TRIAL OF SAMUEL HASTINGS.

HON. JOHN S. CASKIE, JUDGE.

*In the Circuit Court of Law for Henrico Co. Criminal Term.*

#### Commonwealth *vs*. Samuel Hastings.

Wednesday, April 30, 1851.

For the prosecution, John B. Young.

For the defence, Robert G. Scott and W. Wallace Day.

The prosecution was for the alleged murder of Robert T. Childress, and was founded on Sec. 1, 2, 3, 4 and 5, chap. 191, Code of Va., page 723.

“ *I.*Murder by poison, lying in wait, imprisonment, starving, or any wilful, deliberate and premeditated killing, or in the commission of, or attempt to commit arson, rape, robbery or burglary, is murder of the first degree. All other murder is murder of the second degree.”

“ *II.*Murder of the first degree shall be punished with death.”

“ *III.*Murder of the second degree, by a free person, shall be punished by confinement in the penitentiary not less than five, nor more than eighteen years.”

“ *IV.*Voluntary manslaughter, by a free person, shall be punished by confinement in the penitentiary not less than one, nor more than five years.”

“ *V.*Involuntary manslaughter, by a free person, shall be a misdemeanor,”

The Indictment contained three counts, each for the alleged murder of Robert T. Childress, on the 30th September, 1850.

1. Charging the assault as made with a certain stick in the right hand held, and the blow as given on the head, of which the *45stricken lingered till the 4th of November then ensuing, and died.

2. Charging the blow as given on the left side of the head with a wooden stick, in the right hand held, and concluding as before.

3. Charging the blows as given on the head, face and shoulders with a large stick, in the hand held, and concluding as before.

Under this indictment the accused might be found guilty either of murder in the first or of the second degree, or of voluntary, or involuntary manslaughter.—See Code of Va., page *777.*

The accused had been bailed and appeared in discharge of his recognizance. He has for several years resided in Richmond, and kept a grocery store near Cary street. He seemed about 30 years old, had black hair and a dark complexion, with light eyes, a nose of aquiline form, and the under jaw slightly prominent.

He pleaded “ Not Guilty” to the indictment.

The following were the Jury.

William D. Gibson, John L. Taylor, William Colgin, Thomas Leftwich, William G. Crenshaw, C. M. Pleasants, Massena Beaz-eley, Valentine Winfree, John J. Morris, S. M. Zachrisson, Edwin Holderman, Jacob Woodson.

For the prosecution.

*Mrs. Caroline Childress, sworn.*

On Sunday night, about the last of September, Mr. Childress came home after I had gone to bed ; I suppose he was intoxicated; he went to bed ; he halloed three times in the night and I never heard any thing more of him during the night. The next morning he got up and called for his clothes, and after dressing himself, he went out; I walked out not long after, and as I went out, he came in at the gate ; I was out a very little while when I heard a great lumbering sound, and presently a coloured woman called to me and said, “ Miss Caroline, they are killing your husband I said, “what!” she said, “they are killing your husbandI turned back, and when I got in sight, I never saw such a sight—Mr. Childress was all covered with blood ! (here the witness seemed much affected; covered her face with her handkerchief and paused in her narrative ); his clothes were as wet with blood as if they had been dipped in a tub, and Mr. Hastings was over him with a broken *46stick in his hand ; the stick had a head as large as a small child’s fist; I saw Mr, Hastings slap his jaws twice ; Mr. Childress said, “ Mr. Hastings, don’t beat me any moreI went on up stairs and Mr. Childress came up; I didn’t think Mr. Hastings would follow him, but he followed him up stairs, and beat him over the head and back with the broken stick; he beat him in the most cruel way ; no brute was ever so beaten. Wednesday night Mr. Childress was very sick; he said to me, Caroline, I think my skull is broke, will you send for Doctor Bolton; I said, yes; I sent for Doct. Bolton ; when he came and examined him he asked who on earth had done this; when told 'twas Mr. Hastings he said he ought to have been arrested on the spot; my little daughter cried and said, “ Ma, Mr. Hastings has treated my pa so shamefully; he beat him all the way up stairs.”

*By Young.*

Our house was on 15th street, over Mr. Hastings’ store, next to Mr. Branch’s; you go in from the back yard ; when I saw Mr. Childress, he was on the first pair of steps leading up from the yard ; I saw Hastings strike him and he followed him up the second flight of steps and beat him over the head ; Mr. Childress said, “ Mr. Hastings don’t beat me any more, you have beaten me enoughwhen Hastings struck him, his hat was off; I don’t think he went out Monday; he went out a little while Tuesday ; he was sick all day Wednesday and Wednesday night; Doct. Bolton came early Thursday. We staid in that house a week from the time Mr. Childress was beaten and then went to Union Hill to live; Mr. Childress lived five weeks to a day; during that time he sometimes went out, but generally staid at home.

*Cross-examined Day.*

We had been living in that house near Cary street five years and two or three months; we had been renting the house from Mr. Hastings during this time and he lived below us. Mr, Childress and I had been twenty years married; at first Mr. Childress was sober and hard working, but afterwards he got to drinking; I cannot tell how many years he was in the habit of drinking; he troubled his own family when he was drunk, but there never was a better man when sober; I never heard that he troubled any body out of doors.

Day.

Mrs. Childress, did you ever strike him ?

This question was objected to. After a brief argument,

*47
      *The Court*said that in a prosecution like this, it was competent to prove the deceased’s general character, as whether turbulent or peaceable, and it was also competent, by fair cross-examination, to extract from the witness what might affect her credibility.

Witness.—I *heme*struck him ; I have, in a passion, said I wished he was dead ; Mr. Childress went away once in a vessel; I don’t recollect, but I may have said that I wished the vessel would sink. I don’t know that I ever said I wished he would go away and never come back. I have said a great many things I am now sorry for. Mr. Hastings and Mr. Childress had sometimes had altercations before this, but I was up stairs and did not hear much of it; Mr. Childress got drunk very often. I had not been to sleep when he came home ; he halloed once in the night, and at that time he halloed three times; 1 suppose Mr. Hastings heard it. The negro woman I have spoken of was standing in the yard; when she spoke I was coming from round the rear of the house. I passed between Hastings and Mr. Childress; I said not a word to Mr. Hastings, because I was afraid ; I said nothing, could not say any thing; I gave no alarm and made no cry; Mr. and Mrs. Dowd live near, very few steps off; I gave no alarm because I was afraid ; I left the house because I did not like to stay there; Mr. Hastings told me if I would leave Saturday, he would not charge for a month’s rent, but I couldn’t move Saturday, and so he charged a month’s rent, which I paid, but I thought it hard in him. It was up the second flight of steps that Mr. Childress went, followed by Mr. Hastings; Mr. Childress held on by the banisters ; I think there are two banisters.

*Cross-examined by*Scott.

