MURDER OF THOMAS FOGO.

Otago Witness, Issue 2430, 10 October 1900, Page 53

MURDER OF THOMAS FOGO.

ACCUSED COMMITTED FOR TRIAL.

APPLICATION TO SIT IN CAMERA

DECLINED.

Sarah Fogo was charged at the City Police Court on Thursday morning, before Mr C. C. G-raharn, S.M., with the murder of Thomas Fogo on the 29th September.

Mr J. F. M. Fraser appeared to prosecute, •and Mr Thoriiton for the accused.

Mr Thornton, counsel for the accused, appealed to his worship to have the case heard in. camera, citing authorities in support of his plea. Mr Fraser, the Crown Prosecutor, strenuously opposed the application, many, strenuously opposed the -application, finally, -when Mr Thornton asked for an adjournment to enable him to apply to the Supreme Court for a mandamus to compel his Worship to grant what he claimed as his legal right, Mr Fraser went the length of saying that if any adjournment was made, he had reason for fearing- a grave miscaiTiage of justice. Mr Graham firmly declined to entertain Mr Thornton's application for an adjournment for a day to consider his position, and ordered the case to proceed. -Mr Fraser asked that all witnesses, excepting medical witnesses and the police, be ordered out of court. The accused, he said, was charged, under section IG3 of the code, with the murder of Thomas Fogo. The section described culpable homicide as murder in tbe following cases: — (1) If the offender means to cause ihe death of the person killed. (2) If tho offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and is reckless whether death ensues or not. He (Mr s"raser) proposed to narrate as briefly as possible the evidence he would lead in the case, and to emphasise those portions of the evidence that appeared to him to have a direct or important bearing upon the .crime with which prisoner stood accused As a preliminaay step in. the case, he would first sketch out to his Worship the character of the deceased man — Ms peculiarities and habits, — and he took his facts from deceased's son and daughter, who might be deemed to have a special knowledge of the same. He (deceased) was described to have been a man addicted to drink, qviarrelsome while in drink, and occasionally violent. He was described as having recently struck his wife, as having turned his wife and daughter out of doors, and that he was intolerant of restraint, difficult to get on with, irritable when suffering a recovery from drink, and a morose and selfish man. His .general conduct was such that counsel understood that the son had endeavoured to get his mother to separate from his father, and the eon had pleaded with the father to drink less, try to make the home happier, and save accused from the incessant anxiety and worry he caused her. That was the picture drawn by the son of his father. The mother was not a total abstainer, but was not a. woman of intemperate habits. She would be better described as a woman who occasionally took a stimulant. It was not necessary for Him (Mr Fraser) to go any further back than 6 o'clock on the evening before the murder. At *6 o'clock deceased was described by his son as having had a drop of drink in him, ssnd having gone to bed upstairs. The daughter went to the theatre that night, but both the son ' and daughter saw the father between 10 and 11 o'clock at night. Both seemed to agree that he was then asleep — he was in bed with his wife, asleep. The son, the daughter, and the parents all slept in the tipper storey of the house. The daughter's room was next to the parents' room, from which it was separated by a partition or wall, which would "convey sound, and the daughter stated that she could hear voices if there was any talking going on in her, parents' room. The son slept a little further away, across the landing. Nothing •was heard during the night— no quarrelling and no loud talking. Everything was quiet until some time in the eaiiy hours of the morning — somewhere about 7 o'clock. Both son and daughter appeared to be simultaneously aroused by calls from the parents' room. The son said that he heard the calling of " Andrew,' which was his name, in his mother's voice. The daughter said that she heard "Oh! Tom," in the mother's voice, and also "Andrew" and her own name, but did not know m whose voice that was. It was very evident that where two sleepers were aroused out of a heavy slumber by calling that it would be impossible for them to say positively whose \oice it was they heard. At any rate, both made for the parents' room, and apparently they reached the door together. The door was snibbed on the inside, the key being on the outside. The son burst in the door, and his father, who was leaning against the wall, fell towards him. In the middle of the room the mother was Standing with a knife in her hand. The room ■was a small one, full of furniture. Towards the far side from the door, and on the lefthand side, was the bed. On the dressing table there was apparently another knife — a whitehandled knife, long in the blade and blunt at the point. There was a heavy stick, or perhaps counsel should call it a club, lying on the floor. The daughter rushed past to the mother, and the son caught the father as he fell towards him, and made a reach across to his mother to restrain her, holding her by the wrist. She dropped the knife, and the father apparently expired about this moment. The father was laid down by the son, half-way in and halfway out of the room, and the body being limp, it partly slipped from his grasp and fell face downwards. Accused at once said : " I have done it, I have done it. I did it in self-defence. Had I not done it, I would have been a corpse myself." Counsel would like here to remark that there was not the slightest evidence of any attack having been made on accused. He' had had her body examined, and it showed no bruises of any kind, save one small wound on the left hand, about the size of half a crown, of the existence of which she herself was unaware. When it was considered that the room was full of furniture, it was reasonable to assume that there was no struggle, or she must have shown some signs of it on some part of her person. It might be added that she bad only to raise her voice, and the son and daughter ■would have hoard her. Counsel would submit to the court that the statement about doin» it in self-defence simply told against her, for reasons he would give later on. His Worship would thus see, however, that from the first she endeavoured to excuse herself, and, as far as she could, save herself from the obvious consequences of her crime. The stick or sticks that were in tho room played a very important part in tho case. On the back of deceased's head there was a wound, which Dr Closs said could have been caused by the larger stick, and 'would (have produced insensibility. It divided the scalp right down to the bone. She told Dr Closs herself when he came to the house • "I hit him with the walking-stick, and did it." Now, counsel would point out that that blow must have been struck fiom behind. It was a blow struck not in defence, but in attack, and a blow that would probably produce insensibility. Then, perhaps, one of the roost damning features of tho case was this: that she admitted that she went to the kitchen, where the knife, with which it was alleged «&o committed the rmuder, y/as kept. She wont

