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Otago Witness, 5 December 1900, Page 29

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am not celled upon, as I said before, to show you any motive, but i£ you like to speculate as" to motives you have the evidence of the children. The state of things in this home may or may not have been as bad as the picture my friend drew of it — the mother, who was emphasised as a self-sacrificing mother, frightened also -for her own safety. I think that a more reasonable suggestion than insanity is this: that, seeing the condition of things as they were, and possibly nervous ot •her own safety and that of the children, she determined to end it with her own hand, by taking her husband's life. She has counted *he cost; she has thought it well out; she 4akes no undue risks herself. She harps on ,the statement, "I did it in self-defence, and "If I had not done it he would have killed jne." How does that square with the facts? QTou have got the idea of it all befoiehand: »t"the same time taking no risks, and availing herself of every possible defence. She has xeckoned-the cost, and her calmness after the event may well be accounted for by the fact ;of a feeling of relief having come over her after the thing is done, and now she is face to- face- with the consequences. If you are Satisfied in any way that this woman was. mBane, God forbid in such a- case that you onouM convict. If, on the other .hand, you consider Ithfe evidence conclusive, and you let yourselves ibe- swayed idly by sympathy, you can blame yourselves— not me— for the possible ultimate consequences to the community. Mr Sim asked if his' Honor intended to sum up that, night. He would occupy an hour in addressing -the .jury, and would be prepared .tofgoon if the case would finish before the court rose. , „ After a discussion, his Honor adjourned the court until 10.30 this morning, and the jury were locked up for the night.

The trial of Sarah Fogo for the murder of her husband, Thomas Fogo, was resumed in the Supreme Court on Friday morning before his Honor Mi Justice Wiliiams and a common jury. The Crown Prosecutor conducted the case, arid the accused was defended by Mr W. A. Sim and Mr J. R. Thornton. Mr Sim, addressing the jury for the defence, said: I »m certain it requires no words of mine to impress on you the responsibility that rests on you. in the preEent case, and also the terrible importance to the accused of the result of" your deliberations. I propose, therefore, gentlemen, to proceed at once to the consideration of the evidence. My learned friend seemed yesterday to be terribly afraid that you were going to disregard the <wlema oath which you have taken, and that you are not going to decide the case according to the evidence at all. I am not going to insult you, gentlemen, by suggesting for one moment that you will decide this case in any way other than according to the evidence, and any arguments I shall addresß to you during the course of my _speech will be founded on- the evidence, and on the evidence alone. Now, the case, as presented to you by th.o Crown, is that the accused deliberately murdered her husband. To put it as my learned iriend put it on another occasion, " it was a X remeditatpd crime, deliberately carried out arid relentlessly executed." These were the words which he used on another occasion, and although he wa3 not quite so rhetorical in the present case, that, in substance, is the view ■v»hich he now asks you to take — that this old lady deliberately murdered her husband. That being the theory of the Crown, I shall discuss it upon the evidence, and shall put before you the view we ask you to accept for the defence — namely, that the blow which killed the deceased was stiuck by the accused during the course of what she believed was an attack on her own life. If the blow was struck under these circumstances, then his Honor will tell you it is excusable homicide, and the accused is entitled to. an acquittal at your hands. My learned friend puts the case to you a« one of murder or nothing. I accept that position, gentlemen. I adroit

Mr Fraser : Pardon me

Mr Sim: My learned friend put it to you, gentlemen, that in this case it was impossible for you to come to the conclusion that it could Ibe manslaughter — that it was murder, a clear case of deliberate murder and nothing else. she case therefore will resolve itself into this : Is it, as my learned friend says, a c&se of deliberate murder, or is it, as we shall submit to you, a case of excusable homicide? Manslaughter is excluded from your consideration altogether. It is a case of murder or of excusable homicide.

His Honor : I do not know, simply because the Crown prosecutor ha& not T?xit the possibility of manslaughter, thst, therefore, from the evidence the jury are not justified in finding a verdict of manslaughter.

Mr Sim: I shall eubrnit to the jury, your Honor, that that is the proper view to take of the evidence. I wish to put it to the jury that it is either excusable homicide or murder.