Yes, I have been living there five years, but I can’t tell certainly whether there are two bannisters, I think there are. Mr. Childress went out sometimes ; I don’t think he went out the Thursday the Doctor came; I can’t tell you what days he went out; he never worked ; he was not able to work after he was beaten. The day we moved, he brought down a few things out of the house; he helped Mrs. Brown to bring down a cupboard and a bureau part of the way ; after we went to Union Hill, 1 do *not*think he ever went to the races ; I don’t believe he could have gone with his head all bound up ; I heard him say he had been to the Court-House once; we moved *48on Monday ; he walked up to Union Hill, but he was not able. Yes! Mr. Scott, I have known many persons do what they were not able to do, but they could not help themselves. I expect it is nearer from Union Hill to Fairfield race course, than to our former house. He went out sometimes, but he did not stay long ; I think he came to see the Mayor, to see what he could do with Mr. Hastings. I don’t think Mr. Hastings’ house *was*in a very populous part of the town, but all the ground about there is a good deal covered with houses. I *did*go to some of my neigh-bours and complain; I never said either to Mrs. Dowd or Mrs. Brown, or any of my neighbours, that I did not see Mr, Hastings strike Mr. Childress; I never *could*have said such a thing; I went to Mr. August’s office to inquire what could be done; Mr. Watkins asked me if I could prove that Hastings struck Mr. Childress; I told him I thought I could. When I returned, I called Mrs. Dowd up stairs, showed her Mr. Childress’ head and asked her if she had seen Hastings strike him; Mrs. Dowd said she had seen Mr. Hastings jerk Mr. Childress’ feet from under him; Mrs. Dowd was in the yard when I came in ; she had a bucket of water. I went to a lawyer to see what I could do with Mr. Hastings; I did not want to sue him; I wanted none of his money, but I wanted to punish him ; and I saw Mr. Young and did what he told me to do; I came here to Court and went before the Grand Jury ; this was in October. I believe Mr Childress had a looking-glass when he went up to Union Hill. The Doctor washed and dressed his head and put bandages upon it; I don’t know that he was in Mr. Blankenship’s before we went to Union Hill; I do not recollect much about his going out on Friday, or Saturday, or Sunday; I can’t tell what day he came to the Mayor’s Court, but it must have been within two weeks after we went to Union Hill, because he never sat up at all for two weeks before he died. I could not say what days he went out, and what days he staid at home; I wouldn’t believe he went to the race course, he didn’t often go to such places; yes! he got drunk, but he drank his own, he paid for all he drank. He once put his thigh out of place ; Doct. Dove attended him ; I don’t know whether he was drunk or not when he did it; he was sober when he was brought home. I don’t think one of his legs was dropsical; he was remarkably healthy ; had a good constitution ; when he had *49a fit of drunkenness he was not attended by doctors. On Union Hill, Doctor Bolton attended him all the time ; the dressing was kept on from the time the wound was first bandaged: he sometimes bought things for the family; he went sometimes to Mr. Larmand’s and sometimes to his brother’s house.

*By*Young.

It has been many, many years ago, I could hardly tell you how long since his hip was put out of joint; he has since walked somewhat lame and with a stick generally; the stick Mr. Hastings beat him with, was Mr, Childress’ own stick ; I don’t know what became of it; I was told it was burnt; it was a good sized stick, with a knob about as big as a small child’s (head ?) As I came in Mr. Hastings slapped him, and then Mr. Childress said, “don’t strike me any more; Mr. Childress said often he never would get over it; he said so from the first.

*Mr.*Young.

At this point I feel that it is proper that I shall make a statement to the Jury, and I will do so under oath if required by the counsel for the defence. Late in October, of last year, Mrs. Childress came to me, and with tears and weeping, such as she has exhibited to-day, stated the facts of the assault she has testified to ; I sent her before the Grand Jury, who made a presentment of Samuel Hastings for the assault.

*James Bolton, M. D.,*sworn.

On the first Thursday in October last, which was, I think, the 3rd day of the month, I was called to see Mr. Childress immediately after breakfast; I found him lying in bed ; there was a wound on his scalp; I enquired how he received it, and his wife told me he had been beaten by Mr. Hastings; I expressed my surprise that something had not been done for the wound at the time; the hair was matted and bloody, and the blood had not been cleansed away from the region of the wound ; I said also, that I was surprised nothing had been done with Mr. Hastings; Mrs. Childress said Mr. Childress had made a noise, I think she said, in his sleep. The cut did not penetrate the bone, or the pericranium of the bone; after so much neglect and delay, I did not expect the wound to heal immediately, and I therefore cleansed it; shaved off the hair aroundit and supported it by a bandage; I ascertained that he was a man of intemperate habits, It appeared to be a contused wound,as if made by a blunt weapon moving rapidly; he went to Union Hill about a week after the injury; he may perhaps have gone, influenced *50partly by my advice, as I thought the purer air would benefit him; I attended him there every other day for some weeks; about three weeks after he moved, 1 was summoned hastily to see him, and on going in, I found him sitting in an easy chair—his face livid'— his breathing laboured ; he did not appear to be conscious ; on being called to and told the doctor was come, he raised up and said, “ is he ?” or something of the kind, and after being thus roused, he relapsed into a state of coma. His pulse was feeble ; his respiration difficult; the surface of his body cold; I was alarmed and sent for the leecher; I doubted the propriety of taking blood with the lancet, because of his very feeble state. I remained during the leeching and watched the effect; the leeches did not take hold readily until his skin was washed with warm water ; much to my satisfaction, he improved under the leeching ; the next day he was better, but unable to lie down, and when I asked if he would not like to lie down, he said he was afraid he would suffocate; he continued to improve for a day or two ; at about the end of a week, he relapsed into a comatose state *;*two or three days before this, I had observed an oedematous swelling of one or both of his legs; what in popular language would be called a *dropsical swelling.*On Sunday morning, feeling uneasy, I called in Doctor Snead, and asked him to visit him with me, and we examined him together; we thought the brain affected; Doct. Snead called my attention to a peculiar sound of the heart; what we call “ the bellows sound;” Doct. Parker also visited him with me ; I requested him to do so because I knew he had been paying much attention to diseases of the heart; when Doct. Parker visited him with me, the “ bellows sound” had become very feeble; it was hardly perceptible ; on Sunday night or Monday morning, he died. Doctors Snead and Parker and myself, conducted a *post mortem*examination ; the wound on the head had not healed at all; it had a glazed, unhealthy appearance ; under the wound was a suppurating cavity which I had observed when he was alive; on cutting through the scalp the vessels of the scalp were found very much engorged with blood, so that blood poured out of them; on the outer surface of the skull there was a dark red spot under the wound, as though the bone were bruised; the pericranium (which is the outer membrane, immediately covering the skull) was diseased—al*51most disorganized—it peeled off under the finger; in the natural state, this membrane is very tough and adheres firmly to the skull; on the inner side of the skull, the vessels were deeply congested to an extent corresponding with the suppurating cavity on the upper side ; the *dura mater*(the outer membrane of the brain) was fairly blue from the quantity of blood in it; the *arachnoid*was very full of fluid—there was a great deal of this fluid ; we opened the brain and ventricles; the latter were very full of fluid; there were probably from four to six ounces in the ventricles and *arachnoid*together; the wound I have spoken of, was on the left side of the head ; on the other side there was a bruise on the bone, somewhat similar, but the scalp was not cut; one of the eye lids was black and swollen, which was evidence of bruises about the face. We suspected some disease of the heart; the chest was opened; the lungs were pretty healthy ; they had the natural *crepitus*under pressure ; the interior of the heart was also perfectly healthy; there was no inflammation. Doct. Parker passed his finger into the *aorta,*and said, “ I think I feel some spicula of bone;” I cat off a portion of the aorta and we found some minute spicula of bone, in the tube near to the part where the valves are fastened, but these *“*spicu-la” could not interfere with the motion of the valves.

*By*Young.

