TRIAL OF DR ORPEN.

Otago Witness, Issue 2325, 22 September 1898, Page 12

TRIAL OF DR ORPEN.

A VERDICT OF NOT GUILTY. AUCKLAND, September 13. The trial of Dr Arthur Herbert Orpen on a charge of murder was commenced at the Supreme Court this morning before Mr Justice Conolly. The body of the court was well filled during the hearing of the case, while about a score of women watched the proceedings from the gallery. Dr Orpen was indicted that on the 23rd December, 1897, at Auckland, he did murder Susan Harriet Campbell M'Callum. The prisoner, who looked old and very feeble, was allowed to sit down during the hearing of the case. He pleaded not guilty in a tone scarcely audible, but his demeanour was perfectly calm. The right of challenging the jury was freely exercised by the prisoner. The Crown prosecutor (Mr Tole) appeared for the prosecution, and Messrs Theo. Cooper and F. 15. Baume for the defence. Mr Tole proceeded to outline the evidence that would be presented on behalf of the prosecution. He also referred to the deposition made by decease-1 shortly before her death. Mr Cooper ctbjected to reference being made to evidence which might afterwards be challenged and ruled out, but his Honor said this must be left to the discretion of the Crown prosecutor. Mr Tole also referred to the deceased girl M'Callum having had a miscarriage on December 11, and said he would produce a diary in which there was an entry in the handwriting of accused, " Heard that Susan has a ' mis.' " Counsel pointed out that the crime alleged against the prisoner was one of those crimes committed in a secret way, which still carried with it malice and intent which would be alleged in other crimes. Evidence was given by Marion Metcalfe, widow, at whose house deceased lodged ; William Dawson, cabdriver, who conveyed her to a private hospital ; and Elizabeth Ogilvie, nurse at the^ private hospital. The last witness" said deeear-ed knew she was dying. His Honor ! asked bow witness knew what passed through deceased's mind. Witness could not say definitely. Deceased did not tell her at the time sbe was dying, but she was sure the patient knew of her state, because she said, "What will my poor father say?" Detective Grace and W. C. Sharland having given evidence, Mr Tole put in a diary to show the handwriting of accused, and also with reference to an entry on December 11. Mr Cooper pointed out that the diary was for 1896, and it had been apparently regularly written up after December 25. Although accused left the colony -last December 25, Mr Tole said the 6 of 1896 on the first page had been altered to 7. His Honor could not ccc how a person who had gone away on December 25, could have made entries to the end of the year. The diary was worth nothing. September 14. The hearing of the charge of murder against fyr Orpen was resumed to-day at the Supreme Court. Mr Tole tendered a letter which Mr Sharland had received by the San Francisco maU with instructions to send it t>n -to Dr Purchase. Mr Shaxland (cross-examined by Mr Cooper) said he believed the instructions were in the handwriting of accused. He could not take his oath that the writing was Dr Orpen's. Witness sent the letter on to Dr Purchase, but did not read it himself. Mr Cooper objected to the letter being put in on that evidence, and his Honor upheld the objection. Dr Arthur Challinor Purchase was the next witness called. He stated that accused asked him to see a patient in the Hepburn street Hospital on December 23, and there Dr Orpen told him that the patient had had a miscarriage. Witness expressed surprise, and asked accused what he had 'done. Accused said he had not seen the patient until four days after she had a miscarriage. After examining the patient witness advised the operation of "curetting." Accused asked him to do the"' operation, and witness consented, Dr Orpen administering the chloroform. From his examination of the patient witness formed the opinion she was suffering from septic infection or blood poisoning, and therefore he recommended the curetting. Witness produced the curette used. He had used it very frequently. The operation was performed very carefully, and no injury ; whatever followed the operation. Miss Ogilvie, to whom instructions were given, was a trustworthy and experienced nurse. In response to a message from Dr Orpen witness saw the patient again on Friday morning (24th). She was then worse. Witness prescribed for her, and then left. He consulted with Dr Lewis as to whether it would be advisable to operate upon her in order to save her life. They decided she was too weak to operate upon. Witness had then no hope of her recovery. Mr Tole : Would eating oranges and grapes cause the conditions that you saw? — Witness : I think I must say no to that. Was it a case of gastritis? — I should not have called it a case of gastritis, though she certainly had gastritis when she died. Could you say what her condition arose from? — In my opinion it arose from absorption into the system of septic poisoning. Mr Tole pr6duced a letter, which witness identified as one he had received on February 24. It was handed to him sealed in the office of Messrs Wynyard and Purchase. It was enclosed in an envelope addressed in the handwriting of Mr W. C. Sharland. After hearing argument by counsel as to the admissibility or non-admissibility of the deceased's (Susan M'Callum's) dying depositions, His Honor, in giving his decision, said it was quite clear from the evidence given by Mr Allom, given straightforwardly and intelligently, that neither he nor Nurse Ogilvie intimated to the woman that there was any danger of immediate or very speedy death. Miss Ogilvie; said in her evidence that it was her business to cheer up patients as much as possible, and not to say anything that would make them despondent ; while aur Allom distinctly said he only asked the question of the woman once, and her answer was — "J am making this statement because I think it probable that I may die soon." His Honor did not say Mr Allom was at all wrong in not