His Honor: Very well,

'Mr. Sim : That is the view which the Crown to.ok of it, and I am supported in putting it to the jury in that way by the fact that my learned friend the, Crown prosecutor, after considering the case carefully — probably for some months, — comes to the conclusion that that is the only way in which- it can be put. Very ■well, gentlemen, let us take this theory of murder, and see how it is borne out by the evidence. Now, when you are told, gentlemen, that an old lady, who has led a blameless, upright life, suddenly murders her husband, you naturally ask what was the motive for such a deed. My learned friend says there is no necessity for him to show any motive for such a deed. But you must be satisfied, as reasonable men, that there was some motive before you can come to the conclusion that this was a, case of murder. My learned friend did not indicate any motive ; lie did not put it before you that the plain motive, according to his view of the case, was that she wanted to get rid of her husband ; but that is what he has suggested from time to time. Now. I submit to you that that is really absurd. If because this old lady gets tired of the drinking habits of her husband is it likely she is going to kill him? rWhat was easier for her if she did get tired of the life she was leading than for her to separate from, her husband. She had property of her own; her husband's habits were such that she would be entitled to a separation, and to insist upon his maintaining her, and a3 my learned friend pointed out in his opening, she would even have been entitled! to get a divorce from him, and to insist upon his maintaining her. So that if the motive is as my learned iriend suggeats7 and that is the only one possible, how inadequate it is, and how absurd it is to suppose that this old lady, who has bepn the very model of patience and longsuffering, should suddenly turn round and kill iher husband because she had got tired of his drinking habits. I submit that it is simply an insult to your intelligence to suggest that that would operate as a motive in the mind of this old lady. And what does the evidence show? It shows that she was exceedingly patient with her husband. That is the evidence of her children, and on that point they are corroborated by Mr Sligo, who tells you that she was a model wife. Mark you, gentlemen, the idea of separating from her husband ■was suggested to Mrs Fogo by her son on more than one occasion. It was suggested so recently as April last, and how did she receive suggestion ? It was indignantly repudiated ;

she said she would not separate from her husband on account of the disgrace it would bring on her family. That is the reason she gives in Aprii last for lefusing to separate from her husband, and yet the Crown ask you to believe that in September, because she is tired of her husband's drinking habits, she deliberately plans and executes his murder. I put it to you that such a suggestion of motive is wholly absurd, and absolutely inadequate to account for this deed, if it is, as the Crown suggests, a nrurder. The theory is that this old lady, who had been bearing patiently for so many years with her husband's drunken habits, and was unwilling even to legally separate the ties which bound her to her husband, suddenly changed and ruthlessly severed these ties with a butcher's knife. 'X'hat is what you are asked to believe by the Crown. Then, gentlemen, if this was a deliberate and contrived murder, would it have beea carried out in the way in which it was? What you are asked to believe is that this old lady deliberately plans to murder her husband, kills him with a knife, and then, the very moment she stiikes -the blow she summons her children as witnesses o>£ "the deed. Is that the way I ask you in which murder is carried out? If she wanted to get lid of her husband, in how miny other vf&ya could she not have got rid of him without risk — with practically no risk of- detection. If this was deliberate murder ehe must have known per-

fectly well the result would be that she must suffer death as a felon. I put it to you that had she wanted to kill her husband she could easily have suffocated him in one of his drunken sleeps. She might have poisoned him. What risk would she have run ? He was a man whose organs had all • degenerated! from chronic alcoholism. Supposing ehe had administered poison, and there had been an inquest, would she have run any risk? Supposing she had smothered him in his bed in one of his drunken sleeps, would she have run any risk? Supposing, a3 my learned friend suggests, she wanted to murder her husband, would it have been possible for her to find a worse way of carrying out her purpose, or a more certain way of securing her own conviction as a felon?