The cut on the head was an inch and a half in length ; there is a very thick, tough membrane under the skin on the head, which it requires a severe blow to cut through. I saw him generally every other day, but when he was very ill, I saw him as much as three times a day; I dressed the wound first with dry lint and a bandage; I gave him no medicine then ; I directed that his diet should be nourishing and his bowels be kept regular; from his previous condition and habits, I thought he could not bear either depletion or much stimulation. From the time I first found him in the comatose state 1 have mentioned, I did not think he would get well; two or three days after this, I observed this dropsical swelling of the legs; it is very common with persons of intemperate habits ; there was considerable congestion on the inner side of the skull under the wound ; yes sir, the outside blood vessels of every head, *do*communicate immediately with the inside vessels, through the *diplo'é,*the spongy portion of the skull; in the natural condition, the *arachnoid*pro*52duces just fluid enough to lubricate the parts, and prevent rough friction ; the fluid may be seen glistening, but there is very little ; the *pia mater*is between the arachnoid and the brain ; I did not see any appearance of disease of the pia mater; the structure of the brain appeared perfectly healthy; I do not think five weeks long enough to have extended the disease much to the brain ; several months might have done so ; the inner ventricles of the brain were found congested. These spicula of bone in the heart are very common in the old; persons of fifty years of age very seldom fail to have such spicula within the heart, but these minute bony formations do not at all interfere with the circulation. The medical men, who examined the body, *unanimously*concluded that the patient’s death was caused by the wound on the head. There was one other appearance in the patient, which I omitted ; for several days before his death, his eyes were unnatural, there was pus or purulent matter formed in them.

*Questioned by Dr.*Merritt.—There was no separation of the dura mater from the skull.

*By Dr. C. P.*Johnson.

The whole dura mater was in a state of congestion ; the middle meningeal artery gave no evidence of inflammation; the wound was over the left parietal bone, a little behind a line if drawn directly over from ear to ear. I cannot say what was the exact position of the head for an hour or two before death.

*By Dr. L. W.*Chamberlayne.

The pericranium had not come off before Doct. Snead removed a portion of it with his finger or thumb ; there was no congestion of the lungs.

*By Dr. Charles B.*Gibson.

On the outer skull, the discolour-ed spot was caused by the vessels of the bone being full of blood ; it could not be removed by wiping; on the inner table the discoloration was caused by engorgement of the vessels.

*By Dr. Jas. H.*Conway.

There was no effusion of pus or lymph on the dura mater; congestion there, was all I expected and all I found. The second sound of the heart was perfect.

*Cross-examined by*Day.

Mr. Childress was lying in bed when I first saw him, the 3rd of October ; the wound had not been dressed by a medical man; I cannot say whether it had been dressed at all; it had a very neglected appearance ; my direc*53tions in general were that he should keep quiet and free from irritation; should have light and nutricious diet, and that his bowels should be kept open and regular; I would *not*have approved of his using ardent spirit, or working or walking about the streets and city from one end to the other; I think a fall against some blunt object might have produced the same kind of wound as this; there was general improvement up to the time when he went to Union Hill; he complained once on *the Thursday,*when I was called so suddenly to see him, of shortness of breath, but it did not seem important; I consider that symptom as indicating the preliminary stage of the disease of the brain and lungs which I afterwards found; I applied topical treatment (leeches) to the region of the lungs, over the chest, under the collar bones ; I should always apply topical treatment over the Oigan which was most affected ; I was *then*doubtful which was primary, the affection of the brain or of the lungs ; it was one or the other, and I thought a topical remedy applied to the lungs safe treatment; this was Thursday of the week before he died, about ten days before he died; by the treatment I have mentioned, both the lungs and the brain were relieved ; he improved for several days. Two or three days before he died, I observed him getting much worse; he was weaker; stupor came on Sunday morning. I have an impression that the pericranium was not all removed. One of the properties of the arachnoid is to secrete fluid; if none were found there, I should conclude there was disease; it is now the best opinion among anatomists that the arachnoid does not connect with the ventricles of the brain; there are, however, different opinions on the subject. There was no blood in the serous fluid we found ; it was excessive in quantity, so much so that in familiar terms, not strictly medical, I would call it a case of dropsy of the brain. The leg was puffy in feeling and appearance; my attention was called to it by Mrs. Childress, and I bandaged it. I should not be surprised to find symptoms of dropsy in the head of a drunkard, and it would be more apt to develope itself in a patient of debilitated constitution than in one in strong condition ; dropsy would not be more apt to show itself in the brain than in other parts of the body; There was no appearance of concussion of the brain; I think if concussion of the brain had occurred at the time of the blow, *54he would have fallen ; his symptoms were rather congestion and compression than inflammation.

*Cross-examined by*Scott.

I feel quite convinced—I have no doubt—painful as it is to say it—that the blows caused the death ; there may be room for d-oubt; there is ground on which medical men may doubt, but I have no doubt myself. In treating the lungs, I intended to affect the congestion of the brain, which was a prominent symptom ; I believe the injury to the brain was the primary cause of the congestion of the lungs; I am not certain but that even the dropsy of the leg might have been caused by the congestion of the *brain;*any cause which impedes the general circulation, might produce a dropsical swelling any where in the body. I think both legs were somewhat dropsical, but I do not recollect distinctly except as to -one. I don’t think the *post mortem*examination was at all directed to the dropsy in the legs : perhaps if we had so directed our attention, we might have ascertained whether it was of recent or ancient origin. The spicula of bone were just where the valves join the aorta. I should have considered it very imprudent in him to walk to the race-field, and to go into shops ; it would greatly increase his peril; his getting drunk would certainly have added greatly to his peril.

*By*Day.

*I do*think, since the post mortem, and considering the nature of the wound, that such a wound would have placed even a healthy person in jeopardy. Yes, sir, there may be cases of *latent hydrocephalus*where there would be quite as much serous fluid in the head, as in this case.

Thursday, May 1st, 1851.

*-Albert M. Snead, M. D.,*sworn.

On Sunday morning, at the time referred to by Doct. Bolton, I met him and was requested by him to see one of his patients, whom he regarded as in great danger. I visited Mr. Childress, with Doct. Bolton. I endea-voured to converse with the patient, but it was impossible to get any intelligible answer out of him. Doct. Bolton mentioned that his affection was of the head and of the lungs; I noticed that his eyes were bathed in *pus*; after a time, I observed to Dr. Bolton that he had a very sick patient,—one who was going to die, *55and to die *"*by way of the brain.” I placed my ear to the region of the heart, and detected the “ bellows’ sound and we suspected that the lining membrane of the heart was inflamed. On Monday I saw him again; the “ bellows sound” was still perceptible, but very much diminished. Doct. Bolton is mistaken as to the time of the death; it was Monday night, or Tuesday morning that he died. I attended and aided at the *post mortem*examination ; the wound on the head was nearly circular in form, and there was an abscess beneath it; the pericranium was so much diseased, that when the scalp was removed, I easily removed with the bulb of my thumb, a part of the periosteum—prov-ing that it was diseased and partially destroyed; the skull bone was discoloured ; the *dura mater*congested and discoloured ; we also found the *pda mater*considerably congested, though Doctor Bolton did not remember it. The *arachnoid*was very much distended with fluid ; perhaps four ounces of fluid were there, but I cannot say certainly ; on the other side of the head there was a bruised place, which was not important, unless the fact that a bruise remained five weeks, (supposing the blow inflicted when the other was,) proved that it was a violent blow. On examining the heart, we found no organic disease or derangement; ’twas just in the state in which we might expect to find the heart of any other person not dying of disease of the heart; there were a few little bony fragments near the valves, but not such as would interfere with circulation ; such phenomena are very common in old persons. The inner surface of the skull was discoloured and ecchymosed almost coextensively with the outer abscess; Doct. Parker concurs with me in thinking that the *pia mater*(membrane immediately investing the brain) was congested. When I take the whole case; the history of it by Doct. Bolton, and what I saw in the patient during life, and in the subject after death, my mind is brought irresistibly to the conclusion (however painful it may be) that there was a direct, continuous and positive connection between the injury to the scalp and the death of the man.

*Cross-examined by*Day.

