Chapter XIII: Section V: Of the Moral Evidence

It is not my object to treat under this head of the moral evidence generally, which is required to establish a charge of poisoning. But as it is well known that in criminal trials medical witnesses have for the most part nothing to do with the moral proof, while at the same time in cases of poisoning the medical and moral circumstances are always intimately interwoven and apt to be confounded together, it is necessary for me to specify those particulars of the moral evidence, which either require some medical skill to appreciate them, or fall naturally under the cognizance of the physician in his quality of practitioner. I shall enter into greater details under this section than may perhaps appear to the medical reader necessary, chiefly that I may redeem the pledge given in the introduction to the lawyer and general reader, and endeavour to show how powerful an instrument a medico-legal investigation may become in skilful hands, for throwing light on almost every branch of the evidence.

The moral or general proof in charges of poisoning is almost always circumstantial only. The circumstances of which it usually consists relate, 1. To suspicious conduct on the part of the prisoner before the event, such as dabbling with poisons when he has nothing to do with them in the way of his profession, or conversing about them, or otherwise showing a knowledge of their properties not usual in his sphere of life:—2. To the purchase or possession of poison recently before the date of the alleged crime, and the procuring it in a secret manner, or under false pretences, such as for poisoning rats when there are none on his premises, or for purposes to which it is never applied:—3. To the administration of poison either in food, drink, medicine, or otherwise:—4. To the intent of the prisoner, such as the impossibility of his having administered the poison ignorantly, or by accident, or for beneficial purposes, alleged or not alleged:—5. To the fact of other members of the family besides the deceased having been similarly and simultaneously affected:—6. To suspicious conduct on the part of the prisoner during the illness of the person poisoned,—such as directly or indirectly preventing medical advice being obtained, or the relations of the dying man being sent for, or showing an over-anxiety not to leave him alone with any other person, or attempting to remove or destroy articles of food or drink, or vomiting matter which may have contained the poison, or expressing a foreknowledge of the probability of speedy death:—7. To suspicious conduct after the person’s death, such as hastening the funeral, preventing or impeding the inspection of the body, giving a false account of the previous illness, showing an acquaintance with the real or supposed effects of poison on the dead body:—8. To the personal circumstances and state of mind of the deceased, his death-bed declaration, and other particulars, especially such as tend to prove the impossibility or improbability of suicide:—9. To the existence of a motive or inducement on the part of the prisoner, such as his having a personal quarrel with the deceased, or a hatred of him,—his succeeding to property by his death, or being relieved of a burthen by it,—his knowing that the deceased was with child by him.

Upon many of the particulars now enumerated, important evidence may be derived from the medical part of the investigation; and not unfrequently such evidence can be collected or appreciated only by means of a medico-legal inquiry.

1 and 2. On the first two articles, suspicious conduct or conversation on the part of the prisoner before the crime, and the possession or purchase of poison by him, little or nothing need be said. The medical witness may of course be asked whether the conduct or conversation proved betokens an unusual acquaintance with poisons and their effects. And his opinion may be referred to regarding the nature of suspected articles found in the prisoner’s possession. As to the purchase of arsenic under the false pretence of poisoning rats, it may be observed, that a great deal more stress is usually laid on such evidence than it seems to deserve; for there are few houses, in the country particularly, which are not more or less infected by them. On the other hand, too little weight is attached to the circumstance of the purchaser not having warned his household of poison being laid. Such conduct ought in my opinion to be accounted extremely suspicious; for so far as I have remarked, the fear with which unprofessional persons regard the common poisons is such, that I can hardly believe any master of a house would actually lay poison without warning the servants and other inmates of his having done so.

3. The next article, which relates to the proof of the administration of poison, will require some details.

Direct proof of the administration of poison by the actual giver is very rarely attainable, that part of the transaction being for the most part easily concealed. The proof of this point is justly accounted, however, a very important part of the evidence; nay, on some recent trials in this country the prosecution has failed apparently for want of such evidence, although the case was complete in every other particular. It is generally constituted by a chain of circumstances, and these are often strictly medical, as will now be shown by a few examples.

