R v PATRICK McNICHOLL [Cr. Ca. R]

• Jurisdiction: Ireland
• Judgment Date: 31 July 1917
• Date: 31 July 1917
• Court: Criminal Cases Reserved (Ireland)

Rex

and

Patrick McNicholl (1).

Cr. Ca. R.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1917.

Criminal law — Evidence — Marder — Confession — Corpus delicti — Dead body not found — Onus of proof.

On a trial for the murder of the infant illegitimate daughter of the accused, evidence was given that he had directly confessed to the actual commission of the crime, but the dead body of the infant had not been found. The jury found the prisoner guilty.

Held, that the judge (Gibson J.) had rightly refused to withdraw the case from the jury, that there was evidence upon which the prisoner could rightly be convicted, and that the conviction should be affirmed.

In a charge of murder, by proof of the corpus delicti is meant proof of the factum of murder, and that the accused committed the murder or took part in its commission. Such proof may be established by the confession of the accused without proof of the finding of the dead body.

The dictum of Sir Matthew Hale (Pleas of the Crown, 1778 ed., vol. ii, p. 290), that he “would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body found dead,” is not an inflexible legal maxim, but is a wise and necessary caution to be addressed by the presiding judge to the jury.

Dictum of Palles C.B. in Queen v. Sullivan (20 L. R. Ir., at p. 570), that the case of murder is an exception to the general rule of the common law, and that the confession of the accused is insufficient of itself to prove that the fact was done, unless there is proof of the finding of the dead body, dissented from.

Case Reserved pursuant to the statute in that behalf for the determination of the Court for Crown Cases Reserved by the Right Hon. Mr. Justice Gibson, at the Summer Assizes, 1917, for the County Londonderry.

The case set out as follows:—

This trial for the murder of Elizabeth McNicholl, the accused's illegitimate infant daughter, on April 27th, 1917, took place at the Londonderry Assizes, held on July 18th and 19th, 1917. Mr. Wylie K.C. and Mr. T. Henry Maxwell represented the Crown. Mr. Henry K.C. appeared for the accused. He called no evidence, and at the close of the Crown case required me to direct an acquittal.

Besides the oral evidence there were letters from the prisoner to Matilda (Tillie) Burke and Mrs. Irwin, Tillie Burke's sister. The three first were directed to Drumcovitt, where Tillie and her baby were staying with Mrs. Irwin; the next two were sent to her at her mother's house, Oaks, between Claudy and Derry; and the last letter (the sixth) was written after the confession made on May 25th. The letters to her and Mrs. Irwin are set out in the Appendix.

The material dates are as follows:—Tillie Burke was employed as servant by defendant in 1915. Being enceinte by him, she left in May, 1916, to stay with her sister, Mrs. Curley, at Skeogh, Co. Donegal. Her child, Elizabeth McNicholl, was born on 28th November, 1916. She, with her baby, came to her sister Mrs. Irwin's house at Drumcovitt, March 20th, 1917. The child was vaccinated by Dr. Thompson, and registered in the name of Patrick McNicholl about a fortnight later. The child was taken by the prisoner on April 27th. Tillie Burke moved to her mother's house at the Oaks, near Claudy, on Tuesday, May 1st. Went into service at Culmore, on the Lough, some time after. Came home to the Oaks, her mother's house, by arrangement to meet defendant, who at the interview on May 25th said he had smothered the baby in the lane. Five letters were handed by Mrs. Irwin to the police on May 29th. The last letter to Tillie Burke handed to the police on June 2nd. Arrest of prisoner on June 2nd at his own place, Coolnaculpagh.