I did not observe the legs, but I observed that even the arms and other parts of the body were in an *mdematose*state, tending to a dropsical habit. I accounted for the “ bellows murmur” of the heart, by supposing a very great paucity of blood, very poor in quality, and scanty in quantity, *56and by supposing a diseased state of the lining membrane of the heart.

Day.

Doctor Snead, how do you trace the connexion which you suppose between this wound on the head and the death ?

Witness.—When I find a patient who has received a heavy blow, whether inflicted by any one or no one, affected with coma and stupor—not to be roused—with eyes suffused with pus, and so, dying; when afterwards I find beneath the wound a suppurating abscess; the pericranium disorganized by disease; the skull bone bruised; the inner skull discoloured to the same extent ; the vessels of the dura mater and pia mater greatly congested, and a quantity of fluid, greatly unnatural, in the arachnoid and ventricles; I *must*connect the state of the skull outside and inside, with the effusion on the brain which caused the death. We did not precisely ascertain the quantity of liquid ; we had no means of ascertaining it; perhaps it would have been well that we should have done so, but I did not then consider it essential. I should think a blow of this kind would be apt to knock a man down, but it would not necessarily do so. There was no unnatural quantity of serum in the lungs. When I heard the “ bellows murmur," I did not consider it the most serious symptom, but as indicating a disease of the inner lining membrane of the heart, which ought to be *treated;*such a state of the heart is serious, but if treated promptly, not fatal.

*Cross-examined by*Scott.

Doct. Bolton did not tell me anything about bandaging his legs; I am certain the man died Monday night. The blood vessels of the pia mater were unnaturally full; the arachnoid in a drunken man, who has long been a drunkard, may and no doubt often does, exhibit such excessive effusion of fluid as was seen in this case; my own experience does not bring such cases to my memory, but I have read of such. If there were no manifestations of its presence during life, I should not expect, even in case of a drunkard, to find such an amount of fluid; this man did, during life, give manifestations that his brain was affected.

*W. W.*Parker, *M. D.,*sworn.

I met Doct. Bolton, who informed me that he had a very interesting case of congestion of the lungs which had yielded very rapidly to treatment. Not long after, Doct. Bolton informed me that he had a patient (the same *57he spoke of previously) who presented the “ bellows murmur” of the heart; as I was then paying some attention to diseases of the chest, I went with him. With the stethescope I could not perceive any sueh sound ; the patient was comatose—insensible ; there could be no doubt that his death was near, and we were not surprised to hear of it the next morning; I attended and aided the *post mortem*examination ; my recollection is much the same as Dr. Bolton’s; the wound was nearly circular—very unhealthy in appearance—as though it had had no tendency to heal; the bruised state of the outer skull was very perceptible and extensive. I did not observe as much *ecchymosis*inside, but I observed a quantity of blood effused from the inner table of the skull, which I frequently wiped away ; the pia mater was very much congested ; there was ten times as much fluid in the arachnoid as I ever saw in a head; the lungs were as healthy as any I ever examined ; the heart was healthy; there were small bony structures in the heart; the smallest I have ever seen when I have found them at all in the heart.

*Cross-examined by*Scott.

Doct. Bolton said he was surprised at the rapidity with which the congestion of lungs had yielded ; he mentioned the patient’s intemperate habits. A long life of intemperance might certainly cause as much fluid on the brain, but not without manifestations of it before death, such as coma, stupor and insensibility. I have read of a case in which as much as eleven ounces of fluid were found in the head, but that man was long a valetudinarian. There were from four to six ounces in Mr. Childress’ head. My attention was not called to his extremities.

*Ji. T. B. Merritt, M.*D., sworn.

I have heard the evidence in this case ; my opinion is that the death was caused by the wound ; the difficulty of breathing, in my opinion, arose from the pressure on the brain; I do not think there was at any time congestion of the lungs, because in that low state of health the lungs, if congested, would not have relieved themselves ; the «edema-tous state of the legs and other parts of the body, is a state very often found in cases of low health and advanced stages of disease ; in such cases the processes of secretion and absorption are very irregular and thus this condition of body may be caused.

Cross-examined.—1 do not think the fact that the leeches would *58not take hold at first, indicated the state of surface caused by congestion of the lungs ; often they will not take hold when the skin is not clean, and it requires to be washed. Leeching the chest might have and probably would have relieved the head ; my practice, during twenty-five years, has been principally in the country, where we do not leech much, but I have cupped the chest for affections of the head ; I might in such cases bleed from the arm.

(Here Doct. Merritt’s testimony was interrupted, and when the trial was resumed, he was not again called. To save the time of the medical witnesses, all their testimony on both sides was heard together.)

For the defence:

*John Dove, M.*D., sworn.

I knew Robert Childress for twenty-five or thirty years; he was a man of very intemperate habits; he broke his thigh in a drunken frolic in 1838, and I set it; I had great trouble—much more than usual—in treating it, and when it healed, the limb was shortened so much as to render a stick necessary in walking. I have heard the evidence of Doct. Bolton, Doct. Snead and Doct. Parker, concerning the wounds said to have been inflicted on his head by the prisoner, and I have examined and weighed it for myself, together with their opinion as to the probability that his death was caused by the wound on the left parietal bone. Knowing as I do, that there were causes and agents growing out of his habits which were likely at any moment to produce the death of which he died, as evinced by the autopsy, and there being several symptoms absent which are necessary to prove satisfactorily the effects of such a wound when fatal, I am of opinion there is great room for doubt that the wound had any thing to do in producing his death.

*Robert G. Cabell, M. D.,*mom.

I have heard the evidence of Doct. Bolton relating to the symptoms attending the illness, and to the post mortem examination of Childress. The circumstances were such as to make it impossible for me as a medical man, to say whether violence or natural causes produced his death. Childress was a man somewhat advanced in life, with a constitution infirm and shattered by a long course of intemperate habits, and he had undergone exposure, after the reception of the injury of which he is presumed to have died. There was in his case a *59tendency to dropsy, as manifested by the oedema of his legs, and it was also in proof, that his hands and arms were affected in the same manner. Now, oedema of the lower extremities often results from debility, and may be local in its character, being produced by the pressure of the superincumbent column of blood; but when dropsical effusions occur in the upper extremities, it indicates according to my observation, a decided and fixed dropsy affecting the whole constitution and is, in most cases, a fatal disease. In this case the dropsy existing in his legs and arms, might have extended to the brain and produced the effusion of serum which was found under the tunics and in the ventricles of the brain, giving rise to stupor and the other fatal symptoms detailed. In my opinion, the exhausted vital powers and dropsical state of the patient, while they might have aggravated the wound and prevented it from healing, were causes sufficient to produce death, even if no wound had been inflicted on the head. It is, therefore, impossible for my mind to be brought to the conclusion that the wound on the head and the inflammation resulting from it, necessarily produced death, or that it had any decided agency in causing the death of the patient. I cannot say that the wound did not cause death, it was possible for it to have done so, and the constitutional irritation of so large an abscess on the head, might have had an injurious effect, but I am impressed with the belief, that no decided opinion can be formed in the case, and that there must necessarily be a strong and an abiding doubt in relation to the matter. It is true that wounds of the head are generally regarded by the best medical authority as dangerous, although in my own practice, I have often seen wounds extending to the bones of the cranium and apparently of a formidable nature, pass off without the least danger to the patient’s life.

*James H. Conway, M. D.,*sworn.