In the first place, pointed evidence as to the individual who gave the poison may be derived from the chemical investigation,—for example, from the comparative results of the analysis of the poisoned dish, and of the articles of which it consisted. I am indebted to my colleague, Dr. Alison, for the following excellent illustration from the case of William Muir, who was condemned at Glasgow in 1812 for poisoning his wife. In the course of the day on which she took ill she was visited by a farmer of the neighbourhood, who had studied physic a little in his youth. He learned from her that she had breakfasted on porridge a short time before she felt herself ill, and that she suspected the porridge to have been poisoned. He immediately procured the wooden bowl or _cap_ in which the cottagers of Scotland keep the portion of meal used each time for making the porridge; and finding in it some meal, with shining particles interspersed, he wrapped a sample in paper, and took the proper measures for preserving its identity. He then secured also a sample from the family store in a barrel. The two particles were produced by him on the trial; and from experiments made in court the late Dr. Cleghorn was enabled to declare, that the meal from the bowl contained arsenic, and that the meal from the barrel did not. These facts, besides proving that the woman had next to a certainty taken arsenic in the porridge, likewise, in conjunction with other slight moral circumstances, established that the poison had been mixed with the meal in the house, and on the morning when the deceased took ill, before any stranger entered the house. The procedure of this farmer was precisely that which ought to be followed by the medical practitioner in a similar conjuncture.

An instance of an opposite description related by M. Barruel also deserves notice, as showing how evidence of this kind may afford, in otherwise suspicious circumstances, a strong presumption of accidental poisoning. Sixteen people near Bressières in France having been severely affected with vomiting and colic immediately after dinner, the bread, which was suspected, was examined by Barruel, and found to contain a little arsenic. The flour of which the bread was made had been taken from a large store of it, which, on being examined, was also found to be similarly impregnated. As it was extremely improbable that any one either could or would poison so large a mass of flour, to attain any malicious object, it was inferred that the arsenic had been mixed with it accidentally, and that the accident might have arisen from grain having been taken by mistake to the flour-mill to be ground, which had been intended originally for seed, and sprinkled with arsenic to destroy insects.[121]

It may be worth while observing, in the present place, that in the instance of poisoned wine very important evidence may be obtained by examining whether the wine with which the cork is impregnated contains any traces of the poison. This method of investigation occurred to me in a very singular case of poisoning with arsenic in champagne, which happened in a baronet’s family in Scotland. In this instance, however, such analysis was proved to be unnecessary; for the gentleman himself brought the bottle from his cellar, broke the wires and drew the cork, immediately before the wine was drunk.[122]

All evidence of the like nature, though it is at present often procured from other sources, should, for obvious reasons, be invariably collected, if possible, with the aid of a medical person. If again a medical man is called to a patient evidently affected with suspicious symptoms, and finds himself obliged to declare such to be his opinion, his thoughts, as soon as he has given directions for the treatment, should be turned towards that part of the evidence, for the securing of which he is naturally looked to as the person best qualified by previous education and his opportunities at the moment. With this view, therefore, having ascertained in what articles it is possible for poison to have been administered, he should at once endeavour to secure the remains of the particular portion partaken of by his patient, as well of the general dish, if it is an article of food, and of the ingredients of which the dish was ostensibly made, not forgetting the salt with which it was seasoned. A case occurred some years ago in the north of Scotland, in which arsenic was administered in porridge by mixing it with the salt.

