A. Yes. Mrs. Burke followed us up to the street. We met Mrs. Hare; she
asked us what we were quarrelling about, and desired us to go into
a house and settle our dispute. We did go, and shortly after I went
straight to the Police.
By the COURT.
Q. When you saw the body, did you know it to be the woman who was there
the night before? A. Yes; it was quite naked. There was blood upon the
mouth.
_Cross-Examined._
Q. What hour was it when you left Burke’s house first, on the evening
of the 31st? A. About five in the evening.
Q. What hour did Burke come for you in the morning? A. I think about
seven.
Q. Was Burke in Hare’s at supper? A. No; but Mrs. Burke was. The Hares
had left before Burke came.
GEORGE M‘CULLOCH _Examined_.
Q. You are a porter? A. Yes.
Q. Did the prisoner Burke come to you to carry a parcel for him at the
end of October last? A. Yes. Q. Where did you go first? A. To Burke’s
house. We went into his room, where we got a box like a tea-box; he
took something in a sheet, and put it into the box. Q. Was it like the
shape of a human body? A. I think it was. Q. Had you no doubt it was a
body? A. No. Q. Did you assist? A. No; but when the body was putting
in there was some hair which I pushed in. Q. When the body was putting
in the box was there violence used? A. Yes. Q. Was there another man
there? A. Yes, of the name of Hare.
Q. What became of the sheet? A. It was left where the body was carried
to. (_The witness was shown a box._)
Q. Was that the box? A. The very box.
Q. Was the hair long? A. No.
Q. Did you carry the box? A. Yes.
Q. Did the prisoner follow you? A. Yes. He told me to go towards the
High School Wynd.
Q. Did you go? A. Yes.
Q. Did any person join you? A. Yes, the prisoner and his wife, and Hare
and his wife.
Q. Then you went to Surgeons’ Square? A. Yes, and took the box off my
back. Q. What hour was it? A. It was half-past six.
Q. Where did you go after? A. To Newington.
Q. Who went with you? A. The prisoner, Hare, and their wives.
Q. Did they separate from their husbands? A. Yes.
Q. You saw a person of the name of Paterson?
A. Yes. We went into a public-house, and he shared the money between
the prisoner and Hare, and gave me five shillings for my trouble. When
we came out the women were gone.
JOHN FISHER, _Examined_.
Q. You are a police officer? A. Yes.
Q. Do you remember a person coming to the office? A. Yes.
Q. Where did you go with him? A. To William Burke’s.
Q. What did you go there for? A. To make inquiries, as I heard the
body was removed; I met Burke and M‘Dougal on the stair, I bade them
come down, I wished to speak with them. I asked Burke what had become
of his lodgers? He said, there is one (pointing to Gray) and that he
turned them out for their bad conduct. I then asked what became of the
little woman that was there on Friday? He said she left at seven in the
morning. I asked him if any person saw her go away? He said, William
Hare. I asked if any one else saw her go? He then looked insolent, and
said, many saw her go. I saw marks of blood on the bed, and asked how
they came there. M‘Dougal said a woman had lain in there a fortnight
ago. She said she knew where to find the little woman, she lived in the
Pleasance. She saw her that night at the Vennel, and she apologized for
her bad conduct. I asked her what time she left, and she said at seven
o’clock at night. I then decided on taking them to the office, which I
did, on a pretext that it was all a matter of spite against them, and
if they would come to the police office, it would be all cleared up.
Q. Did you return to Burke’s house that night? A. Yes, with the
Superintendant and Dr. Black.
Q. Did you examine the house? A. Yes.
Q. You found a striped bed-gown on the bed. A. Yes.
Q Was that it?--(_The bed-gown was exhibited._) A. Yes.
Q. Did you find any blood? A. Yes, amongst the straw.
Q. Did it appear to have been long there? A. No.
Q. Next morning you went to Dr. Knox’s with Paterson? A. Yes.
Q. And what did you find?
A. The body of an old woman quite naked. We sent for Gray to see if he
knew the body, and he identified it. We afterwards returned in the day
and removed the body to the police-office.
Q. Was the body shown to the prisoners? A. Yes.
Q. They denied all knowledge of having seen it, dead or alive? A. Yes.
Q. Did you go to Burke’s house again? A. Yes, and found an old gown and
a bag.
Q. Were these the articles? (_They were exhibited._) A. Yes.
Q. Was the body after examined? A. Yes, by Dr. Black, Dr. Christison,
and Dr. Newbigging.
