
    STATE vs. MARY DOHERTY.
    
      Jonesborough
    
    
      Sep. 1806.
    A person above 14 years of age is presumed by law to be doli capax. If under 14 years and not less than 7, the presumption is otherwise;but this presumption may be removed by circumstances.
    
      Indictment for murder. The attorney general produced in court, a boy about ten years of age, the brother of the defendant, desiring that the court would examine and see if he was of sufficient discretion to be sworn and sent to the grand jury. Upon examination, it appeared that he had not any sense of the obligation of an oath, nor of any of the consequences of swearing falsely. He had not even an idea of a future state of existence. Per Curiam. White J. and Overton J. He cannot be sworn. At fourteen years of age the law presumes discretion ; under that age it does not, and it must be shown. So far from this child having discretion, it is directly the reverse.
    The attorney general then moved that the child’s story might be heard by the grand jury, without being sworn.
    
      Sea Per Curiam. This cannot be done in any case 1 McN. 95, Leach’s. Cr. law 2 ed 337. 1 McN. 151-2, 6 Bac. Ab. 461.
    The grand jury having found a true bill for the murder of her father lately resident in Hawkins County.
    On Saturday she was brought to the bar,and appeared to be between 12 and 13 years of age. Upon being arraigned, she stood mute. The court assigned attornies Grey, and Powel, as her counsel, being poor, and without friends or relations to assist her.
    After this assignment of Counsel, she was remanded.
    The Monday following she was again brought to the bar, and again stood mute. The court directed a jury to be impannelled and sworn in the following manner.
    “ You swear that you will well and truly inquire, whether the person at the bar, Mary Doherty, stands mute through malice or the visitation of God.”
    
      Mr. Beaty a witness was called, who deposed that he had lived about a mile from the deceased Michael Doherty. Had known the girl about three years, and she always appeared to have common sense. Had heard her talk frequently as other people, was in the jail to see her last week, and spoke to her, and particularly respecting her brothers and sisters.
    Several other persons then spoke to her, but she made no answer, and appeared to be senseless.
    Her eyes appeared to be meanly closed, and whilst speaking to her, saw no difference in her manner. M. Shiply lived close to where the deceased resided. The last time he saw the prisoner, was, when she was arrested and taken from home, she talked more that day, than he ever heard her, for she usually did not talk much.
    He always believed she could talk as well as others until lately—He was in the jail this day week, talked to her, but saw no sign of understanding nor alteration in her countenance. Mr. Patten the jailer, heard her speak three or four times, soon after she came, but they were the many syllables yes or no, had net heard her speak for eight weeks, she had been in jail about four months, three months of the time, he had acted as jailer : When he first had the care of her, he endeavored to get her to eat for several days, but without effect, he left the victuals with her, after; being afraid that she would perish.
    The victuals left, was gone, though he cannot say that she ate it, but supposes she did. She seems to have been insane ever since her being in jail, about four months.
    He told her to change her clothes and to sweep the jail, and found it done afterwards, though he has once or twice known the jail swept without telling.
    She lay on a bed of straw, and he always found her on her right side, covered with a blanket, in the hotest weather.
    She did not discover any uneasiness from confinement. He always had to raise her up, she has not swept the jail for two or three weeks.
    He often made efforts to get her to speak himself, and many others in his presence, but all without effect.
    When he heard her speak, it was to a black girl of Mr. M'Allister. Had lately seen the negro girl try to get her to speak, but she did not. At another time he heard her speak, it was which Mr. Fane was in the jail. Mr. Fane told her he was to stay in jail with her, and asked her if she would give him , her blanket, she answered no.
    This morning her brother went into jail, & spoke to her, but saw no alteration in her countenance. Her eyes, are as you usually see them, nearly closed, and I do not recollect to have seen her wink them.
    Mr. Fane heard her speak six or eight weeks before, once or twice ; had been in the jail several times, but she did not speak.
    Mr. Long, the former jailer, kept the jail about thirty days, during that time never heard her speak but once, and that was to the negro girl of Mr. M’Allister. He was in the jail once or twice every day, and at first, she did not eat any thing without force. He thought she would perish with hunger. During his care of her, he never saw the least alteration in her looks ; her eyes were always closed. When he went into jail, he always found her lying. He tried frequently to get her to speak by persuasion and threats, but never could. Once he saw her smile when the black girl was dressing her.
    The attorney general offered to produce evidence respecting the guilt of the defendant, which he insisted was matter of evidence to show that she had a motive for standing mute ; and cited 2 H. H. P. C. 321, P. 2 & 3.
    
