree with him? would like it to bo made clear that he did say so but from a clinical point of view I disagree with himif he says so. In my opinion, puerperal septicemia previous to good health does not make much difference— am not speaking of general septic disease. In re-examination bv Mr. Tole, the witness said he and Dr. Milsom occupied about four hours in performing the autopsy. They were friends but one would not influence the opinion of the other.

Mr. Singer: And as a matter of fact you did not, for you disagreed -Yes; there was very little discussion. Mr. Tole: The wound.is a decided evidence of an illegal operation?— Yes. In answer to a further question, the witness said he believed that in this case the iimoculation and the operation were synchronous.

A Breeze in Gout. Mr. Tole said he desired to recall Dr. Brockway. Mr. Singer asked what further evidence tlie doctor was expected to give, and Mr. Tole was understood to say that Mr. Singer would soon hear when the witness was in the box.

His Honor remarked that there was no reason why Dr. Brockway should not be recalled.

Mr. Singer: Of course, one does not expect ordinary courtesy from the Crown Prosecutor.

Mr. Tola (with warmth): Your Honor, I protest that I should not be insulted in this way. His Honor (severely): Mr. Singer, it is an extremely improper remark, and I say so because yesterday you also made some improper reflections upon the Crown Prosecutor.

Mr. Singer: I beg to ask leave to withdraw the remark.

Dr. Bxockway Recalled.

Dr. Brockway, in answer to Mr. Tole, said he only made a superficial examination of the body of deceased when he arrived at the house on the morning of June 14.

Did vou tell prisoner that death was the result of suffocation?

Mr. Singer: I don't know whether Mr. Tole is entitled to put his questions in a leading way like that.

- His Honor (to the witness): Did you make any statement to the accused as to what was in your opinion the cause of death?—To my mind the appearance of the patient, inasmuch that it was cyanotic (blue-looking) was consistent with death from suffocation; but I did not give tiaras a definite opinion. Did you tell her?l should say what I said was something to this effect, that " She has the appearance of one who has died from suffocation." I don't know the exact words used, but I remember saving something to that effect, and that was because the people who were present did not know her, and accused didn't say when she died. Incriminating Letters. Arthur Richard Miller, storekeeper, said he bought prisoner's interest in the contents of the shop at Kingsland, and entered the shop on July 24. He found certain letters on the premises. Two of these letters were put in evidence. Before the registrar proceeded to read them to the Court, His Honor, addressing the press representatives present, said: I want to ask you gentlemen not to publish the names nor the addresses of the writers of ' these letters. * 1

The registrar (Mr. R. Goring Thomas) then read the following epistles—

"Dear Mrs. O'Shaughnessy,—Just a line to ask you if you can put me right; or, if you can't would you mind giving me another address, as I am in a nice way about it. If you can, would you mind if I came round to-morrow evening. I am sorry to bother you again, but I think you know me well enough not to be afraid of anything underhand on my part. I got on all right that other time, and I am most grateful to you, for I don't know what I should have done but for your kindness. . . . Hoping that you will not look on me with disfavour, I must close, still relying on your kind heart,

" Dear —Just a line to ask you if you would take a case (six months). If so, let me know immediately. .They are in at present, but. will come up to Auckland. You will get £8. Mr. said you would be in — : shortly, but did not know when. Hoping you are well, and expecting to hear from you soon, yours sincerely, " Mr. Singer (to witness): Did you open these letters?No, I did not.

Did you take these letters to the police? —Yes, I did. And when, may I —When I found them about a week after I took possession of the premises— would be about the end of July. Where did you find them? —In a drawer in the shop, together with some other documents.

What were the other documents?—-Un-paid bills. Any letters comfy for prisoner to the shop since you have had- occupation of ?—No.

Did you search high and low for anything else?—No, I did not. And who did you give these letters to? Chief-Detective Marsack.

The Hot Water Bottle.

Mrs. D. B. Cruickshank, sister of the deceased girl, recalled by Mr. Tole, said that deceased possessed a hot water-bottle, but it was smaller than the one found on her breast after her death, and quite unlike it in appearance.

Detective Quartermain's evidence was similar to that given by him in the Lower Court as to his experience in the prisoner's house on June 14. He described the condition in which he found the deceased's body, and the statement made to him by Mrs. Campbell that Mrs. O'Shaughnessy had poisoned herself, which was found to be incorrect although she and Mrs. Hassell believed it was true. _ When he was first told of the alleged poisoning he went into the front bedroom. Mrs. O'Shaughnessy was lying on the bed, and Mrs. Hassell, who was under the influence of liquor, kept on repeating, " She's poisoned herself," " She's poisoned herself." A doctor was sent for, but before his arrival the prisoner told her daughter that she had not taken any po.'jon, and the messenger was recalled. Another Letter. Continuing his evidence, Detective Quartermain said : After the arrest of Mrs. O'Shaughnessy, I received a letter, which had been delivered at Mrs. O'Shaughnessy's house, and which had been taken possession of by Detective lesell. The letter was handed to me sealed, and I handed it in the same condition to Mrs." O'Shaughnessy. She first of all said, without reading it, " Oh, hand it to my solicitor." But eventually she opened the enMr. Tole : Did she say anything ?—Not that I remember.