The learned counsel then referred in greater detail to the evidence, and, commenting upon it, said his learned friend would ask what about the knife? Well, what about the knife? — forwhich, according to Miss Coates's statement, Mrs Fogo said she went down to the kitchen. Now, if the case turned on Miss Coates' b recollection of the exact words, or if the whole case turned on those words, he ventured to think that the jury would hesitate before they would convict the accused; but fortunately it would not be necessary fco consider the question of whether Mrs Fogo used those words or not, because it was clear from the evidence that the accused's mental condition at that time was such that anything she said could not be relied upon at all. She was then in such a state of mental enfreblement and confusion that the jury could not rely on what she said. He ■would refer presently to whet Dr Closs had io say on that subject. The evidence showed that if Mrs Fogo had made a statement of that sort it was clear that she was mistaken. It was clear the black-handled knife was not- in the kitchen on the Saturday morning, but was in the bedroom. wh«re Mrs Fogo and her husband were. Now, let them take Miss Coates's statement and see what it amounted to. He put it that his learned friend had strained the statement in a way that was wholly unjustifiable. The statement amounted to this, that accused was asked where she got the knife, and she said she went to the' kitchen for it. ' What was the theory built upon that? That Mrs Fogo must have struck her husband on the head with the stick, and after doing that went down to the kitchen, got a knife, and came bock and stabbed her husband. But he (Mr Sim) asked : Did Miss Coate3's statement justify that? Did Mrs Fogo say when she went for the knife? Was it not perfectly consistent with that statement that the knife might have been brought up the night before? It was clear that the Crown had attempted to build far more than they were justified in doing. What was thq evidence as to Mrs Fogo's mental condition when this statement was supposed to have been made? Dr Closs told them that she was, when he arrived, in a state of tremendous excitement. Her children described her as being very excited, her eyes standing out of her head, her hair dishevelled, her body trembling, and her teeth chattering. That was her condition, and it showed what a highly nervous state she must have been in. Then Dr Clogs told them that after such a state of high nervous excitement csvme a time of collapse. The doctor agreed with the passage from Coulston which read: " The parties are inattentive, confused, lethargic, and torpid. The brain reflexes are dulled. The energising of the convolutions is slow and confused. All the higher reasoning and affective powers are in abeyance for the time being." That, Dr Clo&s said, was the correct description of a person in a state of collapse after a period of high nervous strain, pnd that was the condition in which Mrs Fogo was when she was said to have made this statement to Mies Coates. What did Miss Coates say herself about Mrs Fogo? She told Sub-inspector Kiely when she reported the conversation to him that the woman must Tie mad, and what better evidence could they hays of accused's condition than the conclusion of Miss Coates herself formed — that the old lady must have been mad when she talked about the trimmings for her bonnet or something of that sort. He put it to the jury that that clearly no reliance could be placed on the statement made by her while she was in that condition. If the case simply rested there he would be entitled to ask the jury to say that they would not place any reliance on that statement, but fortunately the case went very much further than that. It was proved to demonstration that the knife was not in the kitchen on Saturday morning, and that Mrs Fogo could never have gone into the kitchen for it, becatise it was in the bedroom on the Saturday morning. Now, on that subject they had the evidence of Miss Fogo and Mr Andrew Fogo, and also what the girl Ethel Canter told Sergeant Gilbert. He would have something to say presently about the conduct of the Crown with regard to what the servant girl, Ethel Canter, could have stated to the court, but he would first point out how clearly Miss Fogo related all the events of the Thursday and Friday. Miss Fogo told them how she was engaged on the Thursday, and how she took the knife up to her mother's bedroom on the Friday afternoon for the purpose of cutting some cake — some of her father's birthday cake. She told them everything in a way that he felt sure must have impressed the iury of her truthifulness. She said she left the knife upstairs in the bedroom because her hands were full and she was not able to carry it down again. Then they had the evidence of the son Andrew, who went into the kitchen between 11 and 12 o'clock on the Friday night when he came home. He went to the dresser and opened the drawer for the purpose of taking the knife out, but noticed that the steel was there but not the knife. His attention was drawn particularly to that part of the dresser because he spilt some sugar there which he brushed off with his handerchief. That was an exceedingly circumstantial account of the way in which Mr Andrew Fogo observed the absence of the knife, and his learned friend l said he' did not impugn the evidence of the Crown witnesses. Unless the jury came to the conclusion that the story told by Miss Fogo and Mr Fogo about the knife had been invented they must believe that the knife was not in the kitchen on the Friday night; that it had been taken upstairs by Miss Fogo that afternoon and left in the mother's bedroom, and was there on the

