[murder - infanticide]

R. v. Masters

Supreme Court of Van Diemen's Land

8-9 May 1835

Source: Hobart Town Courier, 15 May 1835

Friday, May 8. - The court was occupied the whole day with the trial of Sarah Masters, for the alleged murder of her infant. The jury were sworn to secrecy, and the court adjourned the further hearing of the further hearing of the trial till Saturday morning.

Saturday, May 9. - After the most painful investigation and tedious examinations of three medical witnesses, Drs. Scott, Bedford and Park, this case terminated. The Judge, without calling upon the prisoner for her defence, asked the jury whether their minds were not made up after the evidence they had heard. The jury said their minds were made up to acquit her, upon which the Judge replied that he fully concurred with them in the propriety of their verdict, and a verdict of not guilty was accordingly taken.

The evidence was not of a nature to lay before our readers; though it excited intense interest among numerous auditory.

Source: Colonial Times, 12 May 1835

            Sarah Masters pleaded not guilty to an indictment, which contained three counts; the first charged her with, on the 10th of March, bringing forth a male child alive, and afterwards making an assault upon the body of the said child, by smothering it in a blanket, by which act of the mother, the child instantly died; the second count was nearly the same as the first; the third differed from the others, in charging her with producing the death of the child by pressing or squeezing with both her hands, and thereby suffocating or strangling the said child.

            The Attorney General proceeded to point out to the Jury, in a most feeling and pathetic manner, the principal points to which their attention should be more particularly directed. First, upon the fact of her being big with a male child, of this the Jury must be guided by the opinion of medical men; the first count charges her with omitting to tie the naval string, and after putting it in bed clothes, it is stated that she did wilfully commit both the acts of committing an assault upon, and smothering the child; the second count charges her with having produced the suffocation of the child by the means before stated; and the third count stated that the death was produced by pressure on the lungs. He believed the opinion of medical men was that the child did not die from the loss of blood alone, but from the neglect of the mother; the mother being a married woman, would, perhaps, repudiate the idea of becoming the murderer of her own child, but this, he thought, would act against her. The evidence of the husband, in a case of this kind, is inadmissible; but it will be proved to you in evidence, by a woman who was in the house, that on the day, mentioned in the indictment, the prisoner appeared to be in much pain, was offered assistance, but refused it - that during the day she was asked by the prisoner, to make a bed, which she found in a dreadful state. The next day the prisoner confessed to a person of the name of Fenwick, that she had had a child, and that she had concealed it in a box; the witness went to the box, took it out and by the wish of Mrs. Masters, took it to a man of the name of Soby, in a basket, to be thrown into the lagoon, as a miscarriage. The evidence, as it regards the fact, whether the child ever lived or not, is very material; but if in cases, like this, it is not shewn in evidence that the death of the child was not produced by any act of the mother, or any wilful act, still she may be found guilty of concealing the birth of her child.

            [Here some discussion took place between the Judge and the Attorney General upon the subject of the concealment of the birth.]

            The Attorney General referred to a section in Lord Lansdowne’s Act. The section in question provides that if the mother, by secret burying, or other disposition of the dead body, endeavoured to conceal the birth, the Jury may specially find such facts upon indictment for murder, such concealment being punishable in itself as a substantial misdemeanor.

            The Judge decided, firstly, that such burying, or disposition, must be the act of the mother herself, and consequently, that in this present case the disposition of the dead body in the lagoon being the act of either an accomplice, or an innocent agent, it was not within the statute. Secondly, that the disposition of the body intended by the statute is a final disposition, by burying, or other act, equivalent thereto - and that, consequently, the depositing by the mother of the body, in this case, in the box, was not within the statute. Thirdly, that the endeavour to conceal, intended by the statute, is a concealment from all the world, and that, consequently, in this case, her confession to the witness Catherine Fenwick, who was the actual agent in the final disposition of the body, prevented the statute from operating.

            The Attorney General proceeded, and closed his address in a most feeling manner, by pointing out to the Jury the solemnity of the case before them.

