[manslaughter – medical negligence]

R. v. Valentine

Supreme Court of Van Diemen’s Land

Pedder C.J., 7 January 1842

Source: The Launceston Courier, 16 January 1843

            Before His Honor Sir John Lewis Pedder, Knight, and the following jury:- William Fletcher, James Raven, William Bransgrove, Josias McAllan, William Milne, James Stewart, Charles Best, R. L. Orr, John Young, James Hall, James Walbourn, William Longhurst

Saturday, January 7th

            William Valentine was indicted for the manslaughter of the late Theophilus Swifte, Esq., by having negligently, carelessly, and feloniously, administered to him a large quantity of laudanum, in the stead of some other medicine. The declaration contained two counts, similar in substance.

            Mr. Macdowell appeared for the defence.

            The Attorney-General stated the case to the jury. It was his painful duty to call their attention to the circumstances which placed the highly respectable gentleman now before them in the lamentable position of a prisoner at the bar. Although it was his duty to act as prosecutor, he regretted to hear that numerous witnesses were in attendance from all parts of the country to testify to the high character which the unfortunate gentleman before them had ever maintained. He was prepared to admit, that a more respectable and respected person did not exist in the colony - and, until the fatal transaction for which he had now to answer, possessed a character unimpeached and unimpeachable. He regretted therefore that the witnesses had been put to so much inconvenience, for it was not part of his duty, and God forbid that he should do so, to detract unnecessarily from the character of the prisoner. The facts of the case had been detailed before a coroner’s inquisition. From them it appeared, that on the morning of the 20th November Mr. Swifte felt himself indisposed before breakfast, and sent for some medicine to Dr. Valentine, who kept a dispensary at Campbell Town. The prisoner intended to have sent a black draught, - and here he wished to impress upon the minds of the jury, in the strongest language, that he admitted to the fullest extent, that the awful mistake which Dr. Valentine committed was, as a moral fact, perfectly accidental, although it was necessary for the law to allege that it was done feloniously; and if they were of opinion that the negligence evinced was of a culpable nature, that was sufficient to sustain the charge which it had become his distressing duty to prosecute. He should not be able to prove whose hand poured out the fatal potion, and no human eye saw it taken by the deceased gentleman. Sufficient evidence would be collected upon these points from the admission of the prisoner. He did not wish to keep back one extenuating circumstance, and had no doubt that no one more deeply deplored the awful occurrence than the prisoner himself. When the dreadful mistake was discovered he was greatly agitated and distressed, and every means were resorted to, with the hope of averting the fatal consequences which ensued. At one time these efforts were supposed to have been successful, but the inadvertence was found to be irremediable, and deprived the lamented gentleman of his life. Dr. Valentine had offered to the family and relict of the deceased every retribution in his power. He should be sorry to harrow up his feelings, but whilst the remainder of his life would necessarily be embittered by the reflection, that no recompense he could offer would ever compensate for the evil he had unintentionally inflicted, he (the Attorney-General) also as public prosecutor felt bound to declare, that nothing he could offer would conciliate the offended laws of his country. It was not his place to measure the amount of punishment which would attend a conviction upon this charge, varying from a small fine and imprisonment, to transportation for life. That rested in the hands of his Honor, who he was sure would temper justice with mercy. Having performed the first part of his duty, he would proceed to call the witnesses.

            Mr. Robert Aiken, jun. - I knew Mr. Theophilus Swifte; he kept the school at Campbell Town, I was one of his scholars; recollect being sent on a Sunday in November by Mr. Swifte to Dr. Valentine’s for a light does of medicine; Dr. Valentine dispensed medicines at Campbell Town. I saw him, and told him Mr. Swifte wanted a light dose of medicine, and “not one that would kill a horse;” that is what Mr. Swifte desired me to say to him - it was said in a good humoured jocular manner by Mr. Swifte, and Dr. Valentine no doubt understood it so. I stopped at the door of the house, and Dr. Valentine went in after I had spoken to him. He remained in the house two or three minutes, and brought out something in a bottle wrapped up in paper, but I could not see what was; I knew it was some liquid, because I shook the bottle; Dr. Valentine said “that’s a dose that won’t kill an ass,” - this was in the same friendly manner that Mr. Swifte had spoken. I delivered that bottle to Mr. Swifte, I carried it home to him directly; it took me about four minutes to get from Dr. Valentine’s to Mr. Swifte’s; I delivered it to him immediately on my return - he was just gone into the store. I do not know what became of the contents of that bottle; I gave it to him about 9 o’clock, that was before breakfast; I did not see him again that day. I mentioned to him what Dr. Valentine said, and he laughed. [The matter in which this witness gave his testimony, elicited expressions of approbation from his Honor.]

