Star.
London, England, 1818-02-07 00:00:00

LAW INTELLIGENCE.

COURT OF KING'S BENCH, FEBRUARY 6.
WILLIAM AsHroaD O. ABRAHAM THORNTON.
APPEAL OF MURDER.

(IN CONTINUATION FROM FHB STAR OF YSSTERDAY.)
Mr. CIIITTF, as Counsel for the Appellant pro-
ceeded....-The authority which I shall now cite to
your Lordships is Bracion, lib. 3, cap. 18, plat. 136.
This work was written in the reign of Henry 111.
and the title of the chapter, among other things,
contains, " How the prisoner should be brought into
the presence of the Justices, and whether the Justices
ought to make examination on Wager of Battle or
Trial r and fol. 187, after stating how the party is to
be taken, the following is laid- down;—" When a
person thus taken is to be brought before the Justices,
he is not to be biought up with his hands bound,
though his legs may be fettered to prevent his es-
cape ; and if, when brought up, and accused, he con-
fess the crime, the judgment is manifest; but if he
deay and defend the imputed crime, any person ap-
peals him in lawful words of appeal, he shall have
his election, whether he will pits himself on trial, or
defend himself by his body." It then goes on to
state, my Lord, that it is the duty of the Judges to.
see that there is all proper care and caution in the
waging of battle, even though the appellee should
have neglected to do so for himself ; and to take care
that there be no variance in the evidence ; for in-
stance, that the ,appellant say one thing before the
Coroner, and another before the Judges ; but when
he is permitted to defend his plea by his body, it is
" unless some violent presumption make against him,
which does not admit of a proof to the contrary, by
means of which he can deny or defend the death, or
felony. As it may be, where a man is taken over the
dead body with a boody knife ; her it would not be
in his power to clear himself. . _ _

LorClELLENsonoucw—How can that be ? If a man
were found with the knife in his hand over a body
recently dead : if the fact were so, might he not prove
that somebody put the knife into his hand, and com-
manded him to stand there, and that he was dbliged
to do so ?

Mr. Cntvry.—But by the old law, my Lord, he
would be hanged upon the proof of that fact.
Mr. Justice Annovr.—Suppose a person found a
man dying, with a dagger in his boily, and he took
it out with a humane motive to save his life, and that
while he was standing over the body the man died,
and he was found in that position, surely he might
prove his innocence.
Mr. Career.--My Lord, this is certainly altered
by Stamford.
Mr. Justice Bsvmcv.--He would be bound to ex-
plain how he came in that situation ; but I apple
-
bend be could not give that explanation by way of
replication to a counter-plea, but he must do it upon
AisAl -•-• •
Mr. CHITTY then made the hallowing citations il-
lustrative of the positions he had taken Likewise
if a person'shall enter any house at night, and he might
have been murdered, or if there hadbmn two or mere
there, and they might not have raised a hue and cry,
nor received a word from the robbers or others who
committed the murder in endeavouring to defend
themselves, be shall be allowed to deny the death."
The Learned Counsel then proceeded to read ex-
tracts from Fleta up to the time of Edward I. and 11.
cap. 1, p. 47, in which it was set forth, ‘, when such
person shall have been taken, he shall not be brought
in armour, and if there be any cause for the defence,
it shall be in the power of the defendant to put him-
self upon trial and defend himself by his body, un-
less there shall be some violent presumption against
him, which does not admit proot to the contrary."
Lord ELLEKBOROUGIL•DOeS it not mention any
instance where proof was shewn to the contrary ?
Mr. CHITTY.—Yes, there are instances, my Lord.

Mr. Justice BAYLEY.—Then these, in fut., are co-
pies of Bracton ?
Mr. CHITTY then went on in support of his argu-
ments to Briton, cap. 22, in which it was set forth,
that many things might destroy the right of battle in
every Barony, " for if the appellant be mayhem, or
be within the age of 14, or beyond the age of 70, or
ordained in holy orders, or a woman, or a man
can aid himself by matter of record, then he shall
say, • and this I am ready to prove, in any way the
Court shall award,' he or she shall not wage battle."
Horn's Mirror, page 158, was then cited, and it set
forth—" and in case where battle could not be join-
ed, and there was no witness, the people in personal
action used to help themselves by a miracle of GOD
in this way."—lf the defendant were a woman, or of
'such a condition that she could not join battle, and
the plaintiff had no witnes to prove his suit, then
the defendant might clear her credit by the miracle
of GoD, or leave the proof to the plaintiff, and in the
contrary case, the proof only belonged to the plain-
tiff'; and there are divers causes to oust the defendant
in an appeal of battle ; for it is said, that if an infant
in age bringeth an appeal, and the defendant shew-
eth that he is within age, and—
Lord ELLENBOROUGH.--DOeS it not state what age?
Mr. CHITTY—No, my Lord ; but it goes on to say,
" That the Justices are of opinion that he should be
brought to answer the appeal of the appellant, and
that the defendant hath lost the advantage to wage
battle ; and if a party be indicted for a felony or mar-
der, he shall not wage battle."
Lord Ettsaisoaomu,—llave you the original lan-
guage?
Mr. CHITTY.—.-NO, my Lord, I have not.
The next authority to which the Learned Counsel,
referred, was Strainsforth's Pleas of the Crown, pub-
lished in the year 1567, which, in 3d b, c. 13, set
forth, " Trial by battle is another trial, which the de-
fendant, in an appeal of felony, may elect—that is,
to tight with the appellant, if he choose."
Mr. CHITTY observed, that this was when there
was nothing to support the counter-plea of the other
party ; for, in the. same author, page 178, it was
stated :•••••••" The reason why a man has right of ap-
peal is thls—Ahat there is no evident or probable mat-