            Catherine Fenwick sworn. - Knows the prisoner, Mrs. Masters; the wife of Joseph Master’s, at Oatlands; she believes she lived in the gaol with him; witness was in gaol in solitary confinement four days, for punishment, when she was called upon to assist a woman in labour, where she saw Mrs. Masters; the woman was about a fortnight in labour; she was with her all the time. Mrs. Masters was present when she was confined of a still-born child; the naval string was round its neck; during this time, saw Mrs. Masters frequently; Mrs. Masters appeared very large in the family way. Witness was married at home; has herself had one child; the woman was delivered about eleven or twelve o’clock, by Mr. Park. When she (witness) went to sleep, about two hours after, Mrs. Masters came in and said she was very bad; said she had the cold shivers. Witness then accompanied her to the kitchen fire; she gave her some warm gruel. Prisoner said there was no need of any assistance; she knelt down by the fire as if in pain; witness again asked if she would have any assistance; she said no. She sat on a chair a short time, as if recovered, only she still had the cold shivers. She then told her (witness) to go to rest, and she (prisoner) would go to her own bed. She again asked her to have assistance, which she declined; she then went away, and saw no more of her till next morning, about eight o’clock, when she was in her children’s bed. About six she sent for Dr. Park, and for the other woman; she told Dr. Park that Mrs. Masters had been ill all night. He asked if she (witness) thought there was any danger; she told Mrs. Masters that Mr. Park said if there was any danger she had better take medicine, and prevent it; she said she did not want any of his detering - this she said to Mr. Masters’ she said to her (witness) she wanted no assistance. About nine she took her some breakfast; after breakfast Mr. Masters went into Mrs. Masters room; when he came out and told her (witness) to keep her quiet, and not let her be disturbed. She went in and put some more blankets on the bed. Mrs. Masters told her to tell Neal to take the children out for a walk, so that they might not annoy her; he kept them out almost all day. Left her for about three hours, and then went to her again, and asked her how she was; she said she was much better, and had had a good sleep, and should like to have some gruel; she took her in some gruel, and then left her again. Near the afternoon she saw her again (may be about two hours after), when she again said she felt much better; she said she wanted more sleep and gruel. During the morning no other person had been in the room that she knew of. Near tea time, went into her again; prisoner said she was better; asked her if she would get into her own bed, as she would be more comfortable; she said she would directly, and asked witness to sit down, for she wanted to speak to me. She sat down. She told her (witness) she was very bad; asked what was the matter, wished her to have assistance; she said she did not want any assistance whatever - felt rather sick, and got up and went out of the room; she (prisoner) followed; did not see her get out of bed. Saw the prisoner between the parlour door and the kitchen; she called her back, and told her not to call any person, for she did not want anybody. She had a dark gown on, which she lay in all night; she had it on all day; the gown was loose on her; does not know what also she had underneath. Went with her into her own bed-room, and prisoner got into her own bed. Did not notice anything in her appearance; did not notice whether her figure was changed. Then went to make up the children's beds; the bed and bedding was not as they ought to be - they were soiled and soaked. Asked her what was the matter; thought, from appearances of bed, she either had been confined, or was very near it. Asked her if she had any pains; she said, no - nor did, she want any assistance; she was in her own bed; was affected at seeing the state in which the things were in, when prisoner said, she (witness) was not fit for trouble. Prisoner then told her to call the man and send for half-a-pint of brandy. Witness took it into the room; Mrs. Masters gave witness some of it. She then asked witness if she felt better, for she had something particular to tell her, if she might trust her. Witness said she might. Prisoner then said, “it is all over.” Witness asked her what she meant. She said, she had been delivered of a still-born child, and the navel-string was round the neck of it twice. Witness asked her how she came to manage that by herself, and why she did not call for some assistance,. Prisoner gave no answer to the first question; she said, she did not want any assistance. Witness asked her, what time she was delivered; she said, if Mr. Masters had remained in the room five minutes longer the last time, he must have known the signs. Witness asked her where it was; she said she had it there in the box; she got out of bed, took off the lid of the box, and shewed it to witness; saw nothing but the shoulder and back part of the head of a still-born child, it seemed to be - it was the shoulder and head of a child; it seemed dead; considered it still-born because Mrs. Masters told her so. Did not see the face; could not tell whether it was still-born or not; did not observe any particular colour; as far as could be seen, the shoulder appeared like that of any other infant; there was a blanket round about it, except the back part of the head and shoulder; there was some clothes in the box - they seemed clean; did not see any more bed clothes except the blanket, which was a small one. The box was near the children’s bed; she might have opened it while in bed. After Mrs. Masters had shewn it to witness she got into her own bed; the infant had blackish hair. Witness then sat by Mrs. Master’s bedside; she laughed and said, she (witness) was a poor creature, and not fit for trouble; and told her (witness) it was not Mr. Master’s child, that she had it when he had been absent from her six months, by a man she had been acquainted with before; witness asked her if he was on the settlement (Oatlands.) She said no - she said he had cost her many a pound; she said, if her husband knew she went her full time it would be the cause of their parting, and she loved her husband and two children, as she loved her life; it was the first time she had been guilty of such a crime since her marriage; she did not wish her husband to know it was any thing more than a miscarriage; she then sent for more brandy, to have it in the house for the night - the same man went for it. Mr. Masters came home, when he heard the man ask for the brandy; he was in the public-house at the time the man went for the brandy. Witness then left the room after hearing Mr. Masters say he thought his wife was worse by sending for brandy; returned with some gruel about an hour after. Mr. Masters asked why I did not tell him Mrs. Masters was over her trouble. I told him, it was a miscarriage; Mr. and Mrs. Masters were in bed. Mr. Masters wished to know, particularly, as he had been away some time; his wife then accused him of jealousy; he said he was not, and if it was a miscarriage, he was satisfied. Next morning, took their breakfast into the bed-room; after breakfast, Mr. Masters dressed himself and went out. Went into Mrs. Masters, who said she had been thinking which was the best way of managing it; as Mr. Masters did not know but it was a miscarriage. Witness again resumed - During Wednesday nothing at all was done with the body. On Thursday evening, she gave me something tied up in a cloth; she told me, as I would not put it (the child) away, she would give it to the man, as she would not keep it in the house, she told me to give it to the cook; gave it to the cook; told him he to be sure and put it were the cattle would not find it; he took in a bucket. Has never seen that child since.