_Cross-Examined._
Q. Did Hare deny all knowledge of the bodies? A. Yes.
Q. And his wife? A. Yes.
WILLIAM HARE (or HAIRE) _Examined_.
WILLIAM HARE (or HAIRE) a _socius criminis_, was now brought forward,
and his entrance into the witness’s box produced a great sensation in
the Court. He was first sworn according to the form used in Scotland,
and warned in the most pointed manner to speak the truth, for if he was
found to deviate the least from it, the most condign punishment would
await him.
Q. You are a Roman Catholic? A. Yes.
Q. Would you wish to be sworn in any other way? A. I never took an oath
before, I believe it is all one way.
(_He was then sworn upon a New Testament, with his right hand on the
Cross._)
Q. How long have you been in this country? A. Ten years.
Q. How long have you been acquainted with the prisoners? A. About
twelve months.
Q. Is your house near Burke’s? A. Yes.
Q. You remember last Halloween? A. Yes.
Q. Were you drinking in a public-house with Burke? A. Yes.
Q. What did he say? A. He asked me to go down to his house to see what
a _shot_ he had got for the Doctors. He said he got an old woman off
the street, and she would make a good _shot_ for the Doctors. He told
me to go down to the house and see if they were drinking, for he did
not like to go.
Q. What did you understand by a shot for the Doctors?
A. That he was going to murder her.
Q. Did you go down? A. Yes, I found a man and a woman and Nelly
M‘Dougal, and the old woman washing her short-gown.
Q. Was the strange man’s name Gray? A. Yes.
Q. What colour was the short-gown? A. Reddish striped.
Q. Is that it? (_The gown was exhibited._) A. Yes.
Q. Did you remain long there? A. Five minutes, and then went home.
Q. Was you in Connaway’s after that? A. Yes, between eight and nine
o’clock.
Q. Who was at Connaway’s? A. There was William Burke and Broggan, and
another chap I did not know, and my wife, John Connaway, and Nelly
M‘Dougal. The little old woman was left at Connaway’s, where they had
some drink.
Q. Had you some? A. Yes, we then went to Burke’s, and Burke and his
wife and the old woman came in; we were all hearty.
Q. Did you then expect the old woman was to be murdered? A. No.
Q. You had a quarrel with Burke? A. Yes, he struck me on the mouth,
and I struck him again, the woman came between us, he pushed me on the
bed twice and I remained on the bed; the old woman got up and wished
Burke to sit down, as he treated her well; she said she did not wish to
see him ill used; she run out before this to the passage and cried out
either murder or police.
Q. How was she brought back again? A. It was Nelly M‘Dougal that
brought her back both times.
Q. When you were struggling, did you knock the old woman down? A. Yes,
and she lay on her back, so drunk she could not get up, she cried to
Burke to quit.
Q. Did he quit you? A. Yes.
Q. What did he do then? A. He got on the old woman with his breast on
her head, and kept in her breath, she gave a kind of cry and moaned a
little after the first cry.
Q. How did he apply his hands to her? A. He put one hand on her nose
and the other under her chin, and stopped her breath, he continued this
for ten or fifteen minutes.
Q. Did he say any thing while this was going on?
A. No, he then got up and put his hand across her mouth and kept it
there three or four minutes; she appeared quite dead then.
Q. Was you looking on all this while? A. I was sitting on the chair.
Q. Did he strip the body? A. Yes, and put the clothes under the bed, he
then doubled up the body, and put the straw on top of her near the head
of the bed.
Q. While you were sitting on the chair and he was murdering, where
was your wife and M‘Dougal? A. When they heard the first screech they
leaped out of bed and run into the passage, and did not come in until
the body was put away.
Q. Where were you? A. I was sitting at the head of the bed when they
both lay down and covered themselves with the quilt.
Q. Did you see any blood at that time? A. No.
Q. Did any body come to the door when the woman cried in the passage?
A. No.
Q. Before the women sprung up was Burke long on the woman? A. A minute
or two.
Q. Did any one go to Burke to try and save the woman?
A. No one.
Q. Who went out first? A. My wife.
Q. And M‘Dougal followed after? A. Yes.
Q. Could any one have prevented Burke without your seeing them? A. No.
Q. Did the women make any inquiries when they came into the room? A.
No, they both went to bed. Then Burke went out after the woman was laid
aside, and stopped out ten minutes.
Q. Did any body come back with him? A. Yes, the Doctor’s man, Paterson.
Q. Did Burke say any thing to the Doctor’s man?
A. Yes, he wanted him to look at the body. Paterson said it would do
very well, to put it in a box; he would not look at it. I don’t know
when Paterson went away, I fell asleep.