Mr. Wylie K.C. states:—

Matilda Burke examined.—Hired by prisoner early in 1915. Left in May, 1916. He seduced me. When I left I was bearing a child of which he was the father. I went to Skeogh, Co. Donegal. On 28th November, 1916, child born and baptized there, under name Elizabeth McNicholl. He knew that. He sent letters and money. Before Easter I came to my sister, Mrs. Irwin, to Drumcovitt. It was Claudy fair day, March 20th. I brought baby with me. On the second night after I came he visited me. I wrote to him I was coming. I had conversation with him. He spoke of our getting married, Easter Sunday, at Banagher, a mile beyond Feeny. A few days after I got a letter from defendant (No. 1). Identifies it. I answered it. Don't recollect what I wrote. I think he wrote then, but he came a few days after. I said I wasn't willing to give up the baby. He said I would never see it again; he would take it away. I agreed he should take it away. He said Mrs. Donaghy, on Garvagh Road, three miles below Dungiven, a cousin, with one child and cows, was to take it; she would be fond of baby. Letter 2 received. Identified. Later I saw him at Drumcovitt. Moses Irwin, brother-in-law, was labourer, working for Mr. Craig living at Drumcovitt House. The lane from Irwin's runs past back entrance of Drumcovitt House to the road. Moses Irwin had three children, eldest aged seven or eight; youngest, six or seven months. I met him in the lane after letter 2. There was a quarrel about baby, which he said I would not see again. I said I wanted to see it when I liked. He said I could not, Mrs. Donaghy would be claiming it as her own. Letter 3 received and identified. He came a few days after and arranged to take away the child on Friday night between nine and ten; Mrs. Donaghy would have a motor. He said he would bring the child by the lane to the road where the motor would stay. On Friday he came at 10.30 p.m. Irwin and my sister were in bed and my baby in cradle. There is a kitchen and one room. Irwin and his wife with three children were in the kitchen. My mother and I were in the room and baby. Mother and I were up. Mother let him in. He said he was late, waiting for the trap; it wasn't a motor Mrs. Donaghy had, it was a trap; she was in it and the little boy driving it. Annie got up and dressed baby. It was fed with bottle. It was wrapped in the cradle blankets to keep it warm and my big yellow coat over it. The night was dry and cold, not freezing. I took it to the lane outside the house and gave it to Patrick. He said he did not wish for me to go down the lane; didn't wish Mrs. Donaghy to know. When I gave it into his arms he told me to kiss baby. I returned to the house. He went away, Moses was going as I came. McNicholl was out about twenty minutes. Moses was back about ten minutes after Patrick returned. McNicholl brought back the coat. He was to bring it back, and he gave it to my sister. He said Mrs. Donaghy was kissing the baby when he gave it to her on the road. He stayed till after twelve o'clock. He had tea just after he came back. I went into the lane outside the gate; walked up and down with him. At seven o'clock next morning I went down the lane to the road where the lane joined. Looked for tracks. Saw none of motor or car. I found the ribbon produced at the gate below Sister's house. It is like that on my child's bootee. On Monday (this was April 30) he came at 8.30 p.m. I met him outside. My sister wrote to him (see her evidence below as to this letter). I was watching for him. I asked where was baby? I was discontent (sic) about it. He said there was no cause to fret; the baby was happy with Mrs. Donaghy; he was paying 30s. a month; it was very cross with Mrs. Donaghy. The child was wearing a check dress, no coat. On Tuesday I left for Oaks, on the Derry side of Claudy. I wrote from there two or three times. I got an answer to my last (letter 4 so received identified). He said he would bring me in three weeks to see baby—that is three weeks from April 27. I wrote asking him to take me to see baby. Letter 5, I received it (identified and entered). I wrote to Mrs. McColgan named in this letter. It was returned through the post three or four days later. I wrote to him to come to the Oaks. He came and told me it was adopted by Mrs. McColgan before I wrote to her. I left for Lisnahilly, Culmore, for service. It is down the river. I didn't let him know where I had gone. From communication from my sister I went to Oaks to meet him. It was Friday night the day after Donamana Fair (May 25). I met him on the road at my mother's house, after eleven o'clock. It was a fine evening. He came to tell me about the baby. I said I wanted to hear about baby; I didn't want to hear anything else before I heard about baby. He said, how could he tell me about it, if it was dead? I said, “Surely you didn't kill my baby.” “Yes,” said he, “I smothered it with the big coat in the middle of the lane.” I got weak, and went into the house. My mother came out, and took him in. She is very old—over seventy. I asked him what he did with the baby? He said he left it in the lane behind a bush, carried it to Claudy, and buried it in his mother's grave in the middle of same night, near 3 o'clock in the morning. He said he hardly knew what he was doing. I asked did it suffer? He said it almost died in his arms. He said he got a spade and shovel at the parochial house (this is stated to be six or seven miles from Mrs. Irwin's), He stayed till near 3 o'clock Talked of baby most of the time. He asked me not to tell my sister the worst of it. I told him I didn't know what I would do. I wrote a day or two after. Can't say contents. Letter 6 received (identified and entered). Handed this letter to District Inspector Lilly, R.I.C., on June 2nd. My sister gave the other letters.

Cross-examined.—He asked me first on the 25th what I was doing. He said he came to tell about baby. I can't recollect what he said before. I don't remember the other things he said. He came after 11 o'clock and stayed till after 3. My mother gave him tea. I was arguing about baby. I didn't kiss him when he...