It is of great consequence, before proceeding to analyze such articles, for example suspected dishes,—to be particular in investigating every thing connected with the cooking, serving, and eating of them. By doing so, not only will the chemical analysis be facilitated, but likewise facts in it will be accounted for, which might otherwise prove embarrassing, and even lead to the drawing of false conclusions from the result of the analysis. This statement is very well exemplified by the following incident which occurred to myself. In 1827 a family in Portobello were poisoned by the maid-servant; and it was believed, that, for the sake of a trick, she had, while carrying to the oven the beef subsequently used at dinner, maliciously mixed with it tartar-emetic or some other poison. One-half of the beef having been preserved, and two persons of the family having been very severely affected, Dr. Turner and I, to whom the case was remitted, made little doubt that we should discover the poison by chemical analysis: but we did not. Being subsequently employed by the sheriff to inquire into the particulars, I found that the poison had been mixed with the gravy, which had been consumed almost to the last drop,—that the gravy had been poured over the beef,—that the upper half of the beef had been eaten,—and that the remainder which we analysed had been transferred upon a different plate from that on which it was served for dinner. These particulars accounted sufficiently for the poison not having been discovered.

Another mode in which the chemical part of the inquiry may contribute to discover the individual who administered the poison is by a comparative examination of the persons of the deceased and the accused. The following very pointed illustration has been published by MM. Ollivier and Chevallier of Paris.—A woman who lived on bad terms with her husband was found dead on a roadside the morning after having been seen drunk in his company in the neighbourhood. The mouth, throat, and gullet were proved by a careful analysis to be corroded with nitric acid, the stains and traces of which were also found on various parts of her dress, and on the hair, neck, and arms, but not on her hands, and not lower down the alimentary canal than the upper fourth of the gullet. Ollivier, suspecting from these appearances, that she had not taken the acid voluntarily, requested to see the husband; whereupon there were found on his coat, trousers, and hands, a great number of stains, which, like those on the deceased, were proved by chemical analysis to have been produced by nitric acid. Here it was scarcely possible to avoid inferring, that the man got these stains while endeavouring to force his intoxicated wife to take the poison Marks of nail scratches were also observed round the mouth and on the throat; whence it was reasonably inferred, that, having failed in his original plan, he had suffocated her with his hands.[123]

While these illustrations are given of the conclusiveness of the chemical evidence in fixing the administration of poison on a particular individual, it is essential likewise to observe that the same kind of evidence may be at times equally conclusive of the innocence of a person unjustly suspected. This obvious and important application of a chemical inquiry is forcibly suggested by the following particulars of an incident related by M. Chevallier:—An individual was accused by a woman of having tried to poison her; and she represented that he had put the poison into her soup, while it stood from one day to another in an iron pot. On making a careful analysis of some of the soup which remained, Chevallier found it so strongly impregnated with copper, that, supposing the sulphate was the salt mixed with the soup, ten ounces must have contained twenty-two grains. It then occurred to him, that it was important to examine the iron pot, in which the poisoned soup was represented to have been kept; for the probability was that a large quantity of the copper, if any salt of that metal had really been contained in the soup, would have been thrown down by the superior affinity of the iron, and consequently that a coppery lining would be found on the inside. He was led, however, to anticipate that no copper would be found there, because there was no iron dissolved in the soup, as would have been the case if copper had been precipitated from it by the iron of the pot. And accordingly he not only found no copper lining the inside of the pot; but likewise, on following the process described by the accuser as the one pursued in cooking the soup and in subsequently poisoning it, he satisfied himself by express trial that there was nothing in the circumstances of the case which could have prevented the iron from exerting its usual action on the salts of copper. These conclusions, coupled with certain facts of general evidence, proved substantially that the suspected person had nothing to do with the crime charged against him; and he was therefore discharged.[124] A case somewhat similar will be related under the head of Imputed Poisoning.

In the second place, evidence as to the person who administered the poison may be procured by considering the commencement of the symptoms, in relation to the time at which particular articles have been given in a suspicious manner by a particular individual. The import of facts of this nature can be properly appreciated only by the medical witness; for he alone can be acknowledged as conversant with the symptoms which poisons produce, the intervals within which they begin to operate, and the circumstances in which their operation may be put off or accelerated.