Q. Were you tipsy? A. I knew what I was about.
Q. What time did you awake? A. Between six and seven in the morning. I
was sleeping on the chair, with my head on the bed; the two women and
John Broggan were in bed; he lay next his aunt, Nelly M‘Dougal. Burke
was sitting at the fire. After this I went home, and found Gray and his
wife at my house; they had had a bed there that night.
Q. Did Burke come to your house the next morning?
A. He did. We went to get our morning; he asked me to go to Surgeons’
Square to get a box.
Q. Did you get a box there? A. No. Burke then said he had one bespoke
from Mr. Rymer’s shop-boy. We got a box, and the porter brought it in.
Burke was not in then. We left the box, and stopped at the back door
until Burke came. When he came he asked me what I was doing, that I
did not get it into the box. He then went in, and drew the body from
under the bed, and the porter helped to put it in; there was some hair
hanging out, and the porter put it in; and said, it was bad to let it
hang out. The porter then carried it away to Surgeons’ Square. It was
roped. (That box in Court is it, or like it.) I went with the porter,
and Burke went for the Doctor’s man. They came to Surgeons’ Square, and
we went in with the box. We put the box in a cellar, and then we went
to Newington to the Doctor. Mr. Paterson went in, and he afterwards
came out and asked if we would go to a public-house, he had money for
us. We saw our wives following us, but they did not come into the
house. Paterson gave the porter 5s. and each of us L.2, 7s. 6d. We were
to have five pounds more on Monday. I saw nothing very particular until
I was taken up.
Cross-examined by Mr. COCKBURN.
Q. You say you have been ten years in Edinburgh? A. Yes.
Q. How have you been engaged?
A. I have been a labourer, and sometimes employed in selling fish with
a cart and horse.
Q. Have you been engaged in supplying bodies to the Doctors? A. Yes.
Q. Have you been concerned in supplying the Doctors with subjects on
other occasions than that you have mentioned?
The Lord Advocate objected to the question.
Mr. COCKBURN.--I hold that I am entitled to test this _Gentleman’s_
credibility with the Jury, and with that view I shall endeavour to
make him confess such acts as will make his evidence go for nothing.
I purpose to ask him if he was concerned in any other _murder_ except
this one.
LORD ADVOCATE thought the Dean of Faculty had agreed to confine himself
to this case.
LORD MEADOWBANK thought that such a line of conduct could not be
pursued. The question was neither a fit nor proper one.
Mr. COCKBURN.--In general, evidence is adduced because it is entitled
or presumed to be entitled to credit. Now, it is monstrous to suppose
that I should not be allowed to shake the credit of a human being
in respect to his evidence. (He then quoted a case lately tried in
England, where a witness in a similar circumstance was examined and
acknowledged that he had been guilty of the most atrocious crimes; in
consequence of which his evidence was totally discredited.)
Mr. ALISON replied, the law of England was in no point more opposed to
the law of Scotland than in regard to evidence. A witness here could
not be called on to answer for his whole life and conversation. The
utmost license was allowed in England in cross-examination, but it is
contrary to the uniform and fundamental law of Scotland.
DEAN OF FACULTY.--I completely agree with my Learned Friend. Our object
is to discredit, not to disqualify the witness. We wish to propose a
question to try the veracity of this witness. The witness was warned
that he was standing on his oath, being peculiarly situated, but it may
happen in most cases that he will answer it, and answer falsely. If he
answers truly, it will be for his credit; if falsely, it will then be
for the benefit of my client.