I cannot say that Robert Childress died in consequence of the wound upon the scalp, because, as exhibited by post mortem examination, there was a want of correspondence between the condition of the pericra-nium and the dura mater. Had the disease extended from without inwards, instead of finding the dura mater adherent to the inner table of the cranium with its veins *universally*congested, I should have expected to have found it separated and most proba*60bly covered with pus or lymph, or at least to have found the greatest intensity of congestion at that point opposite the wound and radiating thence to the other portions of the membrane. I believe that the congestion of the dura mater was purely passive, and that it, together with the effusion of serum into the ventricles, beneath the arachnoid and into the cellular tissue of the extremities, resulted from the same cause, namely—great general debility and a depressed condition of the constitution—the consequences of excessive intemperance. I think that the bruised appearance of the bone was probably the result of the blow. I do not believe that congestion of the lungs ever existed, nor do I believe that the very slight bony deposit about the valves of the aorta, had any agency in the termination of the case, .inasmuch as the second sound of the heart was perfect. I do not mean to exclude the wound from the list of causes of disease in the patient, but I am inclined to the opinion that death was probably the result of his previous intemperate habits. I consider the danger of wounds of the scalp very much exaggerated, having never seen one terminate unfavorably.

*L. W. Chamberlayne, M.*D., sworn.

I think it certain that the blow was not the immediate cause of the death of Mr. Childress, that it may have indirectly aided in producing the death, I think probable. According to my experience in practice, a blow on the head, if fatal, will always cause death in less than five weeks; some perceptible effect on the brain will be observed in about fourteen hours after the blow. The medical witnesses who saw him, have testified to a dropsical state of the system, and this might react upon the brain; the extreme debility of the patient is farther proved and his debilitated state would very much tend to produce the symptoms found here. I think it extremely improbable that the blow was the immediate cause of the congestion found within the head. We know that in many cases a large quantity of fluid is, *by slow degrees,*poured out upon the brain, but from its gradual character, it has not destroyed life, while a small quantity, suddenly poured out, will produce death.

*Cross-examined by*Young.

There may have been an indirect connexion between the blow and the death; here is a man of intemperate habits, who receives a blow which was neglected for two or three days,—'this, with his habits, might have produced a *61state of debility which might have ended in congestion and effusion. By *direct cause,*I mean when a blow immediately produces a congestion of the blood vessels under it, the other vessels remaining unchanged.

*Carter P. Johnson, M. D.,*mom.

From the statements of Doctors Bolton, Snead and Parker, which I have heard, I consider it a matter of such extreme doubt whether the blow caused the death, that I could not hazard a positive opinion. There are too many links that seem to me to be wanting in the chain of connexion ; I suppose there is no doubt that the effusion on the brain caused the death, but what caused that effusion ? In general, in order that a man shall die from a blow on the head, the blow must result in one of two things—concussion or active inflammation—neither of these seems to have existed here. The separation of the pericranium from the skull does not, in my opinion, necessarily prove disease throughout it; the suppurating cavity might produce partial separation. There is proof of a congested state in the inner table, but I have frequently seen, in dissecting healthy skulls, considerable congestion and flow of blood within. At the place of the wound, the skull was not cut through by the gentlemen who dissected; and, thus, there is wanting the best proof that the external injury was transmitted through the skull bone. There is proof that the congestion of the dura mater was general and not merely at the place of the wound ; this state may have been produced by the position of the head just before death ; it may have been depressed so that the blood would flow down into it. These considerations, taken with the fact that the man was of very intemperate habits, throw so much doubt upon the question, that I cannot express a positive opinion.

Cross-examined.—It is matter of inference that the congestion inside resulted from the blow, but the proof would not be complete without cutting through the skull there. The wound may have had some influence in producing the death, but it is so doubtful that I cannot hazard an opinion upon it,

Re-examined.—From *my own*personal experience and practice in dissections, I cannot say that it is usual to find so much fluid in the head of a drunkard, but such cases are stated in medical works.

*62
      *By*Young.

I think when all the appearances and facts can be minutely known, the opinion of another physician is entitled to more weight than that of a physician who has attended the patient and afterwards made a post mortem examination. The attending physician is very apt to form an opinion or theory as to the case before death, to which the appearances after death insensibly adapt themselves.

*E. G. Clay, M. D.,*sworn.

I think it exceedingly doubtful whether the blow was the direct cause of the death. Taking into consideration his intemperate habits and his reduced state of health, I think there were sufficient causes, without the blow, to account for death ; the fact that the wound did not heal, seems to show the low state of his general system; according to my experience, wounds are more apt to produce debility in intemperate men than in healthy persons of sober habits.

Cross-examined.—I did not say that the wound would be apt to produce death in an intemperate man, but that it would tend to increase a previous state of debility; I have never seen death result from a mere injury to the scalp.

*F. W. Hancock, M. D.,*sworn.

My mind is in extreme doubt about the case. I think his broken down, decayed constitution, his intemperate habits, and dropsical tendency, sufficient to account for the effusion on the brain, without the blow.

Cross-examined.—It *may*have indirectly accelerated' death, by causing a suppurating surface which tended to increase debility.

*F, W. Roddey, M.*D., sworn.

Upon the facts detailed by Doctors Bolton, Snead and Parker, I cannot deduce the death from the blow. If the blow caused it, there would have been concussion or inflammatory action, neither of which existed. There was no internal inflammation, and all the appearances within the head might have existed without any connexion with the blow ; neither is there evidence that by “metastasis,” inflammation from without was transferred to vital organs within, thus causing death; his habits and previous health may have produced the congestion and the effusion upon the brain which seems to have been the immediate cause of the death.

Cross-examined.—I think that a blow received by a man like Childress, might operate by suppuration to increase debility and by accelerating the formation of Serum, might accelerate death.

*63(Doctors C. B. Gibson and Samuel Patteson, were also examined for the defence. I did not hear their testimony, but am informed by the counsel for the defence and the prosecution, that they both expressed great doubt whether (he blow was the cause of the death. The testimony of Doctors Dove, Cabell and Conway, was kindly furnished to me in writing, by those gentlemen respectively, upon my request that they would write out their evidence as delivered in Court. The other medical testimony was noted at the time it was given. R. R. H.)

*Doct. Bolton recalled by*Young.

I abstained *from*giving the reasons of my opinion in my previous evidence. After *the post mortem*examination, we all retired without a statement of the opinions of either of us. On coming together again, we gave our opinions, and found that we had come to the same conclusion. We had not learned that his habits were intemperate from the time of the blow to the death *-r*the wound got no better; under it was a suppurating cavity; under that a dark spot on the bone; inside these was great congestion in a circle so nearly defined that you could almost run a pen around it; next, there was congestion of the pia mater, and a large effusion on the brain; there was no evidence either during life, or derived from the *post mortem*appearances, that this effusion had existed any considerable time. There was no high inflammation, he was too much reduced for that; there was enough to show in my mind a connexion of congestion from the blow. In my opinion there was no necessity for a separation of the dura mater from the skull, congestion would be all I should expect. I think the com-gestion of the lungs was owing to pressure of fluid and disease of the arachnoid at the place where the eighth pair or nerves of the lungs are attached to the *medulla oblongata ;*then this congestion increased that of the brain by sending to it unhealthy blood ; they therefore acted and reacted upon each other.

*Doct, Gibson, recalled by*Scott.

My opinion of the case is not altered by Doct. Bolton’s statement; I do not understand that he states any new symptom or appearance observed by him before or after death.

*Doct. Dove, recalled by*Scott,

My opinion of the case remains unchanged.

*64
      *Bod. C. P. Johnson, recalled by*Scott.

My opinion is not changed.

( *Questioned by the*Court.)—I am inclined to think that the condition of the lungs and heart throws no light upon the cause of death in this case; I think the lungs had no organic disease ; their *function*only was affected by the state of the brain. I may illustrate by saying, the main spring of a watch moves all the wheels; if the main spring be broken the wheels will stop, but they are not therefore necessarily injured, or, in themselves, unsound.