velope and read the letter. Had ehe been apprehended when that Latter was delivered? she was in custody when that letter came. We had not taken her away, but the warrant had been read to her, and she was in custody. She opened the letter herself. Mr. Singer objected to the letter going in. It could not be traced to the possession of Mrs. O'Shaughnessy. It was in the possession of the police, not in Mrs. O'Shaughnessy's. _ " His Honor : No, I don't think it's on the same footing as the othere. This may be called an automatic letter, but the others were received by Mrs. O'Shaughnessy. It is conceivable, although _ extremely improbable, that it was written for the purpose of injuring her, and it's safer not to nut it c*

Me. ffmggr (to witness} : You say Mrs. Hassan was there. Was she drunk I—Well. I didn't see much of her, but from what I did see I can well believe she was drunk in the morning at 9.30 o'clock. This concluded the case for tic Crown. Address for the Defence. Mr. Singer commenced his address for the defence at 2.15 p.m. His client, he said, was before the jury on the charge of murder. The punishment for murder was one, and ono only, and it was the duty of the presiding judge, if the jury after proper deliberation, found that the accused was guilty of the crime of which she was charged, to pronounce the awful sentence of death. Upon the jury alone was the responsibility and the duty in this case, and they must remember that their verdict could only be one of two verdicts they had to find Mrs. O'Shaughnessy either guilty of murder or not guilty. They could not find her guilty of any less offence, because in the eves of tho law the crime with which his client was charged could only bo the crime of murder. Mr. Tole : They can find a, verdict of manslaughter. His Honor said the jury would be quite within their rights in finding a verdict of manslaughter. Mr. Singer, continuing, said the evidence before the jury was obviously only what was known as circumstantial evidence. No witness had been brought before them who had seen any act performed by Mrs. O'Shaughnessy upon the deceased girl. From the medical evidence it was certain that there was an equal possibility that the death of the girl was due to a miscarriage as to some unlawful interference. Counsel said the prosecution had to show the jury to their _ complete and entire satisfaction two things : (1) That Mrs. O'Shaughnessy's statement made at the inquest was false; and, secondly, if Mrs. O'Shaughnessy's statements were false that the prosecution's theory of tho case was the right one. The Crown Prosecutor had had two difficulties to overcome, and counsel submitted that he had not overcome either of them. Mrs. O'Shaughnessy, said counsel, had made two statements that agreed in every detail, and the only person brought to contradict Mrs. O'Shaughnessy was this remarkable witness, Albert Edward Williams. "If you are going to hang anyone, gentlemen, hang Williams." There was some laughter in tho body of the Court at this stage. His Honor said he would have the Court cleared if there were any more indecent behaviour.

JUDGE'S SUMMING-UP.

JURY'S SERIOUS DUTY.

In summing up the evidence, His Honor described tho several classes of murder, and referred particularly to the definition laid down in the Crimes Act. It was requisite, he said, that the accused person should know and oiysjit to know that the act performed might cause death; and most persons were considered capable of knowing the danger of an act such as was ascribed to the accused. Tho jury before convicting the accused must be satisfied that the Crown had excluded any other theory than that murder had been committed. But if all the circumstances led in only one direction, that an illegal operation was performed upon the deceased woman by the accused, then it was their duty to convict on one or the other of the aspects of the case. Evidence had been in a bona-fide manner introduced by the Crown to show that accused was habitually engaged in such operations ; but the jury should bo particularly careful not to convict the accused on this present charge simply because she had performed a similar operation on another occasion. In our legal system it waa insisted upon that an accused person should be tried upon the merits of the charge made against him. This evidence showed that very close to the time of the death of Miss Holland, another woman had gone to the accused's house and had been treated there as a patient, although she did not remain there. Then two letters had been read, and one of them suggested that the house was used for this criminal purpose and not as a private hospital or nursing home. It was suggested by the defence that Miss Holland came to the house as an intruder; but the Crown maintained that this explanation was improbable to the verge of impossibility. The letters, moreover, went to show that this was a house where young women could resort for tho particular purpose referred to, and the Crown suggested that Elsie Holland did not get in there by accident; that she knew what the writers of the letters and the other witness knew of the character of the house, and went there by arrangement with the accused. Williams's Evidence. Due consideration had to be given by the jury to the evidence of Miss McDowell and Williams, although it was clear that their whole story had not been told— it was not necessary to be told by either the Crown or the defence. The young girl was not severely cross-examined, but Williams was, and counsel had no hesitation in stigmatising him as a liar, and quoting his own evidence and his suppressions of evidence in proof of the allegation. But if he was included amongst those who were cautioned not to give statements to the police, his sileace and suppression of truths might have another aspect, and if his actions in this regard were intended to shield and assist the accused then the jury might look upon his evidence differently. The most important part of his evidence was his statement that he was shifted from his bedroom on tho Monday morning, June 12 —the very room in which Miss Holland was found dead early on the following Tuesday morning. If that was so, the questions arose: Why was he shifted? and Was it because Miss Holland was expected to come to the house and occupy the room? But there was the coincidence that the room was vacated, and next day the young woman's body was found there. Was it probable that Williams's story was true or that the accused's story was a pure invention to account for something which the parties concerned did not wish to account according to the truth? The Crown asked the jury to conclude that this story was not true, and that there were other falsifications which went to show that the young woman came to the house by appointment, and was illegally operated upon there. The Poison Tabloids. As to the tabloids, the medical man first called in did not see them in the bedroom at all If they were not there then, but were an hour later, why were they put there? The medical men agreed that the tabloid was put in deceased's mouth either immediately before death, when she was unconscious, or else shortly after she had breathed her last. And if this was done was it done to lead the police on to a false scent? It was for the jury to say what their conclusion was in respect of these questions. The evidence for the defence and counsel's address ought to be carefully scrutinised, and there should be no proceeding by way of any conjecture or surmise. It appeared that the girl was moaning in the room for an hour and a-half or more before the accused said she became aware that there was a girl dying in her house. Mrs. O'Shaughnessy's Statements. The statements of the accused when she was questioned might not be of importance. It did not follow that because she made a statement the jury should rely upon it. One statement was that made to another female witness that "it was not my case," which the jury was asked to rely upon, and it was for them to determine its value and bearing upon their verdict. The accused had stated that tho only other persons resident in the house were her husband, Williams, her daughter, and herself. If the jury found that the operation had been performed upon this young woman in Mrs. O'Shaughnessy's house they would consider the question as to the person who was likely to have performed that operation. The operation was not one likely to have been carried out by her husband, who was a small storekeeper. Her daughter was a young married woman, and there was no suggestion that she performed illegal operations in the house or had any authority at all in the house. Nor had Williams. "But the accused was possessed of an instrument which could be used for the purpose charged, she knew the use of it, and in consequence the jury might think she performed the operation if Elsie Holland did not come into the house as an uninvited invader. It was for the jury to say

