Henry Burgess, constable of Witheridge, being sworn, deposed as follows: – The prisoner was put into my custody on Sunday 13th July as he was sitting by the fire-side crying very much, I said to him, “My man, I am afraid this is a very bad job, you seem to think a good deal of it.” I asked if he hurted the woman, and he said he was with her. I observed, “I think you are guilty of what you are here for, “ – and he threw abroad his hands, exclaiming, “Oh! I never thought of it till the very moment I did it- I was very drunk, or I should not have done it.”
Mr. Thomas Cross, surgeon, of Thorverton, examined the body of the deceased, and was of the opinion that she died from drowning. There was a slight discharged of blood from the nostril, and a small mark near the right ear; she was about six weeks or two months gone with child.
Mr. Fraser (the prisoner’s counsel) here entered upon an ingenious cross-examination, with a view to ascertain from natural causes whether it was not probable that the deceased met her death, or some blow tending to it, before she was immersed in the water. The witness said that mark near the ear might have proceeded from a stunning blow, but repeated his opinion that she died of suffocation or drowning.
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John Down, a little boy aged 16, said he found the basket [here produced] in the linhay in Smith’s Ham, and that it was Sarah Down’s. Mary Down, being desired to look at the basket and jug, identified them as her sister’s.
Mr. Fraser here submitted two objections to the indictment – one that the deceased might not have met her death by drowning along, as it did not appear in evidence that drowning was the sole cause; the other objection was respecting the venue, the indictment not stating that the deceased “then and there” met her death.
Mr. Justice Best said he would consult Mr. Justice Burrough on the two points, and accordingly left the Court for that purpose. In about ten minutes his Lordship returned and said “Mr Fraser, I have had an opportunity of consulting my learned Brother, and he is of opinion there is no foundation for either of the objections.”
The case for the prosecution being closed, the prisoner was asked for his defence, and replied, in firm voice, “I leave it to my Counsel, Sir”. – The Judge having summed up, the Jury turned round to consider their verdict, and in two minutes returned a verdict of Guilty.
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