            Mr. William Hay. - I knew the deceased; I was an assistant at his school; I recollect seeing him at the breakfast table on the 20th November, and before that time had heard him complain of illness. When I went into the breakfast room, Mr. Smith, Messrs. William and Effingham Lawrence were there. Deceased said he had taken a dose of medicine, and that it was different in taste to any he had received before of the same sort; he took a cup of coffee, and ate about half a chop, and complained the dose affected him in a similar manner as if he had taken brandy; he remarked shortly afterwards he thought he was going to faint, and gave us to understand it was no unusual thing for him to faint, and that there was no cause for alarm; I observed a paleness in his features at that time which I had not observed previously. About three or four minutes afterwards I observed his countenance change; I went up to him and asked what I could do for him - I received no answer; I instantly alarmed the servants, and got water and eau-de-cologne, which I applied to his temples; a message was sent to Mrs. Swifte, who was in the house, that Mr. Swifte had fainted; I retired from the room for her to enter. I immediately sent for Dr. Valentine, who came directly -less than five minutes elapsed. I was sent for as soon as he arrived into the room where Mr. Swifte was, he was in a reclining posture in an easy chair, apparently senseless. Dr. Valentine was arranging a stomach pump; it was used upon Mr. Swifte, and the contents of the stomach drawn off by it as expeditiously as possible. After the greater part of the contents of the stomach had been drawn off, Dr. Valentine applied his nose, and said he had given Mr. Swifte, inadvertently, laudanum instead of a black draught; that observation was directed to me particularly. Only myself and one or two servants, attending on Mr. Swifte, were present. Dr. Valentine then applied stimulants; a small quantity of brandy was introduced into the stomach, by means of the stomach pump, and also a portion of sulphuric ether; smelling salts were applied to his nose, and small portions of water dashed into his face; all this was done by Dr. Valentine; Mr. Swifte’s hands were rubbed continually, and his feet warmed; during this time Mr. Swifte’s respiration was interrupted and difficult to relieve which warm flannels were applied to the chest; an attempt was made to see if he could walk, but he could not use his legs at all; he was then placed on a mattress on the floor, and the bellows supplied to the nostrils, which appeared to be efficacious, as the respiration became less interrupted, and apparently more easy; strong hopes of his recovery were then entertained. This improved state continued about half an hour, when the respiration became more interrupted than it had been before. An additional portion of ether was then introduced into the stomach, and he was bled in the right arm; he died about half-past 5 o’clock on the same day. Dr. Valentine was with Mr. Swifte from about half-past 10 till he died, incessantly administering to him. About half an hour elapsed between the time when Mr. Swifte complained of the bitterness of the draught and arrival of Dr. Valentine; he appeared cool, calm, and collected whilst so administering; I never left the room till death occurred. Dr. Valentine appeared distressed at the occurrence. There was another medical gentleman in the neighbourhood, but he never practised. A boy was sent for Dr. Valentine, but was not told to bring a stomach pump; he said he suspected he had made an error, and therefore brought the pump with him; he said he went into the surgery and discovered his mistake, as he found the bottle containing the laudanum on the surgery table.

            By His Honor. - This is Dr. Valentine of whom I have been speaking, I had known him nearly two years at the time of this occurrence, he had been living at Campbell Town during that time, practising as surgeon, prescribing and administered medicines; do not know whether he is a doctor of medicine. I think I had seen Mr. Swifte a quarter of an hour before I saw him in the parlour, he was then walking in the school-room.