ter appearing against hini•to proTe him guilty
that
thatl
felony, but only bare accusation of the plaintiff or
pl tintiffs, who are not credible witnesses in their
own cause." In the same work it was stated,
if there be any thing that can serve the plaintiff's
presumption, that the testimony and cause he true,
he shall oust the defendant of his trial by battle."—
Confirmatory of which, observed the Learned Coun-
sel, Blackstone said in his second Book, That some-
times presumptions are so strong as not to admit a
proof of the contrary."
The Learned Counsel, in support of his a ents,
cited a variety of quotations from several= au-
thorities, down to the time when the waging of battle
ceased to be practised. He then, as we stated, went
over the principal points contained in the counter-
plea, and contended, that from the print of feet, cor-
responding with those of the Appellee and the de-
ceased, in the harrowed field, it was to be inferred
, that he pursued her. From other marks it was to be
supposed that. he had overtaken her—and after hav-
ing effected his purpose, had taken her in his arms
and thrown her into the pit—for, within several yards
of the pit, the print of the feet of only one person was
observable,--and blood appeared on the new clover.
Mr. Justice BAYLEY...." Yon have stated nothing
in the counter-plea from which it is to be inferred
that the deceased was thrown into the pit. Nothing
appears to shew, that she did not throw herself in, or
that she did not tumble in. With respect to the blood,
it was not stated whether it was on the clover while
the dew was pn the ground. You have nut positively
alleged that it displaced the dew."
Mr. CHITTY submitted, that in a counterplea they
were not bound to attend to those technicalities which
were necessary in an indictment. He was proceed-
ing to comment on the circumstances stated in the
counterplea, when
Mr. Justice B.k.YLEY said—" You omit a materiil
fact. The parties left a house together at twelve
o'clock at night, and about three in the morning,
were seen at a stile, near Bell-lane, in the direction of
the harrowed field."

Mr. Cmirtv then proceeded to remark on the cir-
cumstance of the print of a shoe for the left foot being
observable on the sidle of the pit—the Appellee being
in the habit of wearing shoes made for the right and
left foot. He then argued that the fact of the priso.
ner having blood on his clothes when taken, and his
admissiqn that he had criminal intercourse with the
deceased, afforded nd for a presumption of guilt.
As strong a grounctlre said, as was acted on, in the
cases he had stated, when wager of battle was refused.
It now remained for him to spew, that the replica-
tion of the Appellee could not be admitted. No case
was found on the books where fresh facts were suf.
feted to be introduced for the purpose of proving in-
nocence, after trial had. It was only allowed to an-
swer the facts on which the presumption of guilt was
founded. The replication clearly admitted the cir-
cumstances on which the presumption of guilt was
founded. All the Appellee further said way that
these facts bore out his assertion of his innocence,
more than they did ours of his guilt. He then stated
some circumstances, from which he wished it to be
inferred that he could prove an alibis-and finally in-
sisted, that his acquittal had completely discharged
him from all suspicion. Now, admitting that all
the facts stated, relative to the alibi, were perfectly
they eo on be brought forward as a de-
fence on his trial. The counter-plea established a
primafocie case, which ought to got° a Jury, before
whom the circumstances connected with an
might be stated with propriety. We have established
a case of strong suspicion, and that is all, that is ne.
cessary to avoid the trial by battle.
Lord ELLEssonouon.—Do you contend that the
mere suspicion is sufficient?

Mr. Churn.-1 do, my Lord.
Lord ELLIENBOROUGH—You have fallen very much
from your former high position, that it ought only to
be refused in cases that did not aemit of proof to the
contrary.
Mr. CHITTY said, he was only bound to maintain
that the facts stated in the counterplea afforded strong
presumption of guilt.' He begged now to submit,
that the very allegation of the appellee, that he was
prepared to prove an alibi, by many witnesses,. was
sufficient to chew, that in this case trial by battle
ought not to be admitted. If he had such witnesses,
he should trust to a Jury, and not call for the adop.
tion of a mode of trial that ought to be reprobated by
every one. With respect to the effect of the aequata,
the Act of Henry VII. gave to the Appellant the like
advantages as if an acquittal had not taken place.—.
—The Act said, that the acquittal should not aka
' the Appellant in any way whatever. And they had
seen that the Courts, as in the case of Slaughterford,
had admitted appeal, after a verdict of acquittal had
been found. In Carstairs and Bailey, 2d Strange, p.
853—in Wilson and Kennedy—a second trial was
also granted. The Learned Gentleman then proceed.
ed to remark on the account which the Appellee
gave, in his replication, of the different hours at
which, and the different places, in which he had
been seen, from 25 minutes before five on the morn-
ing of the 27th of 'May, down to half-past five—.
and contended, that it was by no means satisfac.
tory, when all the circumstances were considered.--
In conclusion, the Learned Gentleman submitted,
that the statement contained in the replication was
not sufficient to entitle the Appellee to wage battle,
and, therefore, he prayed the Court to set the plea
aside, and to grant a new trial.
Lord ELLaseostouoir, after consulting with the
other Judges, intimated that the Court would hear
Mr. Tiriom.L, in support of the replication, the first
thing to-morrow (this) morning.
Thornton, on retiring from the Court, was assailed
by the groans and hisses of a great multitude, whom
the proceedings had collected together.

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