      Per Curiam. This cannot be done.
    The jury were then called.
    
      Per Curiam. The counsel for the prisoner may challenge for cause, but not peremptorily.
    During this trial, the defendant stood up erect in the bar several hours, her countenance was ghastly pale, without the least expression, or indication of understanding.
    The court in its charge to the jury, observed, that it was necessary, for them, not only to consider whether the prisoner could speak at all, but whether she had understanding to know what was meant by the indictment.
    Though she might say yes or no, still she might, not know what this court was about.
    
      After a short retirement, the jury returned, and found that the defendant was mute by the visitation of God ; upon which the court ordered the plea of not guilty to be entered for her.
    Being late in the evening, and it appearing to the court, that the defendant would neither eat nor drink when any person was near, they ordered her to be remanded, and brought out next day for trial.
    On Tuesday she was brought to the bar, and put on trial on the plea of not guilty.
    As usual, 48 persons were summoned, and upon application of the counsel assigned the prisoner, a copy of the list of jurors was handed by the clerk, and they for the prisoner were allowed peremptory challenges, as is usual in case of felony.
    The counsel for the prisoner, stated to the court, that as they had no means of being informed of the prisoners disposition with respect to peremptory challenges, they wished to ask each person, summoned as a juror, as he came forward, whether he had made up, or expressed any opinion.
    