Few cases will occur in which it is not possible to procure evidence of the kind, when diligently sought for. It is often too very decisive in its operation on judicial proceedings. In the case of Margaret Wishart tried at the Perth Spring Circuit in 1827 for poisoning her blind sister, a man who lodged with the prisoner and cohabited both with her and with the deceased, appeared at first from general circumstances to be implicated in the crime. He had left the house, however, on the morning of the day before that on the evening of which the deceased took ill; and he did not return till after her death. Now her illness commenced suddenly and violently; and arsenic was the poison which caused it.[125] It was quite clear, therefore, that the poison could not have been administered, at least in a dangerous dose, so early as the day before she was taken ill; and such I stated to be my opinion, on a reference from the Lord Advocate. The evidence being also otherwise insufficient, the man was set at liberty. In the case of Mrs. Smith tried here in February of the same year, this branch of the evidence was made the subject of question under more doubtful circumstances. The deceased certainly died of poisoning with arsenic, and the prisoner was strongly suspected of being the poisoner for many reasons, and among others because, on the evening before the morning on which the deceased took ill, the prisoner gave her in a suspicious manner a white-coloured draught. Here the possibility of the draught having been the cause of the symptoms must be admitted. But as they did not appear for eight hours after the draught was taken, I stated in my evidence that it was improbable the dose, if it contained arsenic at all, contained a quantity sufficient to cause the violent symptoms and death which followed.[126]

The correspondence in point of time between the appearance of symptoms of poisoning, and the administration of suspicious articles by an individual, constitutes still more decisive proof in a set of cases, in which it is of great value, as the chemical evidence is generally defective,—namely, where poisoning is attempted with repeated moderate doses. If the several renewals or exacerbations of illness correspond with the periods when suspicious articles have been given by the same individual, the circumstantial evidence of the administration may be even tantamount to direct proof. Thus, on the trial of Miss Blandy for the murder of her father, it was proved, that Mr. Blandy on several occasions, after the prisoner received certain suspicious powders from her lover, was taken ill with vomiting and purging; and that on two occasions recently before his death, when he got from his daughter a bowl of gruel which contained a gritty sediment, he was attacked after a very short interval with pricking and heat in the throat, mouth, stomach, and bowels,—with sickness, vomiting, gripes, and bloody diarrhœa.[127] Here the proof of administration by the prisoner was complete.

These examples will show how the evidence of a particular person’s criminality may be affected by the relation subsisting in point of time between the commencement of the symptoms and the suspicious administration of particular articles. But farther, the special period at which the symptoms begin may even at times supply strong evidence of his instrumentality, although there may be no direct proof from general evidence of his having been concerned in administering anything whatever in a suspicious manner. This statement is well exemplified by the case of Mrs. Humphreys, who was convicted at the Aberdeen Autumn Circuit in 1830 for poisoning her husband, by pouring sulphuric acid down his throat while he was asleep. It was clearly proved, as will be seen under the head of sulphuric acid, that the deceased died of this poison; and the administration was brought home to the prisoner in the following singular manner. The only inmates of the house were the deceased, the prisoner, and a maid-servant. The deceased got a little intoxicated one evening at a drinking party in his own house; and after his friends all left the house, and the street-door was barred inside, he went to bed in perfect health, and soon fell fast asleep. But he had slept scarcely twenty minutes, when he suddenly awoke with violent burning in his throat and stomach; and he expired in great agony towards the close of the second day. Now sulphuric acid, when it occasions the violent symptoms observed in this instance, invariably excites them in a few seconds, or in the very act of swallowing. It was, therefore, impossible that the man could have received the poison at the time he was drinking with his friends; and as he knew he had not taken any thing else afterwards, and it was fully proved that he had been asleep before his illness suddenly began,—it followed that the acid must have been administered after he fell asleep, the accomplishment of which was rendered easy by a practice he had of sleeping on his back with his mouth wide open. But, after he gave the alarm, the door was found barred as when he went to bed. Consequently no one could have administered the poison except his wife or servant; and it was satisfactorily proved, that no suspicion could attach to the latter. Such was one of the principal train of circumstances, which, as it were by a process of elimination, led to the inference that the wife was undoubtedly the person who administered the poison. Other circumstances of a similar tendency were also derived from the medical evidence; but these it is unnecessary to detail at present. I have related the particulars of the whole case fully elsewhere.[128] The prisoner strenuously denied her guilt after being sentenced, but confessed before her execution.