fatal meaning. The court knew that the attention of the Crown was drawn to the fact that Ethel Outer could give evidence in connection with this knife. Sergeant Gilboit interviewed her, and the statement he got from her was to the effect that she remembered the knife being taken upstairs by Miss Fogo on the Friday afternoon, and that it was not brought back again. The Crown were in possession of that evidence, and why did they not call Ethel Canter? He would tell them. Because the girl's evidence would have utterly destroyed the whole foundation of the cn.se for the Crown. The whole case for the Crown rested upon the tiuth of that, or supposed, statement made by Mrs Fogo to Miss Coates, and as it hud now been shown that the knile was not in the kitchen but in the bedroom on the Saturday morning, then the whole case for the Ciown went to pieces. That was why the Crown had not called Ethel Canter. But whatever the reason was, he (hlr Sim) submitted that it was a most improper thing not to call that girl. It was the duty of the Crown in every case to call every person who could throw any light on "the charge againßt the accused person. It was not the duty of the Crown to try and snatch a, conviction against an unfortunate accused. It was their duty to lay beiore the jury the evidence of every witness who could throw any light on v the subject, and that was their duty not only in ordinary cases, but ulso in capital cases. How had they abused that duty by refusing to cpII that girl, who could have corroborated so strongly the evidence of the Fogos as to the place where the knife was. So much, then; lor the knife. Then there was this further difficulty about accepting the theory of the Crown: It did not account for the position of Fogo when the- son got into the room. If Mrs Fogo struck her husband with the stick, and then weiit downstairs to get the knife, what wa3 Fogo doing all the time? How did he come to bo in the position where he was seen, standing behind the door? The Crown prosecutor could not explain that on his theory of murder. On the other hand, the explanation which he (Mr Sim) would place before the jury would show exactly how Fogo came to be behind the door. So much for the theory of the Crown. He (Mr Sim) had dealt with that theory, he had shown the entire absence of motive, and he ventured to say that unless something more could be proved to them than this theory, which was merely a suggestion, they would certainly hesitate to convict the accused of murdering the man with whom she had lived for 30 years. It was absurd to sux^poae that any sane person desiring to commit murder would carry it out in the way Mrs Fogo was said to have committed this deed. Then there was the difficulty about the knife. The jury must come to the conclusion that that part of the Crown's case had failed. And then there was the difficulty that the Crown's theory did not account for Fogo's presence just by the door. Continuing, the learned counsel said: I propose shortly to put before you the way in which we say this event must have happened. I wish to put it to you that this is the way in which it must have happened. It is the -way in which the accused said it did happen. It may be suggested that if Mrs Fogo could give any explanation of the way in which it happened, she ought to have gone into the box and have given that explanation. But I put it to you that an explanation that is according to facts, the explanation which the facts themselves afford, would not obtain any additional sanction by reason of the oath of the accused. What would be the sanction of an oath to a person faced with the gallows? So I wish" to put this explanation to you m two weys — as the explanation which the facts themselves afford of the sad event, and the explanation which the accused herself gives of that event. Before I propose to deal with the events of that fatal morning, I want to draw your attention to what Mrs Fogo's menial condition must have been at this time. Her mental condition has a very important bearing on this case. Mrs Fogo you have been told was worried because her husband's drinking habits had been getting worse. She had remonstrated with him m vain, and she had got Mr Sligo to remonstrate with him. But in spite of this his drinking habits got worse and worse. This was giving her constant worry and annoyance. Then you have, the fact that his method of sleeping during' the day and lying awake at night had the effect of keeping her awake, and making her suffer from sleeplessness ; also her statement to her son made on the Friday before the death of Mr Fogo, that she had not had any sleep for 11 nights. You may imagine for yourselves, gentlemen, what the effect would be, and you know from the passage I read you from Clouston yesterday what the effect of such a condition would be. Clouston said, and Dr Gloss agreed with him, '"' that a sufficient amount of fatigue and exhaustion from want of sleep will produce a condition in almost any brain that is closely allied to that of the monomaniac." Mr Fogo had threatened his wife, and had actually used violence to her. The effect produced on her mind was this : that she was afraid that he was going to do some violence to her, or kill her. It is clear from the evidence of her daughter and son that that is the fear she had in her mind. She was afraid when her son was away of being left alone, and spoke of this to her daughter. Then remember that most significant conversation with Mr Sligo. She made to him in the most serious way a. request that if she died suddenly lie would have some investigation made into her death. Her object was twofold : She was afraid of two things — -of being poisoned, and she was afraid on the other hand of being buried alive. Now, from whom would this danger of sudden death come? It is clear from other evidence that she expected it at the hands of her husband. I do not suggest for one moment that Thomas Fogo had any idea of murdering his wife. Unfortunately his conduct towards her had produced in her mind the impression that he had some design on her life. This is clear from the evidence of the son and daughter, and from the evidence of Mr Sligo. Eeraembering that this is the mental condition of the woman, let us come to the events of the Saturday morning. You have first of all the fact that Mr Fogo's birthday had been on the 24th. His celebrations of it had begun on the 34th, s>nd were in full swing on the Friday. He comes home intoxicated on the Friday night, and he would, of course, have some more drink during the night. His son tells us that he used to commence drinking in 'the morning. We have the bottle of gin in the bedroom on the Saturday morning, and you may take it that he had some drinks from the bottle. Then Mrs Fogo got up from bed: the evidence was that she wanted to get on with the washing. There was a big washing that morning, and she got tip early for the purpose of having it carried out. This is the lady who is supposed to have in her mind the deep design of murdering her husband! She sjets up and dresses herself. While she is dressing herself her husband asks for another drink of gin. Now, Mrs Fogo as* you know doled out the drink to Mr Fogo, and she endeavoured to restrict the consumption of it by her husband as much as possible. She refuses to give him drink, and he springs out of bed. You were told that he was a quarrelsome man, and easily provoked into a violent rage. He gets out of bed and seizes the knife lying on the dressing table, and he says: "I'll show who is master in this house: I'll cut your throat!" in order to frighten his wife. He goei and snibs the door with the knife in his hand. Mrs Fogo then seizes the stick: it stands ot the bedside, and she strikes him a blow on the back of the head, virile he ijs snibMng the door.