LORD MEADOWBANK.--I regret having stated the impression made upon my
mind by the bare announcement of the question proposed to be put to
the witness, because I should most assuredly have rather, in a matter
of this vast importance, have desired to obtain every light that could
have been thrown upon it before I ventured to deliver my judgment
regarding it. But perhaps my having done so had only the effect of my
attention being more anxiously called to every word that dropt from my
brethren at the bar, and if I were satisfied that if any thing that was
suggested by them had the effect of shaking the opinion which occurred
to me at first, nothing that I stated before could have prevented my
honestly and frankly avowing it. I have, however, been confirmed in
that opinion by finding that notwithstanding all the ingenuity of
my learned brethren, they have said so little on the subject, and
that they have been unable to show one single precedent in favour of
their argument, except that which has been obtained from the law of
England. Now, I for one throw the law of England altogether out of
the question. It is, I believe, in matters of this kind diametrically
opposite to ours. That law holds, that a witness has no protection
from having been examined by the Public Prosecutor, on a criminal
trial. We hold, that he has. It is quite absurd, therefore, to dream
of drawing a precedent, which is to guide your Lordships, from the
law of England. But even our law goes no farther than to protect
witnesses from being subject to prosecution on account of matter
immediately connected with the subject of the trial in the course of
which they are examined. I understand it, therefore, to be admitted
that, if the question proposed were admitted by your Lordships, the
witness must be told that he is not bound to answer it, because it is
beyond the competency of this Court to afford protection against being
afterwards questioned for the perpetration of crimes which do not form
the proper subject of inquiry in the present investigation. But I
have always understood that the law of Scotland has gone a great deal
further--that it allows no question to be put which a witness may not
competently answer, and which, if answered, must not be sent to the
Jury as a matter of evidence. Now, in the first place, I admit that
it is quite competent for the prisoner to put any question relative
to the matters at issue by which he apprehends that the credibility
of the witnesses for the Crown, may, if answered, by possibility be
shaken. The oath taken by the witness, binds him to speak the truth,
and the whole truth; but that obligation goes no further than it
refers to the matter before the Court. It neither does, nor has it
ever been held, to bind him to speak to matters relative to which he
has not been called legally to give evidence. I apprehend, therefore,
that even the oath which has been imposed upon the witness, is not
obligatory upon him to speak to matters _not immediately_ connected
with the subject of this trial--and, in fact, such was the opinion of
the Counsel for the prisoners; for, upon their application, the witness
was particularly warned that he was only required to speak the truth,
and the whole truth, relative to the third charge in this indictment.
I have always understood, however, that no question could be put,
upon cross-examination, to a witness in this country, which would, if
answered, have the effect of rendering him in truth inadmissible.
All questions having that effect must be put as preliminary, and
after the questions put to all witnesses by your Lordships before the
examination commences. In that respect, very likely, we differ from
the law of England; but, for the reasons assigned by Mr. Hume in the
passages read by Mr. Alison, I am not inclined to think that the rules
of our law are inferior, or less effectual for the administration of
justice. The object of our law has always been to get at the truth,
and I suspect that is best to be obtained by preventing witnesses
being harassed in the way that would result from such questions as
the present being held to be admissible. But further still, suppose,
in the second place, that the witness answers the question that has
been put in the affirmative, and depones that he has been present at
more murders than the one in question, what is to be the result? Is
the Lord Advocate upon the re-examination to ask him at what murders
he has been present, and who was concerned in those murders; or to go
into an examination of all the matters connected with those cases?
If he is, we may be involved in an inquiry into the circumstances
connected with the other murders in this indictment, which are not now
the subject of trial, and which your Lordships, by your interlocutor,
have precluded from being the subject of trial. I cannot think that
such can be your Lordships’ intention: yet the Court must be prepared
either to go this length or not, before allowing a question to be put
which must open up such a field of inquiry, for if the prisoner is
entitled to put the one question, it must follow that the prosecutor
is entitled to put the other, and if you do permit such an inquiry,
you must be prepared to send the answers so given, and the evidence so
arising, to the jury for their consideration. And what would be the
consequence? By the evidence thence arising, and the suspicions thence
created, the prisoners might be convicted upon matters not at issue in
this indictment. Nor is it enough to say that this has been occasioned
by the prisoner himself; for the law of this country interposes to
protect a prisoner from his own mistakes--it lays down rules by which,
in all cases, protection shall be afforded against either accident or
error; and as I conceive it would be highly erroneous to send such
matters to a jury, and yet that we are entitled to permit no questions
to be put, the answers to which must not be sent to the jury, I think,
this question cannot be admitted. But I set out with saying, that I do
not think any question can be sustained by your Lordships, which, if
answered in the affirmative, would disqualify a witness. Thus, suppose
that the question put were, Have you committed ten acts of perjury--and
the answer were in the affirmative, what is to be the result?--Your
Lordship must tell the jury either that the witness’s answer is true,
or that it is false. If true, must it not also be added that he cannot
be believed upon his oath; and if it appears not to be true, then he
is equally incredible. By admitting such questions, therefore, the
necessary result is that you put it in the power of the witness to
disqualify himself; and that, I have invariably understood, I can
solemnly assure your Lordships, to have been a principle reprobated by
the law of this country.
The LORD JUSTICE CLERK thought that the question might be put, but that
the witness should be cautioned that he was not bound to criminate
himself, for if he answered the question the Court could not protect
him.
