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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Henry [1839] NSWSupC 36

manslaughter - infanticide - child, neglect of - women defendants in crime

Supreme Court of New South Wales

Stephen J., 14 May 1839

Source: Sydney Herald, 15 May 1839[1] 

Ellen Henry, the elder, was indicted for manslaughter.  The information set forth that the prisoner being moved, and seduced by the instigation of the devil, and wickedly contriving and intending to starve, kill, and slay Ellen Henry, the younger, her infant daughter, at divers times between the first and the thirty-first day of March, did neglect, omit, and refuse to administer proper and necessary food, milk, meat and drink, for the maintenance, sustenance and support of the body of the said infant, whereby it died.  The second count set forth that the said Ellen Henry the younger, being an infant under the age of three months, the prisoner well knew, that on account of her tender age she was unable to support herself, and that it was necessary she should have the milk of the prisoner her mother, and yet, the said prisoner, at divers times from the 1st to the 31st of March, became, and remained in a state of intoxication, and took such large quantities of rum, that her milk became injurious, unwholesome, unhealthy and poisonous, and yet, the said prisoner, gave the said infant the milk, and by means of its deleterious qualities, the constitution of the said child became emaciated, and the child became sick, distempered and diseased, and languished until the 31st March, when she died.

The prisoner who is the wife of a labouring man, was much addicted to habits of intemperance, but, would sometimes abstain from intoxicating liquors for a week together, and when sober she was a kind mother.  She had an infant child about three months old, which died on the 31st March.  Upon a post mortem examination of the body by Mr. Hosking, he found the child healthy in every part; he took out the stomach, and found about a table-spoonful of crude, undigested matter, like curded [sic] milk, and the upper part of the stomach was considerably inflamed; there were no signs of food, but the matter before described, and the intestines were empty; the child was emaciated, and, in his opinion, died from exhaustion and want of proper nourishment; the mother taking ardent spirits, would very much injure the child, and even the smallest quantity would affect it, as it lessens the quantity of the milk, and makes it unwholesome.  Several witnesses called, who proved that the child was often left lying in the bed crying, and one of them had given the child the breast while the mother was drunk.

The prisoner merely asserted her innocence, and called two witnesses to character, but they merely went to confirm the statements of the witnesses for the prosecution.

His Honor said, that if the Jury thought that the child died from the culpable omission as charged in the first count, or the commission as charged in the second, they must say so by their verdict.  It was not necessary that the prisoner should imagine that the neglect of her child would cause its death, for then, the offence would amount to murder, but, if they considered that the prisoner must have known that the child required more care and nutriment, than she was giving it, it was sufficient.  The principal evidence on which the Jury must rely, was the surgeon's, first count than the second.  The case was certainly one of doubt, and it was for the Jury to decide.

The Jury retired a few minutes, and returned a verdict of guilty, but recommended the prisoner to mercy, on account of her previous character. -- Remanded.


Dowling C.J.,  Willis and Stephen JJ, 18 May 1839

Source: Sydney Gazette, 21 May 1839[2] 


Eliza Henry, who was convicted of manslaughter in causing the death of her infant child, was next put to the bar.  His Honor Mr. Justice Stephen, in passing sentence, said that it was clearly proved the child died from starvation, brought about by the cruel neglect of its own mother, but she was reduced to the level of a beast by her habits of intoxication.  The Jury, he said, had certainly recommended her to mercy, not on account of any redeeming circumstances in the case, but of her previous good character; and the Judges (His Honor said) thought this recommendation might be attended to as it was the first case of the kind, and as it might be that the prisoner and others were not aware of the punishment they were subject to.  The sentence he was about to pass, a very lenient one, was, that she should be confined in the Sydney Gaol for two years.



[1] See also Sydney Gazette, 16 May 1839; Australian, 16 May 1839; and see R. v. Ward, 1839; R. v. Appleby, Australian, 5 February 1839.  In the latter, a woman was convicted of concealing the birth of a child.  The child had been found dead in a sewer with its skull fractured.  Jane Appleby was acquitted of murder, but convicted of concealing the birth and sentenced to imprisonment in the gaol for 12 months.

[2] See also Sydney Herald, 20 May 1839.

Published by the Division of Law, Macquarie University