*134 Walter Gibbins and Edith Rose Proctor

Court of Criminal Appeal

22 April 1918

(1919) 13 Cr. App. R. 134

Mr. Justice Darling , Mr. Justice McCardie and Mr. Justice Salter

April 22, 1918

The discretion of a judge at the trial whether defendants jointly indicted should be tried separately must be judicially exercised. The head-note to Lee and Parkes, above, p. 39, is too widely stated.

The neglect by a father of a child living with him may be so great, even though he provides the funds for the child’s maintenance, as to amount to murder, if through neglect the child dies. A woman living with a man in such circumstances, if she has accepted charge of the child, may also be guilty of murder.

These were appeals against conviction on matters of law. Appellants were convicted, on the 18th March, 1918, at the Leeds Assizes, before Roche J., of murder, and were sentenced to death.

R. A. Bateman for appellant Gibbins (under s. 10 of the Criminal Appeal Act ), who was not present. The appellants were convicted of the murder of Gibbins’s daughter Nelly, a girl of seven, it being alleged that she died of starvation as the result of a long course of cruelty and neglect at the hands of both appellants. Before the trial opened application was made on behalf of both prisoners that they should be tried separately; this application was refused, and I submit that Gibbins’s trial was prejudiced thereby, especially as this was a case of mutual recrimination, each prisoner seeking to put the blame on the other: Lee and Parkes, 13 Cr. App. R. 39, 1917 .

[ Darling J.: The head-note there goes beyond the decision of the Court, which laid down no rule of general application.]

Moreover, evidence of statements and conversations was given *135 which were admissible against one appellant and not against the other.

[ Darling J.: The matter is one for the discretion of the judge and unless the discretion is not exercised judicially this Court will not interfere: Yousry, 11 Cr. App. R. 13, 1914 .]

The evidence was not sufficient to support a verdict of murder; it should have been manslaughter only. Gibbins was in regular employment earning good wages, and he gave evidence that he gave the whole of them to Proctor. It was his duty to provide the money; it was hers to provide food. The child was not hers, but she was living with Gibbins, and no doubt had assumed some duty towards the deceased child, which might justify a verdict of murder against her; seeSaunders, 7 C. & P. 277, 1836 . Gibbins was out at work all day, and was told that the child was all right. The prosecution must prove that he knew of the child’s condition, and, to justify a verdict of murder, that he took an active part. On the evidence the verdict should have been guilty of manslaughter: Bubb and Hook, 4 Cox C. C. 457, 1850 . No intent to kill was proved.

[ McCardie J. referred to Conde, 10 Cox C. C. 547, 1867 .]

A photograph of the deceased child was put in evidence which was taken after the child had been buried for a month. It was said that there had been no decomposition, but the evidence was most prejudicial to the prisoners, and therefore should have been excluded: Christie, 1914, A. C. 545; 83 L. J. K. B. 1097; 111 L. T. 220; 78 J. P. 321; 24 Cox C. C. 249; 58 S. J. 515; 30 T. L. R. 471; 10 Cr. App. R. 141 .

F. J. O. Coddington for appellant Proctor (under s. 10 of the Criminal Appeal Act ), who was present. A separate trial was especially necessary in the interests of Proctor, and the refusal to grant a separate trial amounted to a miscarriage of justice.

The judge misdirected the jury on the distinction between murder and manslaughter. There must be a positive withholding of food which is available to found a verdict of murder here. If money is given and not food, a verdict of murder would only be *136 justified where the money is ear-marked for the particular person. The legal obligation to maintain is on the husband, and therefore Proctor could not be convicted of manslaughter: Forsyth , Russell on Crimes, 7th ed., 671, in 1899. She was de facto the wife of Gibbins, and in such cases the wife has been held to be the servant of the husband. Unless she withheld food actually supplied she cannot be convicted of manslaughter, and probably not of murder: Squire , 1 Russ. Cr., 7th ed., 668, 670, in 1799; Saunders , above; Instan, 1893, 1 Q. B. 450; 62 L. J. M. C. 86; 5 R. 248; 68 L. T. 420; 41 W. R. 368; 17 Cox C. C. 602; 57 J. P. 282; C. C. R. ; Lee and Parkes , above.

Shortt, K.C. and Sir Robert Aske for the Crown, were not called upon.

Darling J.:

The two appellants were indicted and tried together for the wilful murder of Nelly Gibbins, the daughter of Gibbins. The facts were that Gibbins’s wife had left him, and he was living in adultery with Proctor. There were several children, one of whom was the child of Proctor, in the house. He earned good wages, which he brought home and gave to Proctor to maintain the house and those in it. There is no evidence that there was not enough to keep them all in health. And all were looked after except one, namely Nelly, who was starved to death. Her organs were healthy, and there was no reason why she should have died if she had been supplied with food. She was kept upstairs apart from the others, and there was evidence that Proctor hated her and cursed her, from which the jury could infer that she had a very strong interest in her death.

When they were put on their trial both counsel applied that the prisoners should be tried separately. Thereupon Roche J. said, in answer to the suggestion that it would be impossible to separate the evidence against the two, “I have no doubt it will be done, and can be done without any detriment.” The trial proceeded after that. The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly indicted should be tried together or separately. But the judge must exercise his discretion judicially. If he has done so this Court will not interfere, but that is subject to this qualification. If it appeared to this Court that a miscarriage of justice had resulted *137 from the prisoners being tried together it would quash the conviction. Here it is clear that Roche J. exercised his discretion; he separated the defences carefully, pointing out what was evidence against one prisoner, and not against the other. It is not enough to say that counsel could have defended them more easily if they had been tried separately. There is no ground for thinking that there was any miscarriage of justice. There may have been many things made clear to the jury which would not have been made clear if the prosecution had been embarrassed by having to deal with the two cases separately. The whole story was before the jury of what went on in the house where the two appellants lived together. There is no ground for thinking that either of them was improperly prejudiced by their being tried together.