Dr Closs said that was exactly how such a wound as Mr Fogo had on the back of his head might have been inflicted. The Crown Prosecutor tried to make it out that this blow was struck in bed, but Dr Closs said it was more probable that it would be struck while he was engaged m snibbing the door. The blow dazed him 'foi a moment; he turns round with the knife in his right hand. He takes a step or two from thS door, and his wife sees him with the knife in his hand. She cries out, " Oh, Tom!" and this is the cry her daughter hears. She reaches towards him to get the knife out of his hand. She wrests the knife from his right hand with hei left and strikes the blow. She is in a state of frenzy : she thinks this man is going to kill her — I do not suggest he would have done so — it was one of his drunken freaks, and he was going to fiighten her. He fiightened her so far that she rushed to get the knife from him, and struck the blow without realising what she was doing. The moment the blow is struck she releases her hold of his hand and steps back. There she is with the knife in her left hand — she is a righthanded woman. My learned friend said it was quite easy to suppose that she changed the knife from her right hantl to her left. Is that likely? Would she think of such a thing as thafc? I think such a' suggestion is simply childish. Is not that the explanation : that the husband has the knife in his right hand and she wrests it from him with her left? That is the story which I submit to you in explanation of these- faces, and you have to choose between that theory in explanation of the . facts and the horrible suggestion that this woman deliberately muidered her hus.band in the, clumsy way in which the Crown suggests she carried out the deed. These are the two theories and explanations which you have to consider, and if you come to the conclusion (as, I venture to think you will without much hesitation that this is the true history of the matter; that is how thi3 sad event occurred, then you will have no hesitation in finding, as his Honor will tell you, that it is a case of excusable homicide. If Mrs Fogo. although mistaken in the belief that an attack was mada on her, gets into a state of frenzy produced by that belief, and wrests the knife from her husband's hand, and strikes the blow, it is excusable homicide. It might be suggested that when she got the knife from him. why strike the blow ? Why not throw it away ? But you are not to measure her conduct by the standard of a rational person. You are to remember the state of frenzy she is in. It may be said: Why are there no marks of any struggle. The explanation is clear enough. Because there was apparently very little struggle. Fogo c-oes to the door and snibs it; she strikes the blow on the head and steps back, and when he comes at her with the knife she advances and wrests it from him. Remember, he has been drinking that morning — that is clear, from the fact of the bottle being in the room. He would be in a fuddled pnd dazed condition from the effects of the drink and the blow on the head, and Mrs Fogo would be able without very much difficulty to wrest the knife from him. This is the only story • that explains all the facts of the case. It is clear that there was no struggle, and so you would not expect to find any signs of one. I put it to you more strongly that this is the story the facts themselves tell. If you accept it, then it is your clear duty to return a verdict of acquittal, for in these circumstances it is a case of , excusable homicide. There is a case, Eegina v. Rose (15, Cox's Criminal Cages), p. 540, which was tried before Mr Justice Lopes, where it was held that if the accused had reasonable grounds for believing that his act was necessary for the defence of his mother, the homicide was excusable. Counsel quoted as follows: — "The prisoner, a weakly young man, of about 22 years of agp, was at the time of the alleged murder, living with his father, mother, and sisters at Witney. The father, who was a very powerful man, had recently taken to excessive drinking, and while in a state of intoxication was possessed with the idea that bis wife was unfaithful to him. He had on more than one occasion threatened to take away her life, and so firmly impressed was she with the idea that these were no idle threats that the prisoner's mother had frequently concealed everything in the house which could be used as a weapon. On the night in question the deceased abused and illtreated his wife and threatened to murder her. He seized his wife and forced her into such a position that the daughters seem to have thought he was cutting her throat. The daughters and the mother shouted "' Murder.' The prisoner ran in, fired a shot, according to his own account to frighten his father, and immediately fired a second shot, which caused death in 12 hours. On arrest the prisoner said : ' Father was murdering mother ; I shot on one side to frighten him ; he would not leave go, so I shot him.' The defence set up was that the case was one of excusable homicide. Mr Justice Lopes, in his summing up, said : ' Homicide is excusable if a person takes away the life of another in defending himself if the fatal blow which takes away life is necessary, for his preservation. The law says not only in self-defence such as I have described may homicide be excusabl<s,~but al.*o it may be excusable if the fatal blow inflicted was necessary for the preservation of life. In the case of parent and child, if the parent has reason to believe that the life of the child is in imminent danger by reason of an assault by another person, and that the only possible fair and reasonable means of saving the child's life is by doing something wEich will cause the death of that "person, the law excuses that act. It is the same in the case of husband and wife. Therefore, I propose to lay the law before you in this form: If you think, having regard to the evidence, and drawing fair and proper inference from it, that the prisoner at the bar acted without vindictive feeling towards her father when he fired the shot, if yoii think that at the time he fired that shot he honestly believed, and had reasonable grounds for that belief, that his mother's life was in imminent peril, and that the fatal shot which he fired was absolutely necessary for the perservation of her life, then he ought to be excused, and the law will excuse him, from the consequences of the homicide. If, however, on the other hand, you cannot come to that conclusion — if you think, and think without any reasonable doubt, that it is not a fair inference to be drawn from the evidence, but are clearly of opinion that he acted vindictively, and had not such a belief as I have described to you, or had not reasonable grounds for such a belief, then you must find him guilty of murder." That, gentlemen, is an illustration of the way in which the laws deals with a case where the person acts in the belief that his life is in danger. In that case the woman's life was in danger. The son honestly believed that it was, and killed his father, and the judge directed the jury that they should acquit him. He was acquitted accordingly. In the present case it must be clear to you beyond doubt that Mrs Fogo was in- danger of her life. Her statement to her daughter and Mr Sligo showed clearly that this woman honestly feared that her life was in some danger from her husband. When on this morning he began brandishing this knife about, she at once jumped to the conclusion that the thing she was dreading was about to happen, and that her life was in danger. She then struck the blow which unfortunately killed him. It is clear from what she said to her son and to Sergeant Gilbert that she did not know that she had killed him, and that she did no realise exactly what she was doing. The moment he released his hold she stepped, back, and is standing there when her