to the kitchen, returned ixpstairs, and stabbed the eying man. That, counsel contended, conflicted with her theory that she committed it in self-defence. If in self-defence, why did she return armed with the knife? He (Mr Fraser) thought from the evidence that what happened was this: In the first place there could rot have been any quarrel or any struggle. She must have stiuck him on the head with the stick, producing total or partial insensibility. To what extent the man had been drinking through the night he could not say. The son said that there was a bottle of gin, almost empty, in the room. Dr Closs said, knowing the man's habits and constitution, that a blow such as was struck him would have rendered him practically helpless.- Whether she intended to produce death by the blow with the stick counsel could not say, because it was clear that it wa& after that that she went for the knife, because the doctor's evidence showed thab the blow with the stick was struck first. She went for the knfe, but, strangely enough, there was another knife in the room — one that was used for opening windows. She closed the door ond snibbed it. Was it to be assumed that the deceased snibbed the door in order to shut himself in with a woman who was armed with a weapon, and who had already assaulted him' Surely, it was more probable to assume that she closed the door 111 order to finish her purpose undisturbed. It was veiy probable that it was deceased who called, and that it was his voice that was heard. He would make towaids the door and pass accused, and while making for the door he would receive the stab. The blow was no doubt given with the deliberate purpose of killing the man. It was delivered

Mr Thornton submitted that the Crown prosecutor, in appearing for the police, had no light to address his Woiship in the way he was doing. It was simply a magisterial^ inquiry as to whether there was a'prirna facie case. He was opening -the ca&c as if it was a trial in the Supreme Court. Mr Graham said he would ask Mr Fraser to restrict himself as much as possible to what was to come before him (Mr Graham).

Mr Fraser said it was the invariable practice of all Crown prosecutors to open the case, and his Worship did not know all the facts because there was something new. Mr Graham : It would be as well if you keep to the facts, and make as few comments as possible.

Mr Fraser, continuing, said the blow with the knife was delivered m one part of the body which was certain to produce death. It was a blow delivered with considerable violence. It was a downward blow, not a thrusting blow, and penetrated some distance through the lung and down to the seventh rib. At the time of the murder there was a certain amount of excitement. She was exciied, but directly afterwards she was perfectly calm. In fact, she had a cup of tea and some bread and butter 111 the upstairs 100 m almost within sight of where her late husband was lying dead. Since then she had been perfectly cahnn and collected. She lold Dr Closs that she was prepared to take the consequences. Counsel had emphasised the hep ring of the evidence where accused al~legcd that she committed the act in self-defence. Ho would call two additional witnesses, who would tell his Worship that the day before tbe crime was committed she said to one that she had a presentiment that she was going to die suddenly, and that if bhe died she asked to have a post mortem examination held on her body, and the cause of her death inquired into. Mr Thornton : What has that to do with it. My learned friend is now commenting upon the case as if accused was on her trial.

