26 September 1857
DR. TUMBLETY'S CASE - PROCEEDINGS YESTERDAY AFTERNOON.
DR. TUMBLETY'S CASE - PROCEEDINGS YESTERDAY AFTERNOON.
Dr. Picault gave evidence to the effect that Helebore was a powerful drastic cathartic, and by its energetic action on the bowels and intestines was capable of producing abortion.
Dr. Sutherland also gave evidence that black helebore, either in powder, tincture or decoction, by its violent action on the stomach and Bowels, was capable of producing abortion, and moreover, that the effect of a combination of medicines, such as are said to be contained in the pills, tend to render the action of the former less uncertain.
Both of these gentlemen were subjected to a long cross-examination by Mr. Devlin, With a view of showing that the analysis to which the drugs had been subjected was not sufficient to support the conclusions of the analyzer as to the elements which went into their composition, and that even if those elements were correctly stated, they were not of a character, combined as they were, to produce the supposed effect, while they might have been used for innocent purposes.
Saturday, September 25
COMMITTAL OF THE PRISONER
Saturday, September 25
This forenoon the following affidavit was taken in the case of Dr. Tumblety; -
Kenneth Campbell sworn: - states that he is an assistant druggist, on the 14th of September, a young man representing himself to be in the employ of Dr. Tumblety, came to the shop of Johnston Beers and Co., know as the Medical Hall, and handed me a paper containing a prescription for making about eleven and a half ounces of pill mass. This mass was to contain five ounces of socotrine aloes, one half ounce cast steel soap, one ounce gamboge, One ounce colicinth, one ounce extract of gentian, one ounce mandrake, two ounces capsicum, one half drachm oil of peppermint. This was made and taken by our porter to Dr. Tumblety's office. We made no liquid for the doctor. He has seen in the Police Office two pills, said to have been analised by Mr. Birks, and he believed they were made from the above prescription, which he made. In the preparation which he made for Dr. Tumblety, there was neither oil of savine nor cantharadies. He has also examined some fluid, said to have been analyzed by Mr. Birks. He cannot find in it, as far as he can tell by the taste or smell, any black helebore.
No questions were put to the witness.
The prisoner then made his voluntary statement before Mr. Coursol. This we could not obtain.
There being no further evidence, and the examination being closed, the Police Magistrate took his place on the bench, and rendered his judgment in open court.
Mr. Devlin, counsel for Dr. Tumblety, rose and addressed the court. As counsel for the prisoner he would apply for his discharge. His Honor could do so if he thought the facts of the case warranted it. Not one witness, he said, that the fluid in the bottle and the pills in the box were the same as the Doctor gave the female Dumas. Not one tittle of evidence was brought forth to show this was the case. He had no doubt but that his honor would do justice in this case, as he was invariably in the habit of doing in all cases that came before him. On behalf of the accused he felt it his duty to thank his Worship for the desire he had shown to allow his client all the means of defence, which it was possible. For himself, acting as counsel, all possible latitude had been given him. Speaking of the general character of the evidence, he would say that it was utterly insufficient to justify a conviction before a jury. He would also call attention to the Court to the fact that no chemical analysis of the medicines had been obtained, and that in this state of affairs, no conviction could be got; for if a man were to be convicted merely on the taste and smell of Mr. Birks, then there would be no safety. He was prepared to go before a jury and show that his client never attempted the crime with which he was charged. He knew that the Police Magistrate was not the prosecutor in this case; he was only used by means of his official capacity, to serve the purposes of others. If, however, His Honor held views different to him, and that the evidence was sufficient to send him to a higher tribunal, he trusted that he would allow his client to be admitted to bail. We are prepared to bring forward respectable persons who will go bail to any amount for which Dr. Tumblety's appearance, still he hoped the amount would not be made too large. This was no place to enter into a defence; he would be prepared for that at a proper time if necessary; his only duty now was to apply for the admission of his client to bail. He relied on his worship to do his duty, hoping that he would remember the saying "that everyman is believed innocent until found guilty."
C.J.Coursol, Esq., said that the accused in the present case was one Francis Tumblety, who was charged with having caused to be taken by one Philomene Dumas, poison or some other noxious drug for the purpose of procuring abortion. The prosecution is brought forward under Provincial Act 4 and 5, Vic. Cap. 27, which is an exact counterpart of the English law, 1st Vic.cap.95. The Act says, "that whoever shall unlawfully administer, with intent to produce abortion, any poison or noxious thing, or by any other means whatsoever, with a like intent, shall be guilty of felony, and being guilty thereof, shall be liable at the discretion of the Court, to be imprisoned in the Provincial Penitentiary, at hard labor during the term of his natural life, or for any term not less than seven years, or to be imprisoned at the discretion of the Court for a term of not less than two years.", therefore decisions rendered in like cases in England must be recognized here. The charge is a grave one, and fortunately a very rare one; and he believed that it was the first of the kind ever brought forward in this city, and that he trusted it would be the last; and it would hereafter be known that the Police authorities will always be ready to do their duty to society, by detecting crime and preventing it at all hazards. The present case was one that could be disposed of in a very few words. It is not the duty of the Magistrate to try, but to see if there is sufficient legal evidence to send the party to trial. The question now is, whether the evidence, as it now stands, is sufficient to create a strong, probable, or even conflicting case of guilt. He was clearly of opinion that such a case had been made out; therefore he ordered that Francis Tumblety be committed to gaol to stand his trial at the ensuing term at the Court of Queen's Bench. As to the question of bail, he was prepared for that. One of the best works on the duties of magistrates is Saunders and it states - "It must not be forgotten by justices, that the only purpose to be served by a committal to gaol, is that of securing the personal presence of the accused at trial. If, therefore, the justices feel satisfied that by admitting the accused to bail, his appearance to take his trial will not be perilled, their duty to take bail is obvious."
In the present case His Honor said Dr. Tumblety was a stranger in the province; therefore his appearance to stand his trial would, he considered, be perilled if he was admitted to bail. The conclusion he had come to was, that he would not be doing his duty to receive bail, -- of course there was a higher tribunal to which they could apply.
The prisoner was then committed to gaol.
Mr. Devlin, counsel for Dr. Tumblety, presented a petition to the Judges of the Court of Queen's Bench for a writ of habeas corpus, for the admission of his client to bail. The judges have received the petition, and after having taken communication of the depositions, will render their judgment at 10 o'clock on Monday morning.