son c-i»fe3 into the room. Is it not s rnorl rational explanation of the facts than this horrible and xiionstrous theory of mi rder which the Crown Prosecutor asks you to --ccept? T t is for you to say which v»« yoii will take: whether this is a case of cruel and del>bev-vto murder or the case of an unfortunate woman driven to desperation, and striking a blow which kills her husband. If you have any doubt ac all, it is your duty to lean, to the accused. Unless you are satisfied that the story which I have put before you is not true it is your duty to acquit accused. Unless you are satisfied beyona any reasonable doubt that this was a case of deliberate and contrived murder, then I say it is your duty to acquit the accu*ed. The Crown has called no direct evidence to. show how the deed was done. The only evidence of the blow is the accused's own admission, and that admission from the very first is accompanied by the statement that she did it in self-defence, aifd, " If 1 had not done it I would have been a corpse myself. That is what she said to the son, to the daughter, to Dr Closs, to Sergeant Gilbert, and to Miss Coates. That is what she said from first to last. My learned friend suggests that it is ail part of the crime: that this woman deliberately plans this murder, thinks the whole thing out, and then expects that she can escape by saying she did it in self-defence. It is absurd to suggest that if this had been » deliberate and contrived murder any sane ' person would have dreamed of carrying it out as the Crown says it has been- carried out. The only reasonable explanation is that this blow was struck in the course of what accused thought was an attack on her own life. IE you come to that conclusion it is your plain duty to acquit the accused. 1 feel very much my responsibility in addressing you m this case. I have endeavoured to put before you as clearly as I can the view we take for the defence. It will be for you to determine tho issue of the guilt or innocence of the accused. You will remember, gentlemen, the terrible importance to the accused of the result of your deliberations. It will rest with you, gentlemen, to say whether Bhe is to suffer an ignominious death or whether she is to be set at liberty and restored to her family. It will be for you to say, gentlemen, whether the crown of her martyrdom — because in reality her life during the last few yeai-3 must have been a martyrdom — whether the crown of that martyrdom shall be the gallows, or whether she will spend the rest of her days with her family, comforted by their affection and support. II will be for you, gentlemen, to determine — and I venture to think' that when you weigh the evidence and consider all I have put before you , you will be able-giadly to come to the conclusion that your oath justifies you — nay, constrains you, to return a verdict of Not guilty. His Honor in summing up said : The prisoner is charged with the wilful murder of her husband. Thomas Fogo: I need not impress on you the great importance of the issue involved in this case, both to the public and to the accused, and I have no doubt you will put away from your" mind anything you may have heard outside, and will confine your attention to the facts which have been adduced before yov. As I have said, she is charged with murder. It is not necessary to define murder that there should have been any pre-arranged scheme on the part of the accused. The crime of murder may be committed at a- moment's notice. If it suddenly comes into the mind of the person to kill somebody else, and if the person ta whose mind that idea comes carries out the . intention, that is as much amenable to tha charge of murder as if the person who struck the blow had been deliberating and scheming over the matter for months past. So in order to constitute murder is it not necessary thab there should have been any scheme thought oufc by the accused before the occurrence. If, however, the evidence pointed to this, that no such preliminary scheme existed, that fact is, of course, a consideration in favour of the innocence of the accused, because although the presence of a preconceived scheme constitutes the crime of murder, yet the absence of a preconceived scheme would naturally be taken as evidence in favour of the accused; that when, the blow was struck there was not necessarily any intention to kill. Let us look at the relations of the parties as they existed before this occurrence. It appears that the deceased and the accused were married in 1870, <md that they have two children now surviving — son and daughter ; that the husband had given way to drinking habits, and that his habits weie getting worse and worse; that he was selfish and morose when under the influence of drink, and that when he was recovering from drink he was violent, obstinate, and unreasonable ; that the accused, on the other hand, had been a good wife to him. This is testified, not only by her children, who would naturally speak in her favour, but also t>y the independent evidence of Mr Sligo. She was devoted to her husband and very patient with him. Then she was, as a^ rule, temperate, but there were occasions when she was worried that she took drink, and a very little upset her. Further, on this particular occasion the accused, according to the daughter's evidence, had not been drinking. " The daughter says that on the Saturday morning she put her arms round her mother's waist and kissed her frequently, and that there was no smell of drink about her. Neither was there any suggestion on the part of the police or anyone else that she appeared to have been drinking that morning; so that any suggestion thafc it was a drunken freak of hers, or that it was done while "" she was under the influence of liquor, would have to be absolutely put aside. Then it appears that before this occurrence the accused had complained of the want of sleep. She was worried, and her son says she looked ill, and complained that she had not slept for II nights. This is probably an exaggeration. Curiously, she went to Mr Sligo on the Thursday, and said that she desired to speak to him privately. She said to him that she desired him to make her a promise. His Honor here went over Mr Sligo' s evidence, repeating the conversation that took place. Continuing, he said: Some six months befoie her son had suggested the idea of obtaining a separation from her husband, but she declined on the ground of exposure. She appears to have been scmewhat alarmed at the conduct of her husband, and to have been much worried on that account. That is, briefly, the history of the parties up to the date of the occurrence. On the Friday the deceased was under the influence of liqxxor, and continued to be so, for he went to bed at 6 o'clock in that state. When Miss Fogo returned home that evening from the theatre, she found her mother in bed, quiet, and not excited. She was reading, and at her mother's request, before retiiing, returned to the room and put out the light. Her son returned later, between 11.30 and 11.45, and he went into the room and wished his parents good-night, as was his custom. He saw their forms in bed, and did not receive any reply from his father. That was the last time he saw him until the next morning. Still, we know that the man was killed with the knife produced, and that the knife was, as a matter of fact, in the bedroom next morning. It is a matter of great importance to consider how the knife came there, and as to that we have the evidence of Andrew Fogo, Miss Fogo, the. statement of the accused to Miss Coates, and the statement made by the servant girl to Sergeant Gilbert. Miss Fogo says she distinctly remembers taking up the knife on the Friday; i afternoon for the purpose of cutting cake in a box in the bedroom. She gives you a detailed. 1 ' account of how it was that she brought it up and left it there. Of course, she is a witness for the Crown* as well as lies brother; but «$,,