LORD MACKENZIE thought the question might be put. The witness being
warned that he is not bound to criminate himself, and told that he
has no protection from the Court, but for the crime now before it.
The admission of his having been guilty of a secret crime could not
disqualify him. He had yet seen no sufficient authorities to shake that
opinion.
The LORD JUSTICE CLERK agreed with Lord Mackenzie, although he thought
with Lord Meadowbank that it was the “most extraordinary question he
ever heard;” but the case being an extraordinary one, allowance must be
made.
The LORD ADVOCATE wished to know in what situation he was placed. Was
he allowed to ask him, if he confessed--“Of what murders were you
guilty?”
Mr. COCKBURN.--We put that question, and the Lord Advocate is entitled
to put what other he chooses. I cannot state the thing more generally.
We intend to object to no question the Lord Advocate may choose to ask.
* * * * *
_Hare recalled._
Q. You mentioned when you was last here, that you assisted in taking
the bodies to Surgeons’ Square?
A. I never was concerned in furnishing _none_, but I saw them do it.
LORD JUSTICE CLERK.--You are not bound to answer the question about to
be put.
Mr. COCKBURN.--I am going to put some questions to you, and you need
not answer them if you don’t choose.
Q. How often have you carried dead bodies? A. I won’t answer it.
Q. Have you ever been concerned in any other murder?
A. I won’t answer that.
Q. Was there a murder committed in your house on the 8th October last?
A. I won’t answer that.
Q. When Burke said he had got a shot for the Doctors, how did you know
what he meant by a shot?
A. I heard it often before.
Q. Did you know it meant murder, then? A. Yes.
Q. How did you know it?
A. He told me he would murder her.
Q. Had you any notion that mischief would happen that night you were
dancing? A. I could not say.
Q. When did you suspect there was going to be mischief?
A. When I saw him on the top of her.
Q. Did you see the body of the woman at the Police Office?
A. Yes.
Q. Did you deny there ever having seen the body before?
A. I denied it.
Q. How soon was it after her death you saw her at the Police Office? A.
I saw a body there on Saturday or Sunday.
Q. You have been acquainted with Burke long? A. Yes.
Q. Have you received any money before from Dr. Knox?
A. No.
Q. Did you ever receive any from his assistants?
A. Burke did, and he gave it me.
Q. Did you ever receive any? A. No.
Q. Who received the money? A. Burke.
Q. Are you positive that it was five pounds that was to be received on
Monday? A. Yes.
Q. Who was it paid the man? A. I believe Burke did.
Q. Burke paid you? A. Yes, he threw two pounds to me, and seven
shillings in silver. Paterson put two pounds in one parcel, and two in
another, and halved the silver and Burke shoved it over to me.
Q. Had you ever any quarrel with Burke about money? A. No.
Q. You told us that the old woman went out into the passage and cried,
Police and Murder? A. Yes.
Q. You say you shoved her down over a stool? A. Yes.
Q. And she lay on her back? A. Yes.
Q. At the time that Burke was on the top of the woman, did you hear her
screech? A. Yes.
Q. It could be heard a good bit off? A. Yes.
Q. You say that Broggan was in bed in the morning,--did you see him
come in? A. No.
Q. Did you sit in that chair and see Burke for ten minutes killing the
woman, and offer her no assistance? A. Yes.
Q. You sat by calmly and saw the murder done? A. Yes.
Q. Did you give any information the next day? A. No.
Q. But you went to dispose of the body, and received money for it? A.
Yes.
Q. And the next day you denied all knowledge of the body? A. Yes.
MRS. HAIRE or HARE _Examined_.
_This witness was sworn and solemnly admonished by_ LORD
MEADOWBANK _to speak the truth, after which she was examined by
the_ LORD ADVOCATE.
Q. You are the wife of William Hare that was here just now? A. Yes.
Q. Do you remember last Halloween night? A. Yes.
Q. Did two persons sleep in your house that night?
A. Yes.
Q. Why did they do so? A. Burke asked me to give them a bed there in
the course of the day.
Q. Did you go out that night in search of your husband?
A. Yes, I found him in John Connaway’s.
Q. Who was there at the same time? A. Connaway and his wife.
Q. Was Burke there? A. I don’t recollect.
Q. Had you spirits there? A. Yes.
Q. Do you recollect seeing an old woman there? A. Not that I recollect.
I stopped there until my husband rose, and then we went into Burke’s
house with M‘Dougal.
Q. Was Burke there? A. No. He came in soon after.
Q. Was the old woman there? A. Yes, she was there before.