4. The next article in the moral evidence relates to the intent of the person who is proved to have administered poison. When the administration is proved, little evidence is in general required to establish the intent. It is sufficient that the giver knew the substance administered was of a deadly nature; and in regard to any of the common poisons this knowledge is sufficiently constituted by his simply knowing its name.

In some cases, however, the exact nature of the poison is not established with certainty; and then something else may be required to prove the prisoner’s knowledge, and through that knowledge his intent. In the case of Charles Munn, formerly alluded to [p. 50], arsenic was the poison presumed to have been taken by the deceased. But the purchase or possession of it by the prisoner was not for some time satisfactorily established; neither was there any chemical evidence, the deceased having lived forty days and upwards after taking the poison. It was proved, however, that whatever it was which had been administered, the prisoner knew very well that what he gave was deleterious; because he persuaded the deceased, who was pregnant by him, to take it by assigning to it properties which no drug either possesses, or is so much as thought by the vulgar to possess. On one occasion he persuaded her that it would show whether she was with child, and on another that it would prevent people from knowing she was with child. In such cases, then, good evidence may be derived from the arguments used by the giver to persuade his victim to take the poison; and sometimes, as in the instance now mentioned, it will lie with the medical witness to inform the court whether or not the reasons assigned are false.

Sometimes it has been pleaded by the prisoner that he gave the poison by mistake. In all such cases, if he descends to particulars, which he cannot help doing, there is every likelihood that the falsehood of the defence will be made evident by the particulars of the story not agreeing with other particulars of the moral or medical evidence. At present it is only necessary to allude to inconsistencies in his story with the medical facts. No general rules can be laid down on the method of investigating a case with a view to evidence of this kind: I must be satisfied with an illustration from an actual occurrence. On the trial of Mr. Hodgson, a surgeon, at the Durham Autumn Assizes in 1824, for attempting to poison his wife, it was clearly proved, that pills containing corrosive sublimate, and compounded by the prisoner, were given by him to her in place of pills of calomel and opium, which had been ordered by her physician. But it was pleaded by him, that, being at the time intoxicated, he had mistaken, for the shop-bottle which contained opium, the corrosive-sublimate bottle which stood next it. This was certainly an improbable error, considering the opium was in powder, and the sublimate in crystals. But it was not the only one which he alleged he had committed. Not long after his wife took ill, the physician sent the prisoner to the shop to prepare for her a laudanum draught, with water for the menstruum. When the prisoner returned with it, the physician, in consequence of observing it to be muddy, was led to taste it, before he gave it to the sick lady: and finding it had the taste of corrosive sublimate, he preserved it, analyzed it, and discovered that it did contain that poison. The prisoner stated in defence, that he had a second time committed a mistake, and instead of water had accidentally used for the menstruum a corrosive-sublimate injection, which he had previously prepared for a sailor. This was proved to have been impossible; for the injection contained only five grains to the ounce, while the draught, which did not exceed one ounce, contained fourteen grains.[129]

I believe it must be allowed, that, as the medical inquiries preparatory to trial are commonly conducted without the inspector being made acquainted with the moral circumstances in detail, it is rarely possible for him to foresee what points should be attended to, with the view of illustrating the intent. But the case now related will show that it is impossible for him to render his inquiries too minute or comprehensive; and more particularly, it shows the propriety of ascertaining, whenever it is possible, not only the nature but likewise the quantity of the poison.