Here the medical testimony closed, and the evidence for the prosecution was resumed.

*Samuel Pearce,*sworn.

I lived near Childress on Union Hill; I saw him the day before the night he died; his head was bound up; I did not take off the bandage; I saw wounds and bruises on his shoulders and other parts of his body; his legs were swollen; I was sent for to aid in washing him; he died that night.

Cross-examined.—I had seen him walking out on 18th street, and again on another occasion, going up the hill home, *some*week or two before his death. He died in the neighbourhood of Mr. Strecker’s, on the same square. I saw him near Kinnard’s ; he was walking with his stick in his hand and his head bound up.

*Richardson O. Gary,*sworn.

I heard of the “fray,” and was in Hastings’ store the day it happened; he said they had had a fray; I understood, from what he said, that he had beat him, and he said he was going to get rid of him, and if they didn’t go away, he would lay him up, or something like that. Mr. Hastings said he and Bob had had another fray and that Mrs, Chil-dress would have to move, I went for Dr. Bolton,

Cross-examined.—I am pretty sure Mr. Hastings said he had beat him ; he said he had seen him in the alley and asked him about some fuss Childress had been making, and that Childress said he didn’t halloo and commenced—(stopped.) I saw Chil-dress out two or three times after this—once on Cary street— once on Franklin ; he was walking with a stick; on Franklin street I saw him this side of the Market; this was after he moved to Union Hill; he said he was “ right poorlyI saw him on 14th street, before he moved; I think this was before I went for *65Dr. Bolton. Mr. Childress was a very drinking man ; had many sprees.

*Edwin*Dews, sworn.

I saw Mr. Childress two weeks before he died ; he was sick in bed complaining very much; at first he appeared to be in a stupor, but when roused he said he wanted me to take a memorandum of work done by him at Duesberry’s to collect it; he said he thought he should not get well; I asked, him what was the matter; he said he had received a very severe beating—

Here the counsel for the prisoner objected to the introduction of Childress declarations.

Day.

No proper foundation has been laid for them ; such declarations can only be received when the declarant is near death; is *in extremis.*I cite Hunter Hill’s ease as giving the Court the whole law on the subject.

Young.

The party need not be *in extremis ;*often such a rule would defeat the object of the law; it is sufficient if the party has no hope of recovery and makes the statement in view of death.—Roscoe’s Crim, Ev. dying dec. 33.

Scott.

Our Courts have always required that death shall be actually impending, at least, in the opinion of the declarant:— the expression “ in articulo mortis,” has been used as the rule.— III Rob. Prac. 279. Roscoe 31. Marg. 32. Beck’s Med. Jur. 926. Hunter Hill. II Grattan 607.

*The*Court.—The rale is clear ; its application may be difficult.

*(Mr. Dews,*questioned.)—Childress stated to me that he was very ill, he did not think he ever should get well; he appeared very pale and emaciated ; his head was tied up.

*The*Court.—The true rule is, that the party must be altogether without hope of recovery ; he must feel that he has done with earth—its passions and motives. It is not clear to me that Chil-dress was bereft of all hope of recovery, and at present I shall not permit his declaration to go to the Jury, but the application may be renewed by the Commonwealth’s Attorney, if a proper basis be laid.

*James Prosser,*sworn.

I saw Childress the Thursday week before he died ; I found him sitting in a rocking chair, labouring with shortness of breath, and twisting and winding in the chair; his eyes were set back in his head. I asked him if he knew me, *66he said yes, and called me by name. He asked if I ever saw any body in his situation ; I said, “no ! but don’t be alarmed, we will send for the Doctor.” We sent for Doct. Bolton. It was two or three days before Childress could lie down; I sat up with him every other night. One night he came to himself and we talked: he said he didn’t think he should ever get well; I continued to wait on him till he died.

*By the*Court.—At the time we talked, he seemed perfectly calm ; he talked some time as I sat on his bed side; he said he wouldn’t get well two or three times.

*Judge*Caskie.

I will take time, until to-morrow, to consider whether a sufficient foundation has been laid to admit the declarations of Childress. In the mean time, the case can go on.

*Prosser,*continued.

I shrouded him after his death; there were many bruises on his shoulders and back; there was one bad bruise as if his back was mashed in.

Scott.

Did you see him walking about ?

Witness.—Yes!

Scott.

*With his back mashed in 1*

Witness.—’Twasn’t his back, ’twas at his side.

Scott.

Stand aside!

Here the Commonwealth’s Attorney announced his case closed for the present.

For the defence:

*J>frs. Catharine Dowd,*sworn.

On the morning of the difficulty, as I was going after a bucket of water, Mr. Childress came in the yard and was cursing some one—calling him “ Damned son of a bitch,” “ damned rascal,” and such names. I got my bucket and whilst at the hydrant, Mrs. Childress came by and I spoke to her. As I came back, the door leading into the house was open, and I saw in the house Childress and Hastings in contact; Childress had Mr. Hastings by the collar, and Hastings appeared to be pulling away from him; I think the scuffling closed the door. Mrs. Childress passed in at the door. I saw Mr. Chil-dress that day at the window of his house ; two or three days afterwards, Mrs. Childress sent for me two or three times; my husband wouldn't let me go ; when he left the house I went to Mrs. Childress’ and she asked me if I saw Hastings strike Mr. Childress ; I said no ! just as I said so, Mr. Childress came from *67the next room and said, *“*Caroline, you saw it, that is enough.” She said, “ no, I was back.” *“*Back where ?” said he, “ Back in the yard,” said Mrs. Childress. I had no conversation with Mrs. Childress before she sent forme ; we use the same hydrant*

Cross-examined,—Mr. Childress was coining into the yard, cursing and swearing; I was going towards the hydrant, which is at the front corner *of my*house ; he went on to the house ; Mr. Hastings has a front way to come into his rooms ; I drew a bucket of water and returned, and when I was at the foot of my steps, I saw Childress and Hastings. Mr. Childress then had hold of Mr. Hastings’ collar, and Hastings seemed trying to get from him; they were then down upon the steps, lying side by side, scuffling; I saw no stick; Mr. Childress had what I call “ a good hold” on Mr. Hastings; I saw no more, fori went into my own house. Mrs. Childress came from the rear of my house ; I observed her going through the yard, but I did not see her when she went into her house; I saw a negro woman in the yard. If there had been much noise in the next house, I think I could have heard it. I could have heard a heavy boot or shoe. Three or four days afterwards, when Mrs. Childress sent for me, my husband didn’t want me to go, but I went, she asked, “Mrs. Dowd, did you see Sam Hastings strike Robert?” He came out of the back room ; the door was open ; he said, “ if she didn’t see it, Caroline, you did,” but she said she didn’t see it, she was out back of the yard. It has been my grief and sorrow that I did not go on and so not see what I did see. Yes, sir, my husband was in jail a short time after this; he got into a little drunken frolic, and we had a little “ fray,” and I had him put in jail. Mr. Hastings, I think, was in jail about the same time.

Re-examined.—I have lived in Lynchburg, in Buchanan, and at Rocky Point; I am not a tenant of Mr. Hastings’.

*Rev. Daniel Downey,*sworn.

I have been acquainted with Mrs. Dowd since 1842; I know a relation of hers in Amherst county. Mrs. Dowd’s character for honesty and veracity was always good; I would not hesitate to believe her on oath. She always stood well in Lynchburg, Fincastle and Buchanan.

Cross-examined.—I was Catholic pastor in that region from 1842, to 1845. I married her to Mr. Dowd in 1842, in Amherst; they then came to Lynchburg ; I went to Staunton and was pas*68tor of that mission and of the mission extending to Fincastle and Buchanan, I have heard sometimes that Mr. Dowd was not so sober as he might be, but that Mrs. Dowd was a truly valuable, good woman; I never heard his veracity called in question.