Mr Fraser : M 3' friend, Mr Pardy, says it is the invariable practice. Continuing, Mr Fraser said accused told Mr Sligo that she had a presentiment that she was going to die suddenly — that she might get poisoned, and that she wanted her death inquired into. It was very difficult for counsel to open the case as carefully as he would have liked because he had been so frequently interrupted. He did not know that he had anytfiiig further to add. Mr Thornton: Why not adjourn the case? Mr Fraser : I have my duty to do, and I will not adjourn it. Mr Thornton : Until after lunch ?

Mr Fraser

Not for a minute

In concluding, Mr Fraser said he thought that his Worship would come to the conclusion that the crime had been premeditated, deiibeiately done, and the execution of it relentlessly carried out.

Andrew Lees Fogo deposed : I am a sharebroker, residing in Frederick street with my parents, the deceased being my father and the accused nay mother. I last saw my father alive between 11 and 12 p.m. on Friday, September 28, 1900. He was asleep with my mother. I had seen him about 5 o'clock that afternoon, passing from the shop to the lioiise. He had at that time a drop cif drink in him. When I had my tea at 6 o'clock I believe he was upstairs in bed. My father when at home was a morose man and very selfish — very hard to get on with when suffering a recovery from drink — of intemperate habits, and when under the influence of liquor very obstreperous and restless, and more difficult to get on with than when recovering from liquor. When in liqtior, if crossed, he would fly into a violent rage, apparently without provocation, ancl if my mother advised him w.ith regard 'to intemperance he would resent it very strongly. My mother never xised angry words to my father, but always pleaded- with him. I thing the liquor was gradually affecting his brain. I have known him to be violent towards my mother, even to striking her. At tho beginning of the winter I advised my mother to separate from him in consequence of his habits, but she wotild not agree. My mother is not an intemperate woman, but I have seen ncr under the influence of liquor. I was roused from sleep on the morning of the 29th, about 7 o'clock, by hearing, not a call, but a word — " Andrew " — in my mother's voice. I am absolutely certain it was my mother. I jumped out of bed, walked across the passage to my parents' door, and found it snibbed inside with the key on the outside I started to beat on the panels of the door, and cried out " Open the door." I got no reply I then burst in the door. My & ister joined me at that moment.

The luncheon adjournment was here tpken On resuming at 2 p.m., ,/4L drew L |esi Fogo continued his replies to Mr Fraser : When I opened the door, my father was leaning against the wall, on the right-hand side next the wardrobe, undressed, with the exception of a pink undershirt. I put my right arm around him, about halfway down the body. I turned towards the interior of the room, bringing him with me a little. I could then feel his Tieart beating. My mother was standing halfway between the wardrobe and the bed, in the middle of that portion of the room. She would be about 4ft from him. Slip had a knife in her left hand. That is the kmfe (indicating the weapon held up by Mr Frasor) that she had in her hand. I turned round and grasped her wrist with my left hand. As I did so, she dropped it on the' floor She either said "He would have killed me >f I hadn't struck him," or "If I had not struck him, he would have killed me." The knife she. had in her hand is usually kept on the dresser in the kitchen. I remember seeing the heavy stick with the silver knob (pioduced) on the floor in front of the di easing table. It is usually kept m a torner of the room with the carved stick (produced), which I did not notice at the time. I saw the white-handled carvingknife (also produced) on the dressing table. My sister took charge of ray mother. I put my father over my left arm and eased him down on the floor, stepping back out of the door. As I was doing so, he slipped, and fell, face