whether' the question "was not narrowed down to this: that the accused was the only person there who was capable of performing the operation. Value of the Medical Evidence. They would also determine whether the operation was performed somewhere about 30 hours before death; and on that subject they had heard medical evidence at considerable length. It was for them to judge of its weight. They were not bound to adopt any of the opinions that had been expressed, but to satisfy themselves that the operation had been performed within the period stated. The medical men said that as a rule the period that usually elapsed from the time of the innoculation until death was longer ; but they also said it might be as short as 24 hours. In effect, what the medical men had to some extent put before the jury was that 30 hours was not necessarily the period that would elapse. Gravity o! the Situation. They should not convict the accused because evidence had been led to show that she was an abortionist, although they might not be able to help it having its weight with them, for it showed that her associations were of such a character that this young woman had a reason for going there. But the jury to convict her must convict her on the actual evidence that the operation was performed in the house by the accused on the Monday night, and that as a result blood-poisoning set in, progressed rapidly, and that Miss Holland died from that cause at an early hour on the following Tuesday morning. The jury should recognise the gravity of the situation as far as the accused was concerned. They had a duty to perform, unpleasant as it was, and they should perform that duty fearlessly. THE JUSY IN DIFFICULTIES. A DISAGREEMENT. The jury retired at 5.40 p.m. and returned to Court at 9.55 o'clock. In answer to the Registrar's question as to whether the jury had agreed upon a verdict, tho foreman answered in the negative. His Honor said he did not like to discharge the jury. The trial had been a very lengthy one and it would only mean going over the whole thing again, which was to be avoided if possibles Ho asked if there was any question in the evidence to which he could refer by way of assisting them'! The foreman answered that there was one question they could be assisted upon. They could not establish Mrs. O'Shaughnessy's guiltone portion of the jury could not agree— His Honor : But is there any question upon which I can assist you ? The Foreman : That is the only question upon which we disagree. His Honor : But is there any particular part of the evidence to which you wish me to refer?

The Foreman : It's in connection with the operation in Mrs. O'Shaughnessy's house and the question of tho time, Monday or Tuesday. These are tho difficuties.

His Honor: Well, I don't know that I can usefully go through the evidence on that subject again. There is one matter to which I did not call your attention in summing up, to the evidence that when Williams spoke to Mrs. O'Shaughneesy ho said that the moaning .seemed to come from the front of the house and seemed to continue; and ho asked the accused what was the matter. She replied that there was someone sick in the room. If that statement is true you have to contrast that with her statement that she did not know that thia girl was in the house until after 11 o'clock on the Tuesday night. As to whether the operalion was performed in the house I have already referred, and _ you have to say whether it was done in the house. That's all I can say, and I must ask you to retire again and further consider your verdict. The jury deliberated from 10 o'clock until 11.30, when they came back to Court. The foreman stated that an agreement was absolutely impossible. They were accordingly discharged from further attendance. On the appl' cation of the Crown Prosecutor His Honor granted a new trial to bo held during Che present session of the Court. Consideration of an application for bail by Mr. Singer, which was opposed by the Crown, was indefinitely deferred. The Court adjourned at 11.30 p.m.