putting any more direct questions to her. Both ne and the nurse were clearly of opinion that the woman, was dying, and she would not live many hours. If such questions had been put and she had answered them in the affirmative, or without any question being put, she had said "I know I am dying," or "may die before many hours," then his Honor thought the position would have been very different. But as it was he must hold that the declaration should not be accepted. Mr Tole said that as the point was a very important one, he suggested that his Honor should reserve the point of law. His Honor : There can be no point to reserve when matter is rejected. I reject the evidence. Suppose I reserve the point and the Court of Appeal decides I was wrong in rejecting the declaration, and that I should have admitted it? Mr Tole: Then the Court of Appeal can order a new trial. If the result of the present trial is an acquittal, accused can be discharged subject to being arrested again if a new trial is ordered. I am quite within my rights in asking that the point be reserved. Counsel quoted section 412, sub-sections 1 and 3, in reference to the power of the court to leserve any question of law for the consideration of the Court of Appeal. His Honor: This application has rather taken me by surpi-ise. I think I may say on that section that it is probable that I ought to reserve the point. — The point of law connected with the question of the rejection of the declaration was accordingly reserved for the consideration of the Court of Appeal. James Wigs (ironmonger), Mary Jane Garrett (boarding-house keeper), Thos. -Henderson (Auckland manager of Union S.S. Company), and Frederick Thomas (clerk in Union Company) gave evidence as to accused's departure from Auckland on Christmas Day by the 'Frisco mail. . Philip Henry Pickering (clerk in the Bank of New South Wales) stated that accused kept an account at the bank. Witness produced six cheques signed by ■accused. Mr Tole produced the letter and envelope received by Mr Sharland with instructions to forward it to Dr Purchase, and asked witness to .compare the writing with that on the cheques. Witness replied that the writing was similar, but he did not think he could sweaA thafe the writer of the cheques wrote the letter. Crossexamined : Witness had never seen Dr Orpen write, and only had a copy of his signature in the bank with which to compare those on> the cheques. Michael E. M-'Garry (chemist's assistant) was also called with reference to accused's handwriting. • He produced three prescriptions written by Dr Orpen, and said he knew accused's writing. He had no doubt whatever that the writing on the envelope and an the enclosed letter was Dr Orpen's. Cress examined : Witness could not swear that he had ever seen accused write. It, was five or six years since -he had put up a prescription of Dr Orpen's. His knowledge of accused's handwriting was gathered from his prescriptions. The letter signed "W. H. O." to Dr 'A. G. Purchas was read by the Kegistrar as follows : — Prnate an<3 Confidential. Care of W. C. Sharland, fehortlimd street Dr A. G-. Puicha=i, Dear Sir, — Will you please writo mo full particulars re that case and results, and how it affects. Can I go -to England and return and settle in Australia with impunity ? I look your advice that Christmas morning, and cleared, but I ani quite in the dark and at a great losp to understand your action in this case. 1 wish, however, to give you credit that in getting that D.D. you had no idea I was implicated in the matter. If I .-thought otherwise T should certainly not hold my tongue. ! Must have .been great' pressure put on that 'ittle girl, or she would never have implicated me. In the first instance, tho case was well done — nerer better ; and sho unfortunately up and about for fivo days, and wretched insanitary condition, and her dissipated ha-bits started this obstruction and subsequent cellulitis. The firs% time I went to her house was six days after it came away. Unfortunately, 1 was ill myself (that you know), and both my nurses — one with rheumatic fever, tho other was away at Te Aroha. Had I had her with either of these the cas? would never have oc- | curred, or if it did would never have been heard j of. It was tho first accident or mishap I had I in over 500 cases. .1 got your assistance in | two trivial cases (similar), my own, as I wanted simply to "see if you would be friendly, und that I could trust you, as I heard a lot about you from nursa; and patients. But I suppose I made a fatal mistake in not telling you out and out in the first instance the truth re this ojt\ I m/solf would never have taken a D.D., no matter who did it, and I cannot see what you expected to gain by my exposure; and if there has been any exposuro it has been your doing. I have got plenty of friends, who, if they can get my address, will let me know everything. But I am still willing to give you, as a. professional brother, the benefit of tha doxibt. I will say no more. — Yours truly, A. H. O. Dr Purchas was recalled, and Mr Tole asked him : "You know that letter V rV He says. I took your advice that Christmas morning and cleared." Is that so? Witness : No, I did not advise him to go. Dr Purchas further said that if he were told that an operation had been performed by a medical man and such a wound made as was on the deceased, he would say it was done unskilfully. Dr Bakewell stated that death was caused by general peritonitis and the exhaustion produced by it. Peritonitis was set up by an abscess in the pelvis. The originating cause was apparently a wound. The evidence for the prosecution was closed, and the address of counsel and the summing up by his Honor adjourned until the following day. September 15. At the Supreme Court to-day Dr Orpen was acquitted on the charge of murder. Mr Theo. Cooper having addressed the court for the defence, Mr Justice Conolly summed up. His Honor said that assuming death to have been caused by the nccused in> the course, of an operation to procure abortion, ißis did not come within the moaning of the clause under which the charge v/as laid. The plain meaning of that clause was that the act must be "something which was likely to cause death." His Honor said it was competent for the jury to return a verdict of manslaughter where the person was killed by an unlawful act. If they were satisfied that the prisoner performed an illegal operation, and that the operation caused death,