down, striking his head against a bath which was standing against the bannister. As he fell I said to her : " You have killed him," or " He is dead," or somp words to that effect. Then she answered, " I have done it," and she danced about, with her eyes staring out of her head, keeping on repeating, " I did it in selfdefence." She had oSce a red di easing gown that she was in the habit of wearing when she got otit of bed. One of her first suggestions was that I should ring up for a doctor, and in consequence I rang up Dr Clos3. The first blood I saw was on the knife. I did not see any blood in the bedroom ; but when he fell in the passage blood came from the wound. When I came up from ringing for the doctor, I paw blood ooaing from the body. I felt to see if his Heart was beating, but could not feel it I then went inside the room to where my mother was, and picked up a bottle of gin on the dressing table. There was a glass beside it, and just about a glassful lett in the bottle. My mother, who vas then shaking very much, "asked me for some, and I gave her the contents of the bottle. My mother urged me to hurry up the doctor, and I went downstair? to the telephone again. While there Dr Closs came. I met him halfway up the stairs, going up -with him, and he examined the body. My fnother was within bearing, and Dr Closs pronounced life to be extinct. She was talking incoherently, and kept on repeating : ' I did it in self-defence." When I awoke that -morning I heard her call twice. It was raining heavily at the time, ond the rain was inakirg the ordinary noise that raindrops do on a galvanised- iron root. I used to get on with my father fairly well. I had occasion to ask h.m for financial assistance recently for a somewhat lar^e amount, which he agreed to m?.ke. and made. He psked me the facts of the case, went .fully into it, and never demurred much. I am not aware that that was the cause of any friction between my mother and my father. I had only" occasion to ask him once. Of my patents 1 was on more -friendly terms with my mother ; my father was a very poor hand at conversation. I was upstairs when the police came. I .suggested to my sister thsft my mother should have something to eat before she left with the police. She had it in the parlour, but did not. eat very much. Tile heavy stick I saw lying on the floor when I went into the bedroom is usually kept by the bedside, in order to knock on the floor to arouse anyone and serve the purpose of a bell. Examained by Mr Thornton : My mother was not a. total abstainer, but her habit of life was very temperate. The suggestion of having something to eat did not emanate from my mother. My sister went downstsiis and got it for her. The police remained with my mother :n the parlour.

Re-examined: I identify the dressing gown produced as that worn by my mother on September 29, and the latch produced as that of the door which I burst in. The blind was drawn up when I entered the room.

Dr Class deposed as follows: — I knew deceased, his wife, and family very well. I was called by telephone about five minutes to 7 a.m. on the 2?th September. T went at once. I went upstairs and found the body lying partly in the passage and partly across the threshold of the bedroom door, lying face downwards in a pool of blood. I saw the knife (produced) lying close to the body in the passage on the left-hand side of the body. I examined the body, turned it over, and found life extinct. It was zrwrle, with the exception of a short flannel singlet, the front of which was soaked in blood. It was perforated on -the loft side near the top. There was a wound half an inch below the left collar-bone. It was liin long and Jin wide at its broadest pait. Its long axis was parallel with the collar-bone, and its inner angle was ljin from the left margin of the sternum or breast-bone. It was a punctuied wound, and its direction was backwards and downwards and slightly inwards to a depth of 6in. On deeper exploration it wss found to pass through the left lung and ended at the seventh rib 2in from the spine. The pleura was cut at this point. Severs! of the smaller branches of the left pulmonary vein were divided, and the upper division of the left puimonaiy artery was divided in about two-thirds of its calibie. The lung was partly collapsed, and the plural cavity contained about lOoz or 12oz of blood. There was at the back of the head, about 2Jin from the middle line and on a level with the upper margin of the right ear, a wound running horizontally, fully lin in length, and nearly two-eighths of an inch in breadth, vt this point the scalp was divided down to the bone. There was no fracture of the skull. Around this wound, and below the scalp for some considerable distance blood was effused into the cellular tissue. The heart, brain, liver, spleen, kidneys, and stomach showed signs of degeneration from chronic alcoholism. The cause of death was hemorrhage from a wound on the left side of the chest. The wound on the breast could have been caused by the knife (pioduced). When I saw deceased's wife she was veiy excited, and said it was all my fault. I should have told her husband to stop drinking. She also said : " I did it. I did it. lam prepared to take the consequences. Had I not done it, I would have been lying a corpse there myself instead of him." The wound on the head was recent, - and was probably caused by a blow. Whether it was by falling or hitting I could not say. It could have been caused by a blow "from a stick, and the appearances rather indicate that caruse. The injury could not have been caused when deceased fell, as described by his son. She said in the parlour, after I had viewed the body : " I hit him on the head with the walkingstick, and did it." That statement was made quite voluntarily. If the deceased had been struck by the silver-knobbed stick produced, it is quite possible that it would cause this wound on the head. The blow on the head was, I think, caused befoie the deceased was stabbed. •Applying my knowledge of deceased's condition as his medical adviser, I do not think that blow would have caused insensibility, but I think it would have stunned him — that is, reduced him to a dazed condition. The wound on the head would be inflicted while he had his back more or less to the striker. The position of deceased when he was stabbed would probably have been an upright one. Mr Thornton intimated that he had no questions to ask the witness.