5. The next article among the moral circumstances,—the simultaneous illness of other members of the family besides the person chiefly affected,—depends for its conclusiveness almost entirely upon the researches and opinion of the medical witnesses.

The fact, that several persons, who partook of the same dish or other article, have been seized about the same time with the same symptoms, will furnish very strong evidence of general poisoning. A few diseases, such as those which arise from infection or from atmospheric miasmata, may affect several persons of a family about the same time; and hysteria, and epilepsy, have been communicated to several people in rapid succession.[130] But I am not aware, that, among the diseases which resemble well marked cases of poisoning either with irritants or with narcotics, any one ever originates in such a way as to render it possible for several persons in a family to be attacked simultaneously, except through the merest and therefore most improbable accident. Cholera perhaps is an exception. But when cholera attacks at one time several people living together, it arises from bad food, and is properly a variety of poisoning. In such cases, too, the fallacy may in general be easily got the better of, by finding that the store or stock, from which the various articles composing the injurious meal have been taken was of wholesome quality.

Hence it may be laid down as a general rule, that, perhaps if two, but certainly if three or more persons, after taking a suspected article of food or drink, are each affected with symptoms, furnishing of themselves presumptive evidence of poisoning, and have been seized nearly about the same time, and within the interval after eating within which poisons usually begin to act,—the proof of poisoning is decisive. Several late cases might, in my opinion, have been decided by this rule. Thus it might have decided the important case of George Thom tried at Aberdeen in 1821 for poisoning the Mitchells, and likewise that of Eliza Fenning, about whose condemnation some clamour was made in London in 1815. In both instances, as will be mentioned under the head of arsenic, the symptoms were developed so characteristically, that from them alone poisoning with arsenic might have been inferred almost to a certainty. But even if the symptoms had been somewhat less characteristic, all doubt of general poisoning was set aside by the fact, that four persons in the former case, and five in the latter, were similarly and simultaneously affected, and all of them at an interval after eating, which corresponded with the interval within which arsenic usually begins to act.

Sometimes it happens, that while one or more of a party at a certain meal suffer, others escape. Such an occurrence must not be hastily assumed as inconsistent with poison having been administered at that meal. For the guilty person may have slipped the poison into the portion taken by the individual or individuals affected.

If it be proved that all who ate of a particular dish have suffered, and all who did not have escaped, the kind of moral evidence now under review becomes strongest of all. It is well for the medical jurist to remember also, that such evidence is very useful in directing him where chiefly he should look for poison.

At other times it happens that the several people affected, suffer in proportion to the quantity taken by each of a particular dish. Too much importance ought not to be attached to the absence of that relation; for it has been already mentioned that habit, idiosyncrasy, and the state of fulness of the stomach at the time, will modify materially the action of poisons. But when present, it will often form strong evidence.—A good illustration of what is now said may be found in the case of Thomas Lenargan, tried in Ireland for the murder of his master, Mr. O’Flaherty. He had for some time carried on an amour with O’Flaherty’s wife; and afterwards, to get rid of the troublesome surveillance of the husband, contrived to despatch him by poison. The crime was not suspected for two years. Among the facts brought out on the trial the most pointed were, that O’Flaherty’s daughter and two servants were affected at the same time with the very same symptoms as himself; that they had partaken of the same dish with him; that the severity of their several complaints was in proportion to the quantity each had taken; and that others of the family, who did not eat it, were not affected.[131]

