[97]. “By the common law, if it be doubtful whether a criminal, who at his trial is in appearance a lunatic, be such in truth or not, it shall be tried by an inquest of office to be returned by the sheriff of the county wherein the court sits, and if it be found by them that the party only feigns himself mad, and he still refuse to answer, he shall be dealt with as one that stands mute.” 1 Hawk. P. C. p. 2, and authorities there cited; as to standing mute see vol. 2, p. 56, and 12 Geo. 3, c. 20.
[98]. For the case of Bellingham executed for the murder of Mr. Percival, see Appendix to Collinson on Lunacy.
[99]. Lord Ferrers committed the murder of his steward Johnson after drinking porter to excess. See State Trials. John Dey of Dereham, in Norfolk, after a paroxysm of drunkenness rose in the middle of the night, and cut the throats of his father and mother, ravished the servant maid in her sleep, and afterwards murdered her! A somewhat analogous case was presented to us in the history of Nicholson, who murdered Mr. and Mrs. Bonar at Chiselhurst. These men were, however, condemned and executed.
[100]. Here again the law of the land is at variance with what we conceive to be the law of Nature; and it is at variance with itself, for it is a strange anomaly that by the law of real property, an infant in ventre sa mere may take an estate from the moment of its conception, and yet be hanged four months afterwards for the crime of its mother.
[101]. This is another instance in which the question of superfœtation may arise, for a woman, according to that doctrine, may be delivered of one child, and at the same time be pregnant of another.
[102]. Sir Mathew Hale says this case did occur at Aylesbury.
[103]. For the Scotch law on this subject see Burnett’s Crim. Law, 595.
[104]. Cases of mistaken identity have occurred more frequently than persons unacquainted with the subject could suppose. We shall relate a few instances. At the Old Bailey sessions, for September 1822, before the Common Serjeant and Middlesex Jury, Joseph Redman was indicted for assaulting William Brown, on the King’s highway, and taking from his person a gold watch, &c. his property. Prosecutor stated, on cross-examination, that he knew a man of the name of Greenwood, so much like the prisoner, with his hat on, that he should hardly know one from the other. Greenwood was in custody, and appeared at the bar, when the similarity between them struck every body with astonishment. The prisoner, Redman, proved an alibi, and the jury returned a verdict of not guilty. We have frequently in the preceding parts of our work alluded to the case of Richard Coleman, a brewer’s clerk, who was indicted at the assizes held at Kingston, in Surry, in March 1749, for the rape and murder of Sarah Green on the 23d of July preceding, when he was capitally convicted, and executed on Kennington Common, on the 12th of April 1749. In this case, Coleman was positively sworn to by Sarah Green, just before her death, as being one of the assailants. Two years after the execution of this unfortunate man, it was discovered that James Welch, Thomas Jones, and John Nicholls, were the persons who had treated Sarah Green in the inhuman manner which had occasioned her death. John Nicholls was admitted King’s evidence, and Welch and Jones were accordingly convicted and executed. Another case in which the identity of a person was erroneously sworn to, was that of Mr. James, a tailor, who was robbed on the Dulwich road, by the notorious gang of highwaymen that infested the environs of London, and was headed by a person named Cooper, who, after a life of crime, suffered death for the murder of Saxby, near Dulwich. In this case Mr. James swore positively to two soldiers in the Guards, who were accordingly tried for the offence, but, fortunately, acquitted. A short time after this event the same gang robbed one Jackson, a farmer, in a lane near Croydon, for which robbery two farriers, named Skelton and Killet, were apprehended, and being tried at the ensuing assizes for Surry, the latter was acquitted, but the former was convicted on the positive oath of the person robbed, and, although innocent, suffered death.
Martin Clinch, bookseller, and James Mackley, printer, were tried at the Old Bailey, in 1797, before Mr. Justice Grose, for the wilful murder of Syder Fryer, Esq. at the back of Islington workhouse, and were convicted and executed. On this occasion the identity of the prisoners was positively sworn to by Miss Ann Fryer, who was in company with her cousin, the deceased, at the time of the robbery and murder. Some years afterwards Burton Wood, who was executed on Kennington common, and Timms, who suffered a similar fate at Reading, severally confessed at the gallows the commission of the deed, for which Clinch and Mackley had innocently suffered. To the above interesting cases we may add that of Robert and Daniel Perreau (twin brothers,) who were tried in 1775, and executed for a forgery upon Mr. Adair. These persons so nearly resembled each other that Mr. Watson, a money scrivener, who had drawn eight bonds, by order of one or other of the brothers, hesitated to fix on either, in consequence of their great personal resemblance; upon being pressed, however, to make a positive declaration, he at length fixed upon Daniel. The name of these unfortunate men is familiar to the public, from the well known exclamation of our late king, upon being asked to pardon Dr. Dodd, “if I save Dodd, I shall have murdered the Perreaus.”
Upon the subject of personal identity, a curious question has presented itself for discussion, which requires some notice on this occasion—the degree of light which may be necessary to enable an observer to distinguish the features, so that the person maybe hereafter identified? In a case which occurred in France in 1809, of a person shot in the night, it was stated that the flash of the pistol enabled the witness to identify the features of the assassin. The possibility of the statement was referred to the physical class of the Institute, who reported against it. Still, however, M. Foderé, who relates the circumstances, is inclined to believe that, if the persons be at a small distance, and the night be dark, such an event is by no means impossible. (Med. Leg. t. i, p. 28.) The following English case may be here introduced in illustration of the question. “John Haines was indicted, January 12, 1799, for maliciously and feloniously shooting at H. Edwards, T. Jones, and T. Dowson, Bow-street officers, on the highway. Edwards deposed that, in consequence of several robberies having been committed near Hounslow, he, together with Jones and Dowson, were employed to scour that neighbourhood; and that they accordingly set off in a post-chaise on the evening of Saturday, November 10th, when they were attacked near Bedfont by two persons on horseback, one of whom stationed himself at the head of the horses, while the other went to the side of the chaise. The night was dark, but from the flash of the pistols he could distinctly see that it was a dark-brown horse, between 13 and 14 hands high, of a very remarkable shape, having a square head, and very thick shoulders; and, altogether such that he could pick him out of fifty horses; he had seen the horse since at Mr. Kendall’s stables, in Long Acre. He also perceived, by the same flash of light, that the person at the side-glass had on a rough-shag, brown great coat.”