            By Mr. Macdowell. - I know that Mr. Swifte was subject to fainting, he told me he felt unwell that morning; the servants removed the fluid drawn from the stomach, it was removed without any directions from the prisoner, the contents of the stomach were drawn off in less than ten minutes. Prisoner has borne the highest character for humanity and kindness, he was on terms of great intimacy with Mr. Swifte, and in the habit of seeing him daily.

            John Stewart Kilgour, Esq. - I am a doctor of medicine, and reside at Perth, I was called in to examine the remains of Mr. Theophillus Swifte, I examined his body on the 22nd November, there were no external marks upon his person to account for his death; I opened the body and examined it internally there were no unhealthy appearances in the stomach, it was natural; the contents were partly fluid and partly solid, the solid consisted of meat, the fluid was of a mixed nature, and of a peculiar smell, but neither myself nor Mr. Paton who was with me could detect the slightest smell of laudanum; do not think the smell would have remained in the stomach after the application of the remedies spoken of by the last witness. It is not usual when a person dies from the effect of laudanum, pumped off the stomach, to leave any visible morbid effects. I examined the chest, the lungs were healthy but there was a slight engorgement of blood, which might have arisen from various causes, had he died in a fainting fit such appearance might have been found. I could not account for Mr. Swifte’s death from the appearances I observed; it would not strike me as being anything extraordinary if laudanum had been taken and pumped off without leaving any morbid traces. I have heard the last witness’s account of the remedies resorted to by Mr. Valentine, and believe them to be the best means that could have been adopted. A black draught very loosely resembles laudanum in colour and appearance; they do not resemble each other in smell; laudanum from its strength and peculiarity of smell is easily discovered. It might happen that a person pouring laudanum from one phial to another might not perceive the odour; it is a general practice to have poisons labelled. Any poison of that nature would have a more sudden effect upon an empty stomach.

            By Mr. Macdowell. - Laudanum is generally labelled Tinct. Opii., it is a common medicine, but not an ingredient of the black draught; from the appearances I observed Mr. Swifte’s death, I should have supposed might have been caused by apoplexy. Had I known that Mr. Swifte was subject to fainting fits, I might have been led to attribute his death to that cause. The appearances of themselves would not have conclusively determined the cause of death.

            The first witness was re-called, and identified Mr. Valentine as the gentleman to whom he alluded.

            Rev. W. J. R. Bedford. - I reside at Campbell Town and knew the deceased, and Dr. Valentine. I have frequently been in his surgery; his medicines are all labelled; I have also observed the bottle in which laudanum is kept, on the evening of the 20th November; after Mr. Swifte’s death, it was on a shelf behind a curtain; there were several bottles near it; it was labelled tincture of opium. There was a bottle containing black draught next to it; it had a label but not “black draught” it was mistura cuthartica they were exactly similar in size and colour, and the contents also, the quantity of laudanum was rather less than that of the black draught.

            By his Honor. - The two mixtures had not always been kept in the same shelf or in similar bottles, they used to stand together occasionally, but only latterly; there was a slight, but not striking difference in the stoppers.

            By Mr. Macdowell. - I have known Dr. Valentine about three years, he has born the best possible character for humanity; I am the clergyman of Campbell Town, Dr. Valentine has family prayer in his house in the morning and evening; he was District Assistant Surgeon.

This closed the case for the crown.