Another remarkable instance of this kind has been recorded by Morgagni. A clergyman, while travelling in company with another gentleman and two ladies, was setting out one afternoon to resume his journey after dining at an inn, when he was suddenly taken ill with violent pain in the stomach and bowels, and soon after with vomiting and purging. One of the ladies was similarly affected, but in a less degree; and likewise the other gentleman, though in a degree still less: but the other lady did not suffer at all. Morgagni found, that this lady was the only one of the party who had not tasted a dish of soup at the commencement of dinner. But he was puzzled on finding that the gentleman who suffered least had taken the largest share of the soup, while the clergyman had taken less than either of the two that were seized along with him. He then remembered, however, that in the district where the accident happened, it was the custom to use scraped cheese with the soup in question; and on inquiry he was informed that they had each added to the soup a quantity of cheese proportioned to the severity of their illness. Here, therefore, Morgagni was led to suspect the presence of poison; and accordingly, after the whole party had fortunately recovered, the innkeeper acknowledged, that in the hurry of preparation, he had served up to his guests cheese seasoned with arsenic to poison rats.[132] This interesting anecdote shows, that the truth in such cases is not always to be discovered without minute inquiry and considerable adroitness. In the case of poisoning with arsenic in wine formerly alluded to,—where all the individuals at table, to the amount of six, were severely affected during dinner,—the soup was the article suspected, because all had partaken of it; and, accordingly, the soup and vomited matter were sent to me for analysis. On detecting a trace of arsenic in the vomited matter, but none in the soup, I suggested that some other article might have been used in common by the party, and mentioned the wine as a probable article of the kind. It turned out that all had drunk a single glass of champagne from a particular bottle; and in the wine remaining in this bottle arsenic was found in the proportion of half a grain per ounce.[133]

Cases of this nature are so instructive that no apology need be made for mentioning one example more which lately came under my own notice. In the case of Mary Anne Alcorn, convicted here in the summer of 1827, of having administered poison to her master and mistress (a case already referred to for another purpose, p. 75), it was proved that a white powder was introduced in a suspicious manner into the gravy of baked beef, which gravy was subsequently poured over the beef. Now the master of the family dined heartily on beef, potatoes and rice-pudding, and mixed the greater part of the beef gravy with his pudding; the mistress ate moderately of the first slices of the beef, took very little gravy, even to the beef, and none at all to the pudding; a little girl, their niece, dined on pudding alone, without gravy; and the prisoner dined after the family on the beef and potatoes. Accordingly the master suffered so severely as for two or three days to be in danger of his life, the mistress was also severely, but by no means so violently affected, the little girl did not suffer at all, and the servant had merely slight pain and sickness at stomach. The evidence thus procured was exceedingly strong, more particularly when coupled with the fact, that the beef used was half of a piece, the other half of which had been used by the family two days before, without any ill consequences.

6. The next article of the moral evidence relates to suspicious conduct on the part of the prisoner during the illness of the person poisoned. Under this head it is necessary merely to state what I conceive to be, with reference to the present branch of the proof, the duty of the medical practitioner who happens to attend a case of poisoning.

In such a conjuncture he is undoubtedly placed in a situation of some delicacy. But on considering the matter attentively, good reasons will appear why he should adopt the course, which, I believe, our courts of justice will expect of him, and keep some watch over the actions of any individual who is suspected of having committed the crime. On the one hand, no one else is by education and opportunities so capable of remarking the motions of the different members of the family dispassionately, without officiousness, and without being observed. And on the other hand, it is undoubtedly a part of his private duty as practitioner, to protect his patient against any farther criminal attempts, as well as part of his public duty to prevent the vomited matter and other subjects of analysis from being secretly put away or destroyed. No one can be so occupied without many accessary particulars coming under his notice. And certain it is, that on several trials the practitioner has contributed, with great credit to himself, a considerable part of the pure moral proof. For an example of discreet and able conduct under these trying circumstances, the reader will do well to refer to that of Dr. Addington, the chief crown witness, both as to medical and moral facts, in the case of Miss Blandy.[134] It is almost unnecessary to add, that in acting as now recommended, the physician must conduct himself with circumspection, in order to avoid giving unnecessary offence, or alarming the guilty person.