*James Dowd,*sworn.

I was living in a house belonging to Mr. Hastings ; I knew Robert Childress; after the affray, I saw him once before he moved ; I heard Childress cursing and swearing ; I thought he must be drunk ; (as I am sometimes ;) I heard him call somebody a “ damned Irish son of a bitch;” afterwards I saw him and Hastings together; they had a scuffle; I saw no blows and no stick. I saw Mrs. Childress go in, but I could not see her as she went in the house. She sent for Mrs. Dowd ; when the girl came, I said, “ if Mrs. Childress has more business with you than you with her, she can come and see you.” I then went down street. I saw Mr. Childress the day they moved ; he was helping to move ; I saw him helping to bring a bureau down, he and a negro man brought it down; I went and helped to put it in the wagon, remarking that I was a little stronger than he was. I do not think I noticed that his head was tied up; he helped to move the Monday after the affray; I did not hear him complain of suffering ; I saw him once afterwards on Cary street, between 13th and 14th streets.

Cross-examined.—I was standing at the window; I was drawn to the window by the sound of the cursing ; I saw my wife in the yard ; I saw no blows passed ; they were inside the door and seemed to be scuffling and to have hold of each other; the door closed and I did not see any thing more ; when Mrs. Childress came, she opened the door, but sideways, and I could not see any thing; all I heard said was Hastings, I think say, “ Bob ! go up to your room.” Í helped Mr. Childress with the bureau, because I thought I was the strongest; some days I work and some days I don’t, I work when I feel like it.

*By a*Juror.—The door is not on a level with the yard ; a small flight of steps leads up outside from the yard; then comes the door, then there is a little landing and another flight of steps inside. Mr. Hastings can come out of his rooms, on the landing inside the door; the space is narrow where they met, not more than three or four feet wide.

*Mrs. Susan Brown,*sworn.

I was not at Mrs. Childress’ ’till *69the Monday after the affair; she had been over to ask me to take the rooms off her hands, and I went over to see her about that and to ask about what she had said about me. When I saw her, she was crying mightily, she had a cupboard at the top of the stairs ; she asked me to take the rooms; she said she *knew*I wanted them ; I told her I didn’t know about it; I helped her some ; she said she had seen “ a scrummage” between Mr. Hastings and Mr. Childress, and that she saw blood on Mr. Childress, but she did not say she saw Mr. Hastings strike him. I saw Mr. Childress move a barrel and when he went away he carried a looking-glass.

Cross-examined.—I live just across the street. I don’t think I ought to state here, before all these gentlemen, what I heard she had said about me. (Pressed)—I heard she had said that if Mr. Hastings wanted the rooms *for himself and me,*he could get them without beating Bob to death.

*By*Scott

The persons who informed me, were Mrs. Dowd and Mrs. Hastings, (mother of the accused.) Mrs. Childress said *she knew*I would rent the rooms as soon as she moved out.

*Mrs. Owens,*sworn.

I saw Mr. Childress a short time before they moved ; he was across the street with a stick ; I have heard his wife say, that if she were in Mr. Hastings’ place, she wouldn’t stand Bob; she would pitch him down the steps.

*Miss Via,*sworn.

I live at Mr. W. C. Drew’s. Last fall I saw Mr. Childress ; he came from Mayo’s bridge ; he appeared very drunk; he sat down on Mr. Drew’s cellar; his hat fell off, and he fell after it, head foremost, down the cellar; when I saw him he was lying with his feet on the steps and his head down on the floor I think this was about four or five weeks before I was examined in the Mayor’s Court, (which was in November.)

Cross-examined.—’Twas about three or four weeks before I heard of the death of Mr. Childress. I am not acquainted with Mr. Hastings, and knew very little of Mr. Childress. It was a double cellar door, opening in the middle; it was open. He caught at his hat and fell backwards; I peeped down and saw him as I have said; I was scared ; I said, “ Oh ! my Lord Í” Some one said, “ what’s the matter.” I said, “ a drunken man has fallen down the cellar and, I expect, killed himself; its Mr. Childress.” I don’t know who spoke to me; I had Mr. Drew’s baby in my *70arms ; there were a good many people, white and black, in the store ; I don’t know how it turned *out. I had seen*Mr. Chil-dress perhaps four or five or six times, but I never had spoken to him. As I turned to *go*in, says some one, “ who is it;” I said, “ ’tis Bob Childress.” I first heard at Mrs. Blankenship’s that Mr. Hastings had beaten Mr. Childress.

*Mrs. N. M. W. Smoot,*sworn.

I saw Mr. Childress on the 15th of October, walking on 18th street; Mrs. Ambrose was with me.

*Mrs. Sarah Ambrose,*sworn,

I saw Mr. Childress on the *15th*of October, as Mrs. Smoot has stated.

*W. C. Drew,*sworn.

There is a cellar under my store, 9 feet deep when the door is erect. I saw Mr. Childress at the Hustings Court the 9th of October. He was walking among the crowd, he looked pale ; I had business there.

*(By a*Juror.)—Miss Via did not mention Mr. Childress’falling into the cellar to me ; I think I was at Chesterfield Court, I don’t recollect the date ; I did not hear of the falling into the cellar, until this affair between Hastings and Childress began to be talked about.

*George Little,*sworn.

I saw Mr. Childress on the 7th of October, he was moving some furniture down from his house; he was carrying down cooking utensils, I think; I had seen him the Wednesday before walking across the street. I am not positive as to this last time, but ’twas two or three days before the 7th ; I recollect the 7th, because Mr. Hastings went to Powhatan Court; I had some transactions with him on the 7th, and he left a receipt written for Mrs. Childress, for me to give to her; I think she paid me $>2, which was for part of a month.

*T- P. August,*sworn.

I cannot say that I knew Robert Chil-dress ; I only remember to have seen him once, and then I only knew it was he from what he himself said; on that occasion I do not remember that he called his name, or that I asked it.

Cross-examined.—As to the man who was in my office, if fifteen minutes afterwards any one had asked his name, I could not have told it.

*William D. Fuqua,*sworn.

I knew Mr. Childress ; I saw him at Mr. Blankenship’s a short time after this circumstance happened ; I saw the wound ; it looked very dry ; it had a little ban*71dage, but no lint; I don’t think I saw him afterwards. At Mr. Blankenship’s I think I saw Childress take a drink; he asked for it; Mr. Blankenship gave it to him ; he took the bandage off his head and shewed us the wound. The platform inside the first door where Mr. Childress lived, is very small ; the steps leading up stairs, occupy the whole width of the platform ; two doors open on it, one from without and one from Mr. Hastings’ room.

Cross-examined.—It was directly after the affair that I saw him; his appearance was pretty much as usual, except that there was a bruise on his eye and this cut on his head.

*Cornelius Cormell,*sworn,

I knew Bob Childress; he was an old acquaintance of mine. On the 10th of October, I was coming from Fairfield race course, I met him going towards the course, he was then about 300 yards from it. The main race was that day ; a crowd of people was still there ; he was walking directly towards the course.

Cross-examined—His face was “ sort of black I didn’t see any thing on his head. He did not complain of any pain in the head; I did not think he was going to die—a man who looked as likely as he did !

*Robert Childress,*sworn,

He was my uncle; I saw him about two weeks before his death; he was at my father’s; he took some cider; I think I saw him twice—two days in succession— he only drank once, that was the last time; my father resides about a quarter of a mile from the place where my uncle lived ; ’twas about 12 o’clock when I found him there.

Cross-examined.—He took one glass of cider; I saw him drink nothing else.