            Cross-examined by Mr. Gellibrand. -Was there at the time Mary Mullins was confined; did not know whether the neck of Mary Mullins’s child was broken; Mrs. Masters was very large. Mrs. Masters room was next to Mary Mullins’s; heard Mrs. Masters say, on several occasions, she did not like the doctor, it was a good sized room in which Mrs. Masters lay; cannot describe the size of the room; has been in the room with people in labour when they have been delivered; should not think it possible for a woman to be delivered of a child, and another person to be in the room, without finding it out; did not understand from Mrs. Masters that Mr. Masters was in the room when she was delivered; swears she was not present when the child was born; also, that she did not put the child in the box; gave it to the man. Mr. Masters did not ask him to shew him the child.

Henry Soby examined. - Was cook at the gaol at Oatlands; knows Catherine Kenrick; she brought something in a bucket to him on the 12th of March; told him it was Mrs. Masters’s miscarriage; told him to throw it in the lagoon; took it, and put it in the lagoon; it was wrapped up in a cloth; did not see what it contained; it remained in the lagoon till the morning of the 14th; he then went with Mr. Salmon to the lagoon, about half-past eight in the morning; he had put a sod over it with a spade. On Saturday morning, he dug out what he believed to be the same he put there; Mr. Salmon was present. When he brought it out, he saw the leg of a child - laid in on the ground. Mr. Park came down at the time; he then, at the request of Mr. Salmon, took it to Mr. Dudfield; he put it in a back place, up stairs, in an old empty box; has never seen it since. Mr. Masters, Mr. Salmon, Mr. Park, and Mr. Dudfield, all went up stairs.

Mr. Salmon examined. - Went on the 14th March with last witness to the lagoon, when he pulled something out of the lagoon with his hands; he saw the leg of a child hanging out; it was wrapt in a piece of a patchwork guilt - examined it; it was a full-grown child; it was very dark and had very large features - very black hair - Mr. Park was present. Went with Soby into a room of Mr. Dudfield’s, up stairs; the child was laid on the floor; is sure it was the same body taken out of the lagoon; was present when Mr. Park dissected the body; it was dissected on the same day.

Cross-examined by Mr. Gellibrand. - He went up the ladder, and saw Soby put the child on the floor; he then went away from the house, and returned in about half an hour; he examined the child when it came out of the lagoon; it was the largest child he had ever seen.

Mr. F. J. Park examined. - Is surgeon at Oatlands; recollects 14th March; was present when a child was taken out of the lagoon; he remarked it was a large child; thinks it was a nine months’ child; examined it more critically afterwards; dissected the body about 12 o’clock the same day; it was at Mr. Dudfield’s inn; knows he dissected the same body that was taken out of the lagoon; the child was perfect; should say the child was not entirely of European origin; has no doubt of it, from the general appearance of face, the width of nostrils, and the thickness of the nose and lips; the hair was jet black, and thick; much thicker than children’s hair usually is; the face was very dark; there was a woolly appearance on both sides of the face; the colour of the body was not much darker than children generally are when born; he did not remark that the skin was unusually dark; knows Mr. Masters - he is not a black; there is a generally received criterion to know whether the child was full-grown; nails were full-grown; it was of nine pounds weight; the appearance of the flesh was plump, healthy, and natural; the eye was full and prominent; the pupil of the eye was clear; the naval string was remarkably long; took a piece of string, of the length of the child, and doubled it in half; the centre from the ends, when double came directly opposite the naval; his opinion was, that respiration had taken place in the child, because he found air in the lungs; he opened the chest - took out the lungs, the heart and the liver, and put them into a basin of water they were buoyant - they floated at the top of the water.

[His Honor impressed on the mind of the witness, the necessity of being very particular in the minuteness of this part of his evidence, as the prisoner’s life might depend on what he said.]