7, and 9. On the seventh article, which respects the conduct of the prisoner after the death of the deceased, and on the ninth, which relates to the existence of a motive or inducement to the crime, nothing need be said here. But on the

8th article of the moral evidence,—comprehending the death-bed declaration of the deceased, his state of mind, his personal circumstances and other points which prove the possibility or impossibility of voluntary poisoning—a few remarks are required, because an important and little understood part of the practitioner’s duty is connected with this branch of the proof.

The question as to the possibility of the poisoning being voluntary is one upon which the medical attendant will be expected to throw some light, and into which he will also naturally inquire for his own satisfaction. In doing so his attention will be turned to circumstances purely moral, which may not only decide that question, but may also criminate a particular individual. His inquiries must therefore be conducted with discretion, and for obvious reasons should be confined as much as possible to the patient himself. They are to be conducted not so much by putting questions, as by leading him to disburden his mind of his own accord; and it is well to be aware, that there is no one of whom a patient is so ready to make a confident on such an occasion as his medical attendant.

If disclosures of consequence are made, and the attendant should feel it his duty to look forward to the future judicial proceedings and to the probability of his appearing as a witness, he ought to remember the general rule is, that his account of what the patient told him is not evidence in the eye of the law, unless it was told under the consciousness of the approach of death. Of late, however, the rigour of this principle in law has been occasionally departed from in Scottish practice; and in regard to medical facts ascertained in the way here mentioned, many strong reasons might be assigned for such relaxation. Evidence of the kind is technically called the death-bed declaration of the deceased, and is justly accounted very important.

Here it is right to take notice of a part of the death-bed evidence, although it does not properly belong to the question of suicide, because it should always be collected if possible by the medical attendant, and with much greater care than is generally bestowed on it even by him—I mean the history of the symptoms previously to his being called in. On this part of the history, including particularly the time and manner in which the illness began, medical conclusions of extreme consequence are often subsequently founded: On a single fact or two may depend the fate of the prisoner. It is not enough, therefore, in my opinion, that such evidence formed a part of the death-bed declaration. If a fact derived at second hand from the deceased, and stated too by him from memory, is a material element of any of the medical opinions on the trial, it is of much importance that the information be procured by a medical man; and that the person who procured it, whether professional or not, was aware at the time of the probability of its becoming important. Such evidence, although not collected with these precautions, is admissible; but I have so often had occasion to witness the carelessness with which the previous history of cases is inquired into both in medical and medico-legal practice, that I do not see how it is possible to put trust in evidence of the kind, unless it bear marks of having been collected with care, and under an impression of its probable consequence. These statements are well illustrated by the following example:—On the trial of Mrs. Smith for poisoning her maid-servant with arsenic, it was proved that some drug was administered by the prisoner in a suspicious manner on a Tuesday evening. Now it appeared at the trial improbable that this drug contained a fatal dose of arsenic, because to her fellow-servants, of whom one slept with her, and others frequently visited her, the deceased did not appear to be ill at all for eight hours after, or seriously ill for nearly a day. On the contrary, however, a surgeon, who was called to see her on the following Saturday, a few hours before her death, deposed that, according to information communicated by herself, she had been ill with sickness, vomiting, purging, and pain in the stomach and bowels since the Tuesday evening. This evidence, if it could have been relied on, would have altered materially the features of the case, as it would have gone far to supply what all the medical witnesses considered defective, namely, proof of the administration. But at the time the surgeon made his inquiries, he did not even suspect that the girl laboured under the effects of poison. Neither he therefore nor his patient could have been impressed with that conviction of the importance of the information communicated, which was necessary to insure its accuracy, particularly as it related to a matter usually of so little consequence in ordinary medical practice as the precise date of the commencement of an illness; and it would consequently have been rash to adopt it in face of more direct and contrary evidence. Any one who examines the details of this trial as I have reported them, will at once see how much the case turned on the point now alluded to.[135]