            Mr. Macdowell addressed the jury for the defence. It was his professional duty in the position he then stood as an advocate, to submit for their consideration any and every topic which in his judgment tended to an acquittal. He would convince them that they could not satisfactorily and conscientiously pronounce a verdict of guilty. Although the course he was about to adopt might not perhaps meet with the approval of his client, although he might be desirous not to take advantage of technicalities, still he considered it his (Mr. Macdowell’s) duty to avail himself of every point favorable to his case. Upon the testimony offered what was there to convince them that Mr. Swifte even came to his death by drinking laudanum, much less that poison was administered to him by his client. Nothing but conjecture; Dr. Kilgour was the principal witness upon that subject, and he stated that disconnecting the statements of other witnesses, he could not accurately determine what was the cause of death. The learned counsel commented at considerable length upon the testimony of the witnesses, and strenuously urged that there was no satisfactory proof on this point. There might be strong grounds for suspicion, there might be great probabilities, but this was insufficient to justify a jury in bringing in a conviction. The next point for their consideration was whether the prisoner had acted with culpable rashness, in negativing which imputation the learned gentleman dwelt forcibly upon the extenuating circumstances in the foregoing testimony. They would take into consideration the character of his client, and not treat him as if he had been a dissipated inconsiderable drunkard. He stood high in society for humanity, kindness and benevolence; they should protect his character, prospects, and fortune, and not aggravate the loss his deep and irreparable misfortune had produced. Mr. Macdowell concluded by complementing the Attorney-General upon the honorable and candid manner in which he had conducted the case.

            Terrias Fairbank. - I remember the morning of the day on which Mr. Swifte died, it was Sunday, I recollect young Mr Aitken coming to his house, my master was reading prayers to the family at the time, he went to the door, he was away about two minutes and then returned to the room and continued reading prayers.

            Rev. William Bedford. - I am the senior chaplain of this Island, and have known Dr. Valentine since his arrival in this colony, he has borne as good a character for humanity and kindness as a man could bear.

Henry Keach, Esq. - I was the father-in-law of the late Mr. Swifte, I have known Dr. Valentine ever since he has been in the district, about three years, he was on very intimate terms with Mr. Swifte, I have always heard the best of characters of Dr. Valentine, and believe him to be a most humane man.

            Andrew Gatenby, Esq. - I live in the district of Campbell Town, and have known Dr. Valentine since he came to reside there; he has borne as good a character for humanity and kindness as any man can possibly could bear.

            Captain Riddle. - Mr. Valentine came to this colony as surgeon of my ship the Derwent, I always entertained the highest opinion of Dr. Valentine, and do so up to the present day.

            Mr. William Learmonth of Ross. - I have known the prisoner about two years and a half, he has attended my family, and I have always regarded him as of great humanity and professional attention.

            Phillip Smith, Esq. - I reside near Ross, I have known Dr. Valentine a little more than two years, his character has been remarkably good for humanity and kindness.

            Benjamin Horne, Esq. - I reside at Chiswick, near Ross, have known Dr. Valentine between two and three years, he has borne the very best of characters during that time for humanity and kindness; I have employed him professionally.

            The foreman of the jury expressed in the name of his colleagues an entire satisfaction as to the character of Dr. Valentine, and Mr. Macdowell said therefore he would call no more witnesses.

            The Attorney-General replied, principally correcting the error into which the counsel for the prisoner had fallen, in alledging that it was the necessary to prove a recklessness of life. The learned gentleman submitted that if the jury were satisfied that a culpable carelessness was manifested it was sufficient to sustain that indictment.

            The length of these reports prevents us from giving the Attorney-General’s speech at length, which was a particularly feeling and eloquent address.

            The Chief-Justice summed up at great length and with extreme carefulness, going over the whole of the evidence with great patience, and commenting with his usual impartiality upon whatever appeared to him in favor of or against the prisoner. The first question for them was did Mr. Swifte die from taking poison? If so was it sent by Dr. Valentine? If they satisfied themselves on these points then they must say whether the necessary degree of caution was or was not exercised.

            The jury did not retire long and brought in a verdict of guilty with a strong recommendation to mercy.

            The Chief Justice addressed the prisoner, and said he should be sorry to aggravate the sufferings he must have endured in consequence of the melancholy occurrence which placed him there, nor would he do more than express his entire concurrence with the verdict of the jury. Taking into consideration their recommendation to mercy as also the palliating circumstances of the case, the sentence he should pass would be a fine of twenty-five pounds to the crown.

            The prisoner left the court in company with Mr. Thompson, and his Honor thinking perhaps he had been taken into custody, recalled him, and said he was not to consider himself in charge of any one.

            The case created a great interest and lasted a considerable time; the court-house was crowded throughout.