Dr Emily Siedeberg deposed that at the request of the police she examined the body of the accused at the gaol on the previous afternoon. She found one bruise about the size of half a crown on the outer side of the left upper arm, about 3m above the elbow. The bruise was of recent date, and probably had been caused within a week. Witness's ionpiession was that accused was not aware of the existence of the bruise Being stout in body she would bruise fairly easily. There were nc other biuises or rnaiks except of scars of a very old date.

Cross-examined : Witness did not see any scar on the little finger of the accused's right hand.

Mr Thornton asked witness to examine the hand again and sec if there was a scar.

Witness, after looking at the finger, said tho cell she examined the accused in had very little light in it, and she took the blue mark not to be a scar. She now saw it was a scar of recent date.

To Mr Fraser : The scar was about three or four days old. It was a cut, but not deep. To Mr Thornton : The cut might have been made on Saturday morning.

Georgina Agnes Fogo, daughter of accused, said &he lived with her parents in Frederick street. She was at the theatre on the night of the 28th ult. Her parents were in bed when

she got home, and she went to their bedroom. [ 1 Witness's bedroom was next to her parents', and 1 j was separated by a partition, not a thick one, i and she could hear voices in ordinary cconve- t 1 sation from her room. Witness did not hear 1 : her parents speaking after she went to her ' . room. Nothing occurred to disturb witness , during the night, bui about 1 o'clock in the : morning witness heard a voice or voices calling. : She could not tell whose voice it was. She heard a, voice calling " Oh, Torn," then "Andiew" twice, and then " Geoigie," witness's own nanib. Witness jumped out of bed, '■ and got into the passage the same time as her j brother. • He was beating his hands on the j panel of his parents' bedroom door, and trying i the lock at the same time. He burst the door in. ' Witness could not remember exactly what she ' saw, but remembered a bedy flash past her, as ] it were, as she went to her mother. Her mother ' was ju=rt about the middle of the 100 m, find ' her father near the door. Her mother had a black-handled knife in her left hand. Thii knife was usually kept on the dresser in the kitchen. Witness's biother giipped hexmother's left hand with his left hand, and the i knife fell to tho floor. Witness -said, '• Oh I mother, what has happened?" and she replied, " I did it, I did. If I had not done it I would I have been a corpse there myself." She said •fiom time to time that she did "it in self-defence, ' snd that if she had not she would hove been a •corpse herself. Witness saw the smaller stick ■ of tho two produced on the floor, but not the silver-tipped one. Witness's father, when in ! his 'sober aense.=, wag a very morose man, and 1 would not speak kindly to those inside the 1 house although he would be pleasant with ' those outside. He was of rnt<-mperpte habits, I and when ho came into the house in liquor I he would either lie on the sofa o; want some- I thing to eat. and beeprue violent if he did not ! £jet it. When he was under the influence of draik he was very liberal in money matters. .He was liberal to witness. He was often violent I to witness and to her mother. When witness first saw her mother she had the wrapper on, but it was not buttoned. Jane Coates. police matron, paid it was her duty to visit all female prisoners. She had ac- I cused under- her charge. On Saturday last, ! about noon, Mrs Fogo bad a conversation with. 1 witness on that day. Mrs Fogo wa& speaking 1 about the death of her husband, and saying ! what a dreadful thing it was. She said, " I did it in self-defence. I must have been mad when I did it." Witness said, " How did the I knife come to be in the room? " and accused replied, " I went to the kitchen for it." She said it was the knife she used for cutting the meat. Witness had warned her not to discuss, the matter. She (accused) said, " I know lam all the lime convicting myself." Sergeant Gilbert stated that on tho morning- of Saturday, the 29th September, he went to deceased's house, accompanied by Constable Daubnoy. Deceased was on the floor of the bedroom, between the wardrobe and the bed, on Mb back. Witness told accused, who he was, as he was in plain clothes, and she replied, " I am responsible. I done it. I done it with a knife." Witness showed her the blackhandled knife (produced), and she said, " That's the knife I done it with. I didn't intend to kill him ; but I believe if I hadn't killed him he would have killed me." She then said, " I suppose you are going to take me? " Witness said, '" Yes." She said, " I will go with you.' After a few minutes, she said, '" If you have no objections, I will walk along with you." Witness said, "' Your son has sent for a cab." She said, ''I'd raiher walk," so they walked along to the central station. Before they started, her daughter asked her if -she would have a cup of tea and something to eat. She said "Yes," and asked witness if he would wait, and lie consented to do so. She was very calm and

