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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Hopley, R. v [1860] EW Misc J73 (11 January 1860) URL: http://www.bailii.org/ew/cases/Misc/1860/J73.html Cite as: (1860) 2 F&F 202, [1860] EW Misc J73, 175 ER 1024

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IN THE CIRCUIT COURT
Summer Assizes, 1860

		1860

The prisoner was a schoolmaster at Eastbourne, and in 1859 the deceased, a boy aged thirteen or fourteen, had been entrusted to his charge. He was a dull boy. At Christmas there were some complaints of chastisement inflicted on him by the prisoner. He returned to school, however, after the holidays, and again at Easter on the 16th April.

On the 18th April the prisoner wrote to the father, stating that the boy was obstinate, and that, were he his own child, he should, after warning him (as he had done), subdue his obstinacy by chastising him severely; that, if necessary, he should do it again and again, and " continue it at intervals, even if he held out for hours." The letter concluded thus: "I cannot be blind to the fact that at Christmas I ran a serious risk of having my character damaged for life, and I do not think it right to run that risk again, I therefore write this to know your wishes."

On the 20th April the father wrote in reply, "I do not wish to interfere with your plan."

There was no evidence that the boy had been guilty of any obstinacy after Easter, and the prisoner had, just before Easter, reported favourably of him.

On the night of the next day, Saturday the 21st April, the prisoner took the boy into a room down stairs, and beat him for about two hours, between ten and twelve, with a thick stick; using also a skipping rope.

About midnight the prisoner was heard dragging or pushing the boy up stairs to his bedroom, and there he beat him again, until about half-past twelve, when the beating and crying suddenly stopped.

From the evidence of the servants (who were the principal witnesses as to all this) it appeared that the prisoner and his wife were for some time going up and down stairs engaged in washing out the stains of blood down stairs and up stairs, but that some of these stains were discerned next morning.

Early next morning (about seven) the prisoner said he had found the boy dead, and almost "stiffening." He then went for a surgeon, who saw only the face of the boy.

A subsequent examination showed that the thighs and other parts of the body were covered with bruises, and the medical evidence was that there had been profuse bleeding and extravasation of blood caused by excessive and protracted beating, and that the immediate cause of death was exhaustion arising therefrom.

The medical witnesses also stated that, upon the evidence, coupled with the prisoner's statement, the boy, at seven o'clock in the morning, must have been dead about six hours, so that their evidence went to show that he died about half-past twelve, when the beating was heard suddenly to cease.

The prisoner had not avowed the beating until its effects had been discovered by the post mortem examination, and had sent the body home so closely wrapped up, that the bruises were not detected until the coverings were removed in consequence of rumours prevailing. There was no post mortem examination of the body prior to the inquest, at which the surgeon, who had seen only the boy's face, was examined, and the prisoner, who suggested that the boy had died of disease of the heart. The verdict of the coroner's jury, therefore, did not inculpate him.

Parry, Serjt., put in, for the prosecution, a printed slip from a newspaper, containing a report of the inquest, pasted on paper, with corrections and alterations in the prisoner's hand, sent by him to the prosecutor on the 27th April, and which did not mention the beating. He examined the prosecutor as to a conversation with the prisoner of the 24th April, at which the beating was not mentioned.

Ballantine, Serjt., in cross-examining, asked as to a conversation with the prisoner after the newspaper report had appeared, in which the prisoner desired to take the prosecutor to one Clark, who was on the jury, to hear his account of an explanation which it was suggested the prisoner had given, but,

Parry, Serjt., objected that Clark should be called; and,

Cockburn, C. J., was of that opinion. It is not part of the same conversation as that of which the prosecution gave evidence.

Parry, Serjt., in re-examining the prosecutor, asked as to a letter which the prisoner had written to the father at Christmas, complaining of the complaints made as to his chastisement of the boy, and called for the letter of the father (to which that was an answer), notice to produce it having been given and proved.

Ballantine, Serjt., did not produce it.