*William Larmand,*sworn.

I knew Childress ; about two weeks before his death I saw him at my grocery, about 200 yards from where he lived ; he came twice in one week ; this was during the races. He came and bought some mackerel; I never saw him afterwards, until I was called to help to put him on the bed Monday evening; he died Monday night.

Cross-examined.—I did not notice any bruises whatever; I did not notice the bandage; it might or might not have been there; I observed his eyes were swollen ; I don’t much like to handle such people and didn’t examine him particularly.

*James W. Gaines,*sworn.

I saw Robert Childress after he mo*72ved on Union Hill. I was reading, I heard some one talking to my wife, 1 looked out of the front window and ’twas Mr. Chil-dress. I think it was Sunday, because ’twas very seldom I staid at home except Sunday, and hardly then. I lived, at that time, over Peake, Bradley & Co.’s, on Main street; Mr. Childress was on the pavement; I remarked he had his head tied up, but I didn’t then know he had been hurt.

*Jesse Franklin, sworn.*(Day.)

I saw Bob Childress *Sunday,*but what day or month I don’t know ; I don’t know where he was living; I don’t even know that I can say what year it was ; I wont say particularly it *was*last year; I live just out of the city and work in the city; I never paid any attention to it.

*(By*Scott.)

I never visited old Bob Childress *;*I don’t know where he died ; I didn’t go to his funeral; I’ve done.

*Scott.*

*And Fve done with you.*

*James Allen,*sworn.

About the time this affair happened, a man who was represented to be Mr. Childress—

*(Young*objected that the witness did not know him to be Childress.

*The Court*said if Mr. Allen had learned from general report that this was Childress, he might go on.)

—Was lying on the corner, near our warehouse. I called officer T. B. White, who came and lifted him up and told him to go home; he could not stand, he was so drunk; Mr. White called a wagon and carried him to the watch-house; this was, I think a short time before this affair.

For the defence r

*Doct. Bolton,*recalled.

After the first time I saw him, I do not think I had any conversation with him as to the person who had inflicted these injuries ; I did take his wife aside on the *Thursday*he was so ill, and tell her I thought he would die ; I thought it not prudent to communicate this to himself; I do not recollect the least remark *from Mm*as to whether he would die or recover, he appeared in low spirits; not disposed to converse. He had been a stranger to me before his injury; I think I always found him at home when I called; I generally called in the morning.

For the prosecution, rebutting testimony was offered.

*Mrs. Blankenship,*sworn.

The day Miss Via was at my house she said she did not know Mr. Childress, and didn’t know that *73she had ever seen him; it was after this affair; she said not a word about his falling into Mr. Drew’s cellar, f recollect, in the latter part of April or first of May, Mr. Childress fell into Mr. Drew’s cellar; I was near the door and saw him come out of the cellar. My sister and mother were present when Miss Via was at my house.

Cross-examined.—After he came out of the cellar, I did not see that he was hurt; he picked up his hat and went round Mr, Drew’s corner; Mrs. Childress is my aunt; he drank a great deal more than he ought to have done; I expect he was disagreeable to his family. 1 saw him after he was hurt, he was in our store; he asked for a drink and I gave him one.

*Mrs. Pointer,*sworn.

I waited on Mr. Childress during his last illness; I cannot tell exactly when I went there. He told me several times he knew he should die,—he knew he could not live under his sufferings.

*(By the*Court.)—I was sent for *the Thursday*Doet. Bolton was called in. He made these statements several times.

For the defence :

*F. A. Blankenship,*sworn.

Robert Childress was a very intemperate man ; pretty generally so ; when drunk he was remarkably quarrelsome, I have been obliged to chastise him myself) I could not stand him; his habits brought on fits about eight years ago; I have stood over him and seen him have half a dozen fits in succession.

Cross-examined.—I don’t know that he has had any fits in less than eight years. When perfectly sober, he was one among the most peaceable men I knew. I don’t say he got drunk every day, but I have oftener seen him drunk than sober.

*(By a*Juror.)—He was a hatter by trade; an industrious working man when sober.

FaiDAT, May 2nd, 1851.

*Judge*Caskie.

I have reflected upon the propriety of admitting to the Jury the declarations of Childress. Evidence has been given that after Thursday, when Doct. Bolton was suddenly called, he *repeatedly*declared his belief that he would die. He seems to me to have had no hope of life. I think a sufficient foundation has been laid.

*74
      *James Prosser,*recalled.

After he said to me he was convinced he would not recover, I think he said, Mr. Hastings had beaten him on the head.

*Mrs. Pointer,*recalled.

After the Thursday, Mr. Childress said to me, that he was convinced he would not recover; that Mr. Hastings had beaten him over the head so, that he could not recover

*Byrd Page,*sworn.

I knew Childress ; he was lame ; had had ais thigh broken; he was a man about my size ; I should not suppose him a man of strength; he was given to drink, but when sober, very quiet. I have known Mrs. Childress some 17 or 18 years; she is a very industrious lady; I never heard her speak against him.

*Cross-examined*—Childress was often in the hands of the police ; generally, when I saw him, he was too drunk to make much noise.

*James H. Poindexter,*sworn.

I know Mrs. Caroline Childress : she has worked for our firm ten or twelve years; as far as I know her character, ’tis good ; I never heard it called in question ; I never had occasion to question her veracity; I would believe her on oath.

*Samuel Pearce,*recalled.

I am well acquainted with Mrs. Chil-dress ; have known her almost as long as I have known myself; her character is very good : I would believe her on oath.

*R. D. Mitchell,*sworn.

I have known Mrs. Childress for fourteen years; her character is good ; I would believe her on oath as soon as I would believe any body.

The evidence closed, and at about 10 minutes past 11, A. M., the argument before the Jury commenced.

Young.—Cited McWhirt & Ferguson’s case, III Grattan 654. Hunter Hill, II Grattan. In Virginia, when a homicide is committed, the law presumes it to be murder in the *second*degree, and it is for the Commonwealth, by evidence, to elevate it into murder of the first degree, or for the accused, by evidence, to lower it to manslaughter, voluntary or involuntary, or to shew it to have been excusable or justifiable homicide.—Roscoe’s Criro. Ev. 702-706. You must believe that the blow was the cause of the death, but if it *accelerated*it or produced it *only*because of the debilitated condition and habits of the deceased, still it will *75be murder or manslaughter.—Guy’s Forensic Medicine 469.

*Bay*spoke from about half past 12 to7 o’clock in the evening, with an intermission of an hour. He argued very fully every point that could arise upon the law or the evidence. He cited Guy’s Foren. Medicine 461. Taylor’s Med. Jurisp. 302, 306, 413, 408, 409. Beck’s Med. Jurisp., Last Edit. 302, 371, 315. Kennaway’s case in Beck 302, was much relied upon. In this case, a woman intoxicated and violent, died after receiving from her husband, (an industrious man, returning home from his work,) two blows that did not seem calculated to produce death. On *post mortem*examination, an artery in her head was found ruptured. Sir Charles Bell “ being asked whether the blows were the cause of the rupture, said he conceived it very likely that a shock would rupture the vessel, and being then asked, whether he conceived that this woman was more likely to have a vessel ruptured from having been intoxicated, he was of opinion that intoxication and the struggle, were likely to produce such a degree of activity of the circulation in the head, that a less violent blow might produce rupture, than what in other circumstances might have proved fatal.”—Kennaway was acquitted.

Saturday, May 3rd, 1851.

*Scott,*for the defence, spoke from 9 ’till half past 12 o’clock.

*Young*closed at 2, P. M. The Jury retired, and in about half an hour, returned with a verdict of “Not Guilty.”

The accused was discharged.