Ihe same time, it is fair comment that the son and daughter would naturally give their evidence in a. -way friendly to their mother, if they could in any. way honestly do it. It might possibly be open to suggestion that as this detailed account was not given on an earlier occasion that she had been stretching her memory unduly now. But she did say in the first instance that she had taken the knife upstairs on the Friday, and probably left it there. So that the fact of her taking the knife up to the bedroom was not new altogether. She gave a vague statement in the first instance, and since then sho has thought over the matter and remembered it more clearly; hence she gave the account the jury heard yesterday. Then Andrew Fogo says when he came home he went into the kitchen with a candle, and put his

boots in the scullery. He wanted something to eat, and opened a drawer where the knives and forks were kept, and where the steel and knife were ordinarily kept. He noticed that this knife was not there. Then the girl Ethel made a statement to Sergeant Gilbert that ihe knife was taken out of the kitchen and not brought back. Then we have the statement of Miss Coales, who says the accused said to her that she had gone to the kitchen for the knife herself. It has been suggested on behalf of the defence that at the time the statement

was made on the Saturday the accused was in

a state of reaction from the great excitement, and that nothing she said was to be depended on. There is, as I have pointed out, direct evidence about the knife, and some indirect evidence in support of the suggestion that accused did not go down that morning to fetch up the knife from the kitchen. The indirect evidence is this : the son and daughter say that the accused had a difficulty in going up

and down stairs, because she was somewhat lame, and if she had gone down hurriedly she •would probably have awakened them. The son says he is a light sleeper. That, generally, is the evidence as to the knife. Of course you

see it is a very important question in this case whether the knife was -in the room at the time

of the occurrence or whether the accused went downstairs that morning for the purpose of getting it, as the Crown suggested. If she did go down that morning for the purpose of getting it, it must have been, not for the purpose oi E&lf-deieiice, but for the purpose of aggression, because if she had gone downstairs and got out of the way of her husband there ■would be no need for her to come up again with the knife. However, the evidence of • the son and daughter, together -with the statement of the _girl Ethel to Sergeant Gilbert, negatives the idea that she went downstairs. That statement made to Miss Coates need not be accepted as absolutely true. I do not know that it follows irom that that she had gone down that morning to fetch it. It is for you to put on that statement any meaning you please. Then 3*ou have the door snibbed. Well, who snibbed it? liie suggestion is an obvious one, that if the accused snibbed the door, and knew that it was fastened on the inside so that persons from the

outside could not get in, would it be likely that ebe would ask for and call for persons to come into the room alter she herself had barred the access to the room ? His Honor here reviewed the evidence of Andrew Fogo, and then

said: That is the evidence, gentlemen. You have^ — Jieard her statement through her counsel, Mr Sim. You can give it what consideration you think proper. /You have to decide on all these materials as to- whether the accused has been guilty of murder or manslaughter, or is entitled to an 'acquittal. A person is guilty of murder, according to our Criminal Code, " if the offender xnean-s to cause the death of the person killed; if the 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, etlsnes or nofc.'' So that if you strike a person with a .deadly weapon .' meaning- to cause some injury "which may be likely to cause death, and you are reckless ( whether death ensues or not, you are guilty tbl murder. Then, again, if an offender in &n 'unlawful object does an act which the ■offender knows is likely to cause death, and ■■thereby kills a person, though he may desire fills object 'to- be effected without hurting anyfoodj 1 , that is murder. Ido not know that ihat affects tlie case. Again, if an offender does anything that is likely to cause death, and is areekless whether death ensues or not, that is the crime of murder. So that, if accused used •ihis knife with intention of killing, or used meaning to cause bodily injury which she knew ■would Tie likely to cause death, and was reckless whether death ensued or not, in that case she would be guilty of murder. Bu'fc

snurder may be reduced to manslaughter if the person who caused death does so in the heat of femssion caused by sudden provocation; and