Several small criticisms have been made which it is not necessary to consider, since there is nothing to lead us to suppose that the verdict was arrived at wrongly in consequence of these matters. There remains the question whether the judge misdirected the jury on a point of law. Had he done so on a really material point we should quash the conviction, unless it came within the proviso to s. 4 (1) . But the misdirection here complained of is on a crucial matter, where he told the jury what they must find in order to convict either prisoner of murder. He said, “The charge against the prisoners is, in the first place, that they killed this child Nelly, or caused her death, by malice aforethought. That means they intended she should die and acted so as to produce that result.” If that is a misdirection it is one in favour of the prisoners. “In dealing with that you will of course remember, and it is my duty to tell you, that very rarely will people say when they do such a thing that they intended to produce such a result. Sometimes they do say that they killed a person and intended to do so, but rarely, and as a rule you have to judge of persons’ intentions from their acts, they being reasonable persons, and there is no suggestion here at all that either of these prisoners was in any way insane, being reasonable persons you have to deal with, you must judge of them as understanding the nature of the act they are doing, and if you think that one or other of those prisoners wilfully and intentionally withheld food from that child so as to cause her to weaken and to cause her grievous bodily injury, as the result of which she died, it is not necessary for you to find that she intended or he intended to kill the child *138 then and there. It is enough if you find that he or she intended to set up such a set of facts by withholding food or anything as would in the ordinary course of nature lead gradually but surely to her death.” In our opinion that direction simply fulfils the conditions which a judge should observe in directing the jury in such a case as this.

There are other places where this is alluded to; for instance, where the judge said: “As she could see it,” that is Nelly’s condition, “and as no steps were taken by her it is consistent, and only consistent—that is the submission—with the intention to work most grievous bodily harm to this child, and to bring about her death. If you think so, gentlemen, serious as it is, it will be your duty to find a verdict of murder.” Now for this there is ample authority. It is sufficient to refer to Bubb and Hook , where Williams J. said: “It remains for me to explain to what extent she is responsible. If the omission or neglect to perform the duty was malicious, then the indictment would be supported, and the crime of murder would be made out against the prisoner; but if the omission or neglect were simply culpable, but not arising from a malicious motive on the part of the prisoner, then, though it would be your duty to find her guilty, it should be of manslaughter only. And here it becomes necessary to explain what is meant by the expression malicious, which is thus used. If the omission to provide necessary food or raiment was accompanied with an intention to cause the death of the child, or to cause some serious bodily injury to it, then it would be malicious in the sense imputed by this indictment, and in a case of this kind it is difficult, if not impossible, to understand how a person who contemplated doing serious bodily injury to the child by the deprivation of food, could have meditated anything else than causing its death.” The word used is “contemplated,” but what has to be proved is an intention to do grievous bodily injury. In our opinion the judge left the question correctly to the jury, and there is no ground for interfering with the convictions for those reasons.

It has been said that there ought not to have been a finding of guilty of murder against Gibbins. The Court agrees that the evidence was less against Gibbins than Proctor, Gibbins gave her money, and is far as we can see it was sufficient to provide for the wants of themselves and all the children. But he lived in the house and the child was his own, a little girl of seven, and *139 he grossly neglected the child. He must have known what her condition was if he saw her, for she was little more than a skeleton. He is in this dilemma; if he did not see her the jury might well infer that he did not care if she died; if he did he must have known what was going on. The question is whether there was evidence that he so conducted himself as to shew that he desired that grievous bodily injury should be done to the child. He cannot pretend that he shewed any solicitude for her. He knew that Proctor hated her, knew that she was ill and that no doctor had been called in, and the jury may have come to the conclusion that he was so infatuated with Proctor, and so afraid of offending her, that he preferred that the child should starve to death rather than that he should be exposed to any injury or unpleasantness from Proctor. It is unnecessary to say more than that there was evidence that Gibbins did desire that grievous bodily harm should be done to the child; he did not interfere in what was being done, and he comes within the definition which I have read, and is therefore guilty of murder.

The case of Proctor is plainer. She had charge of the child. She was under no obligation to do so or to live with Gibbins, but she did so, and receiving money, as it is admitted she did, for the purpose of supplying food, her duty was to see that the child was properly fed and looked after, and to see that she had medical attention if necessary. We agree with what Lord Coleridge C.J. said in Instan , above: “There is no case directly in point, but it would be a slur upon, and a discredit to the administration of, justice in this country if there were any doubt as to the legal principle, or as to the present case being within it. The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her; that legal duty the prisoner has wilfully and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty.” Here Proctor took upon herself the moral obligation of looking after the children; she was de facto , though not de jure , the wife of Gibbins and had excluded the child’s own mother. She neglected the child undoubtedly, and the evidence shews that as a result the child died. So a verdict of manslaughter at least was inevitable.

But it is necessary to go further and see whether it was murder. *140 The evidence is that she had plenty of money; that she kept the child upstairs insufficiently supplied with food; that she hated the child and hit her. There is also evidence that when the child died of starvation both appellants took part in hiding the body and preventing the death from being known. They concocted a story that she had been sent away and was still alive. There is evidence that Proctor told Gibbins to bury the child out of sight, and that he did so in the brickyard where he worked. The jury came to the conclusion that she had done more than wickedly neglect the child; she had deliberately withheld food from it, and therefore we come to the conclusion that there was evidence which justified the jury in returning a verdict against her, not merely of manslaughter, but of murder. The appeals are therefore dismissed.

Appeals dismissed .

A. L. B. T.

*141