spoke very nicely. Witness saw that the bedi " room door had been forced. j Alexander Sligo, bookseller and stationer? said he had known deceased and his wife fop] many years. On the 27th September Mrat Fogo spoke to him, and asked why he had not ( been at the house the previous Sunday. HjcT replied that he had called and knocked, butt no one came. After further con\ r ersation, sliq\ said she wanted to say a word to witness prijT vately. She then said, "If anything happen^ suddenly to me, I want you to promise that ar^ inquest will be held and a post-mortem to bo made." Witness treated the remark lightly^ and she said, " Well, one never knows wha\\ may happen, and I have a, fear of being burie<l alive," paid then added, " One never knows, it might get poisoned, or anything." Witnes^; said if inching the promise would ease he* mind, certainly he would make it. ' \ Mr Fraser intimated that this closed the case for the Crown. J i. Mr Thornton said he did not purpose calling any evidence, and accused was then cautioneq; in the usual wt>y, Mr Thornton intimating that - she reserved her defence. i, Acctised was committed for trial at the netf,{ , criminal session of the Supreme Court. i , Mr Thornton said he supposed his WorsS^. 1 ■would hear an application for bail. His Worshixa thought the application 3h<*. be made to the judge of the Supreme Courfy He did not like talcing upon himself to gran? it. Mr Thornton said that meant that he coul<? not make ±he application, becau.se the judgl would be away at the Court of Appeal all tha time. Mr Graham asljed when the' judge- leffc-fo£ Wellington ? ■> Mr TJiornlon replied he was on his way bytrain -that day. I Mr Fraser said, so far as he -knew, bail was never gianted in a murder case. j Mr Thornton said in respect to the present application there wtie no objections in the surrounding circumstances. The question was I what would weigh with his Worship. Judge Coleridge had said that the granting of bail was dependent upon the probability of accused! ! making an appearance for trial, and in thi^ case no doubt could be entertained that accused would appear and taka her trial if bail waa j allov/od. Counsel also quoted an opinion of Lord Abinger, who said that an accused was presumed to be innocent until the trial took j place. The only reason for locking up an accused person was that where theie was a doubfc as to tlieir making their appearance at the trial. Counsel submitted that if two substantial sureties were found they would see that accused appeared. There had been no attempt on Mis Fogo's part to escape justice, and seeing that she was over 60 years of age, and had never been in such a position before, it would be better for her to be with her/ friends. • <* Mr Fraser repeated that wherever there had been a murder case he had never known tho accused to be admitted to bail. There was no hardship in it being refused, because the session, commenced next month.. Worldly position had; absolutely nothing to do with the question. It was tho gravity of tho crime and of the' charge made against the accused person that must guide the magistrate. His learned friend had been unable to refer to any cases in thia colony whero bail had been granted, and ha (Mr Fraser) must protest against any bail bsingj allowed. J Mr Graham: At present I do not see rnyg, way to agree to the application. Possibly, or?' more ruaturo consideration, I may make ujf. my mind to do so, and I can let you know. • Mr Thornton : Very good, your Worship. The case was concluded shortly before £ o'clock. v