;any wrongful act or insult of such a nature 'as to be sufficient to deprive any ordinary perKon of the power of self-control may be provoca.'i.ion if the offender acts upon it on ihe sudden, and before there has bsen time for his passion fiiO cool. That would reduce murder to man-

slaughter, so that supposing the- accused hao 1 jbeen aggravated by deceased, and had been rprovoked by Mm by some wrongful act or inisult of such a nature as to be sufficient to deprive her of all power of self-contral, that

anight be sufficient provocation to reduce an ,of£ence ~which otherwise would be murder to manslaughter. That is to say, that if, under tsprovocation, a person kills with the intention to jMH, .although without provocation the killing •with the intention to kill would be murder, [ithe provocation I have described might reduce Ahe offence to manslaughter. But the defence |in this case is that it was excusable homicide ; jjihat it was done in self-defence. Well, that [also is provided for by the Code. Section 58 of the Code provides that " everyone unlawfully sissaulted, not "having provoTced such ar assault, 'is justified in repelling force by force, if the x'orce he uses is not meant 'to cause death, or 'grievous bodily harm, and is no more than is necessary for the purpose of self-defence." This is a very material part of the section. " Everyone so assaulted," — that is unjustifiably as'iSaulted; and an assault includes an attempt, 'ex threatening by act or gesture to apply force ■jo the person of another — " eveiyone so assaulted is justified, though he catises death or ibodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm :!rom the violence with which the assault was i originally made, or with which the assailant pursues his purpose, and if sic believes, on reasonable grounds, that he cannot otherwise preserve himVielf from death or grievous bodily harm." lin order to absolutely justify the killing of another person with a deadly instrument, it must 'appear that the person who does the act did ' ft because that person honestly — and not only j-ionestly, but reasonably — believed that it was oecessary for the purpose of self-defence, and xiiat it was the only -way in which he could pre-perve-himself from death or bodily harm. So -.-hat it does not follow, because there was provocation, or "because there was a threat of vio- • snc( — it does not follow because these things •Existed that that is a justification for killing.

»r justification for using a deadly weapon. or threat of violence may reduce a rrime, which would otherwise "be murder, to manslaughter, but it does not follow because hi the existence of provocation, nor because 'liere is some fear of violence, that the homicide . c excusable. It is only excusable if the accused person has reasonable grounds for believng, snd does believe, that it is necessary to • rotect himself from death or serious injury.

v f it is reasonably necessary to protect yourself om death or serious injury io inflict a fatal > ound with % deadly weapon, you are excused

if death happens, but not otherwise. I do not know, gentlemen, that I need trouble you any further, but I shall be happy to answer any questions as to the evidence or as to the law as I have defined it to you. As I have said, ii there was no provocation, the act of the accused in killing the deceased is murder. Then, if you think there was any provocation, you have to consider whether that provocation was sufficient, according as I have- described it — that is, any wrongful act or insult ot such a nature as to be sufficient to deprive any ordinary person of the power of self-control. Any wrongful act, you see, may be provocation, but is the provocation sufficient to reduce what otherwise would be murder to manslaughter ? Then there is the further question: Was the blow stiuck by accused reasonably in order to protect herself from death or grievous bodily harm ? It is only in that event that she is excused absolutely and entitled to be acquitted. However, if there was an intention to kill, or an intention to cause bodily injury, known to the offender to be likely to cause death, and she was reckless whether death ensued or not, in either case it is murder, unless it is reduced to manslaughter by provocation, or unless it is rendered entirely justifiable by bsing reasonably necessary for the purposes of self-defence.

A Juror inquired if there was any evidence how the walking-stick, which stood beside the dressing table, came to be found where it was. His Honor replied in the negative. There was nothing to show how it got there. Mr Sim remarked that the bedroom was a very small one, and after the blow was struck by Mrs Fogo it might have dropped out of her hand, or she might have thrown it behind her.

Another Juror inquired if the deceased's son had stated whether the cake was kept in the parlour or the bedroom.

His Honor said the son had said nothing about it. It was the daughter who had said tha.t the cake was kept in a box in the bedroom.

The jury retired at 12.30 p.m. At 3.10 p.m. the jury returned for directions as to the difference between murder and manslaughter.

His Honor repeated the direction as to the law applicable to the case, as previously giveu by him, and the jury again retired. At 6 o'clock the jury returned to the couit. In reply to the Sheriff, the Foreman said: We find the accused guilty of murder, with a strong recommendation to mercy. The -prisoner here burst into tears, and a dead silence prevailed in the court for two or three minutes.

His Honor said: Prisoner at the bar.-^AH I~ have to do is to pass the sentence which the law prescribes in these cases. The jury found you guilty of murder. They have accompanied their verdict with a strong recommendation 'to mercy. That recommendation I shall, of course, forward to the proper quarter. Whether the sentence of the court will be executed or not will not depend on me, but will depend on the advisers to the Crown. I think_ I may say that I concur in the recommendation with which the jury have accompanied their verdict. I shall intimate that concurrence also to the advisers of the Crown.

Assuming the black cap, his Honor said: The sentence of the court is that you be taken from the place where you now are to the gaol, and that you be hanged by the neck till you are dead.

The prisoner was then led from the court by Mr Phillips, the gaoler, and the court adjourned until 10.30 o'clock next morning.