He then proceeded. The basin was sufficiently deep for no part of the liver or heart to touch the bottom; afterwards took the whole out of the water, and cut off a portion of the lungs, and put it in the water, previously examining it; found an unusual quantity of blood and air in it; gently squeezed it; saw small bubbles of air escape; the piece floated on the surface very readily; cut into the remaining portion of the lungs, and found an unusual quantity of blood throughout the whole structure, and put it in the water - that also floated on the surface; examined the head; an unusual quantity of blood in the veins, or blood vessels of the head; there was a small tumour in the back of the head, externally; the blood in the veins was very dark; darker than usual; the unusual quantity of blood, he should consider, was caused by the action of respiration being checked - it would be produced by strangulation - he thinks it might be the effects of smothering; from these appearances alone, cannot form an opinion as to the cause; there was no external mark of violence on the body whatever; thinks, in this case, death could not have been caused by the twisting the naval string round the neck; from the lungs being inflated, and the naval string being twisted round the neck, the child could not have breathed; if the mother, or any other person, had, after birth, twisted the naval string round the neck of the child, so as to cause death, he should have seen the marks - there were no such marks; the lungs, when the chest was opened, appeared to fill the cavity of the chest - the lungs did not collapse, on opening, that he observed; there was no putrifaction in any part of the body - the naval string was cut; when the child was found, the naval string was not tied; thinks death might be produced by the naval string being omitted to be tied; in such a case, the blood vessels would have been empty - the face was not distorted, and a child to have bled, as described, a very slight pressure on the mouth or nostrils, would produce death; he partly imputed the death of this child to the naval string not having been tied, and partly from respiration having been checked - respiration might have been stopped by something; by a blanket, or pressure on the face, or considerable pressure on the lungs; thinks the lungs would not have been so fully inflated by one single gust of air; thinks, in this instance, suffocation alone could not have produced death; had a conversation with the prisoner, previous to finding of the child, with Mr. Masters present; her husband said, it was a pity she had not shown him the child; she said, she had had no child. (The attorney General said, it was not necessary to publish this part of the evidence.) This witness was examined and cross-examined at considerable length, the nature of the evidence will not allow of its publication.

Saturday, May 9

Mr. Park re-examined. - The description he gave yesterday, of the state in which he found the child, he still adheres to; considers, if the child had died from suffocation alone, the child’s face would have been much darker; cannot say whether the tumour on the child’s head was caused by a blow after the child was born alive; it must have been rather a violent pressure on the skull to have caused such a tumour - the tumour was as large as the palm of his hand; it was of the natural colour of the skin, and swollen; if in case the death of the child had been by the pressure which caused the tumour, he was of opinion the child would not have breathed - not even a single gasp.

By the Attorney General. - Strangulation may be produced by suffusion of blood in the brain, as well as by a stoppage of respiration; considers the blood he observed in, or on the brain, was a tergisscence or congestion, rather than the effect or rupture in the vessels - there was not blood thrown abroad in the substance of the brain, nor on the surface, that is, loose blood out of the vessels.

Mr. Bedford examined. - Has known cases where respiration has commenced before the birth of a child - fainting is a possible effect on a woman after being delivered without assistance in a bed, and the life of the child may thereby be endangered.

By His Honor. - There are a variety of causes besides suffocation which might produce congestion after birth of a child; the filling of the chest by the lungs, is an additional proof of the child being suffocated. Dr. Bedford explained the difference of death by respiration and inspiration - the latter was generally the case in suffocation, and caused the lungs to be entirely inflated with air, which would not have been the case, if death had been produced by other causes.

Dr. Scott examined. - Cannot, from the evidence, form an opinion as to the remote cause of the child’s death - the child may have died from suffocation; cannot form an opinion as to the immediate cause of the child’s death, unless by stoppage of respiration; but, whether caused from natural or artificial means, cannot form an opinion - the appearances of blood in the brain, and also of the lungs, might be caused by suffocation; does not think it possible those appearances might have been caused by any thing else but a stoppage of respiration; he thought it probable, that a child, with such appearances, might have died from a natural cause; it was not improbable, that the child might have died without his being able to detect the cause, even by examining the body. The more probable cause of death in this case, was smothering.

By Mr. Gellibrand. - If, in case the child had died from exhaustion, it would have had the healthy appearance described by Dr. Park.

By His Honor. - Could not speak so decided as Dr. Bedford did, as the lungs being so full being a test of suffocation.

This was the case for the prosecution.

Sarah Masters, when called upon for her defence, said she was innocent of it.

His Honor summed up, and the Jury returned a verdict of Not Guilty.

His Honor thought the misdemeanor with which she had been charged, might, probably, come within the statute of manslaughter; and, therefore, her being acquitted on this charge, did not prevent her from being tried for the other.

The Attorney General thought the same want of evidence would be found in one as the other - she was, therefore, discharged.