Parry, Serjt., produced a copy in the father's handwriting, but the prosecutor could not prove its correctness, and knew nothing of the original except from the father^[1].

Ballantine, Serjt., objected, and Parry, Serjt., did not press the evidence^[2]. The stick was produced in Court, and appeared at one end an inch thick; at the other end it was edged with brass about the circumference of a sixpence, and there were holes in the shins of the deceased corresponding therewith, and which the medical witnesses thought must have been produced by poking therewith.

The prisoner called no witnesses^[3], except as to character.

Cockburn, C. J. (to the jury): By the law of England, a parent or a schoolmaster (who for this purpose represents the parent and has the parental authority delegated to him), may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate and excessive in its nature or degree, or if it be protracted beyond the child's powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to the law, and if death ensues it will be manslaughter^[4]. The first question is, whether the death was caused by the beating inflicted? Secondly, was it excessive in degree? Now, there can be no doubt as to the first point, that the boy's death was occasioned by the beating received at the hands of the prisoner.

Then as to the second point, whether the beating was excessive, the question can surely be only answered in one way; for had the correction been moderate it is contrary to common experience that it should have resulted in death. One can scarce conceive of moderate chastisement resulting in death, except under circumstances of a very peculiar character, or in the case of a child with an unusual organization. We have, however, here positive evidence as to the nature, amount and degree of punishment inflicted. It was inflicted with a thick stick; it was continued down stairs for two hours and up stairs for half an hour longer, and according to the medical evidence until the boy actually died. That question, however, it is not material now to determine, viz., whether the boy did not actually die under the beating so protracted. For whether he did so die or not, if he died from the effects of the beating then or subsequently, and it was excessive, the prisoner is guilty of manslaughter^[5]. The evidence to my mind is all one way, that the boy died at the time, and under the prisoner's hand, but that upon this charge does not matter. The stick with which the punishment was inflicted was not (though that, may be, is matter for you to determine)^[6] an instrument fitted for the purpose of chastisement. And the beating was manifestly protracted far beyond the bounds of reason, moderation or humanity. If you think that it was so, and caused the death of the boy, find the prisoner guilty.

It is true that the father authorized the chastisement, but he did not, and no law could, authorize an excessive chastisement.

There can be no doubt that the prisoner thought the boy obstinate, but that did not excuse extreme severity and excessive punishment.

The prisoner's motives, however, upon this charge matter not. If his excessive violence caused the death find him guilty.

Verdict, guilty.

Sentence, four years' penal servitude.

Note 1   There are no degrees in secondary evidence, so that the copy was not necessary;Doe d. Gilbert v. Ross, 7 M. & W. 102. But the difficulty was that oral secondary evidence could not be given, as the witness had not seen the letter.    [Back]

Note 2   The charge being for manslaughter, not murder, as to which it would have been material to show that the complaints at Christmas had rankled in the prisoner's mind, and inspired ill-will towards the deceased.    [Back]

Note 3   There was therefore, strictly speaking, no evidence that the boy had been guilty of any obstinacy at all, save the prisoner's own letter; which would not have been evidence in his own favour. However, the prosecutor having only made a charge of manslaughter, of course it did not become material to dispute that there was lawful cause for punishment; and therefore the prisoner's letter, so representing, was put in, and it was taken that his statements therein made were true. It is necessary to notice this, lest it should be supposed that excessive beating, resulting in death, without evidence of lawful cause or excuse, had been held merely manslaughter. It was taken as if there had been lawful cause.     [Back]

Note 4   That is (as the context implies), at least manslaughter. Vide supra, et vide post.    [Back]

Note 5   That is, at least guilty of manslaughter. The language of the C. J. implied that, on another charge, the question, whether the prisoner went on beating until the boy died, might be material.    [Back]

Note 6   The instrument, being in its own nature not unfit, the mere size or weight might be for the jury. But if it had been in its own kind and nature utterly unfit -as, if it had been the poker- it would have been for the Court as a matter of law.    [Back]