they could bring in a verdict of inarfr slaughter. His Ilonor did not see that the charge of murder was made out under any, circumstances. But before they could convict the prisoner either of manslaughter oft of murder they must be satisfied that it ■was some act by him which caused death.; Prom the evidence there could be no reasonable doubt that what really caused death" was the wound caused by some sharp in* strument. When that was done or by, whom there was no direct evidence. The only direct evidence could be that of the woman herself, and the woman was dead, although she made a statement shortly before her death upon which there was a" long and interesting discussion by counsel. His Honor decided to exclude that statement' from the evidence, and the jury must therefore take it that no statement was made at all. His Honor then proceeded to read over portions of the evidence, and pointed out how the evidence of the medical men disposed of the charge of murder. His Honor then commented upon the letter pub in, which was certainly a very extraordinary document. There were many points in the 1 letter which Dr Purchas ought to have been_ allowed to explain. His Honor went on to say that there was no doubt this practice was prevalent. It was practised by some medical men, and also by some who are nofc medical men. His Honor added: — "It is an awful state of affairs, and a want of morality that is disgraceful in any country, has an attraction for the public. This maybe gathered from the fact that the gallery, of this court, seb apart for females, was crowded yesterday by females to hear the sickening, disgusting details about the esamination of this woman's body, and here it is crowded again to-day." Returning to the letter his Honor said the question arose why accused should go away in a hurry ; why he should go away under a feigned name ; why he should ask whether he could safely return ; why he should threaten Dr Purchas ; and why he admitted that he did not tell the truth to Dr Purchas in the first instance? If this letter had from any reason been excluded from the evidence, there would not have been anything like the case there was now. Finally, there could be little or no question that something had been introduced which caused the wound that was the cause of death. Was it done by the prisoner? It had been suggested by the defence that it might have been done by herself or by any other person. In 1 considering whether it was done by the prisoner the jury had to take into consideration the whole of the circumstances, and more especially this extraordinary letter. If they were satisfied that the wound, whether inflicted by want of skill or by mere accident, was caused by the prisoner, it would be their duty to convict. ,If -they had any reasonable doubt it would be their duty to acquit the prisoner. The jury retired at 3 o'clock and returned at 10 minutes to 5 o'clock with a verdict of »not guilty, gj-'te crowd in the court, led by women in the ladies'- gallery, applauded, bat the police quickly suppressed it. His Honor said it was a most scandalous thing that any person should behave in this manner in a court of justice. He was disgusted to see women leading the applause. This was a rnnst disgraceful thing. If he had had any idea that there would have been anything of that kind he would, have bad the ladies* gallery cleared long ago of the disreputable persons in it. His Honor added : — "The prisoner is discharged. If any of the persons concerned in the applause are brought before me I will lock them up for the night." Dr Orpen having left the dock muttering something to the jury, a man was brought before the judge, but he said he did not applaud, but only held up his hand, and he was released.