      Per Curiam. The expression of an opinion ought to be the subject of particular exception, and triers to determine, but, whether a person has made up any opinion, maybe ascertained in the way the counsel have asked.
    Each person may be asked, whether he has made up any opinion, that may influence his verdict.
    This too is properly an exception for favor, and strictly speaking, triers ought to determine it, but the court in favor of life, humanity, and of a person whose understanding is lost by the visitation of God, will not call triers, unless insisted on.
    After the jury were elected, tried, and sworn, and the indictment had been read by the clerk, he stated, that upon this bill of indictment, the prisoner at the bar had been arraigned, and stood mute, whereupon a jury was sworn to inquire whether she stood mute through the visitation of God, and said jury found that she stood mute by the visitation of God ; upon which the court ordered the plea of not guilty to be entered on her behalf, and for the trial of which she be put upon her country, which country, you are ; so your charge is, to inquire whether she is guilty 
      or not guilty, If she is guilty, you say so, If she is not guilty, you say so, and no more, so hear your evidence.
    The counsel for the prisoner
    moved to have the state's witnesses separated—ordered by the court as a matter of course in capital cases.
    Mr. Beaty was sworn in chief. He did not know the age of the prisoner, but supposed she was about thirteen years of age, or perhaps more. Was told by a person, that the deceased was missing four nights and four days ; believed he was dead : with another man, he went to his house, and all over the plantation, supposing that he was dead somewhere about it,as he was subject to intoxication. Inquired of the children, of whom the oldest was the defendant. He proposed to stay with the children all night, as they might be afraid. The defendant answered, that she had staid before, and was not afraid. The house the old man lived in, was built of logs, and raised a small distance from the ground ; when standing on the outside of the house, with several others, he by chance discried something under the house, Upon raising a puncheon of the floor on the inside, the deceased was found under the floor dead. He then made the following observation to the prisoner, Mary Doherty. “ Now you knew this.” She answered, " Beaty you lie.” He went for the coroner, and was upon the inquest. He saw blood upon an axe that was found, upon the bed, and wall of the house, near the head of the bed, and on a wheelbarrow.
    The axe appeared to have been washed, but there was some in the eye of it. The deceased had blood on his shirt, & about his head. The bed appeared to have been washed, but the blood was said to be seen. The house floor had been washed, but there was the stain of blood plainly to be seen on it; between the bed and where the deceased was found, which was five or six feet.
    The prisoner said, the last time she saw her father, was four days before that; and about 150 yards from the house, this was before he was found.
    Knowing that the deceased usually wore a great coat; he asked the prisoner where it was; she answered you need not care. He told her that he wanted to see it, she then went to the bed where the deceased was supposed to have been murdered, and got it from thence, gave it to him, saying, “there I suppose you are satisfied.” The prisoner did not discover any concern when her father was found : nor when she was examined before the coroner, & looked, and talked with a great deal of assurance.
    The family of the deceased consisted of the prisoner, the little boy who had been offered as a witness in court, and two other younger children. He had lost his wife. Never saw the prisoner except once, off the plantation, and never saw any of the family at a place of worship.
    The deceased was found a few days before the 13th or 14th of April, when the coroner’s inquest was held. He never saw the prisoner employed except once or twice, and then she was providing some victuals, nor did she ever go to school.
    The house of the deceased was not much resorted to, they lived to themselves principally ; did not know whether the prisoner was accustomed to converse with other children in the neighbourhood or not. As to any difference in the understanding of the boy & the prisoner, he had not observed The other children were present when the body was found, and none of then appeared to be alarmed in the smallest degree. When found, the deceased looked as if he had been dead several days, the side of his head looked black, as if it had been bruised, but did not know whether his scull was broken or not. He had seen the deceased a few days before his death, going by his house, home.
    There was not any thing remarkable in the character of the deceased, nor did he know any thing of the conduct of the deceased to his family. He never saw him intoxicated at his own house : and always thought the prisoner possessed as much understanding as common. Of this he judged from her answers to questions he had asked her ; but when he was there ; which was frequently the case, she did not appear to be employed as girls of her age usually are. At the inquest, she did not say any thing from which he could collect an idea, that she was sensible of the attrocity of the crime committed.
    John Miller was sworn. He was one of the inquest. Beside the several things stated by Mr. Beaty, he observed that when the deceased was taken from under the floor, the right side of his head was cut, and on the other side his skull was broken from which blood flowed—saw the blood on the chairs, on the floor, on his clothes, and against the wall, at the head of the bed, where he supposed it to have sprinkled.
    At the inquest, the prisoner was tied with some tow strings, and appeared to be hurt.
    There was a parcel of old women pushing her about, and sometimes reviling her—he loosed her, took her to a branch, and told her to wash herself, as she was extremely dirty. He then talked to her familiarly, upon which she began to shed tears.
    As she had been beaten and nauled about by several who were there, he pitied her, and told her she must not runaway, to stay with him, and no person should injure her, nor should she be served in the manner she had been any more.
    Having thus used persuasion with her, he told her she must tell him. The counsel for the prisoner objected, that no confession obtained from the prisoner by hope or fear, should be given in evidence against her, and it was manifest, that whatever she did tell this witness must have been extorted from her, by an irresistible impulse, arising from the hope of better treatment.
    The witness being asked if he did not believe this to be the case, he acknowledged he did.
    For the defendant was cited 1 H. H. P. Cr. 24.
    
      The attorney general relied upon 1 Hay. 482 State vs. Moore, and upon 1 M’N. 48, 9. The King vs. Butcher which he contended, clearly authorised the giving in evidence, so much of the defendant's confession, as related to facts which appeared independant of that confession.
   Overton J.

If it be a rule of law, dictated by the laws of humanity, that a confession extorted by hope or fear, cannot be given in evidence, the cases of Rex vs. Butcher, and State vs. Moore, must furnish exceptions to that rule, in favor of the state. In almost every case the exception will destroy the rule. Few cases indeed occur without facts, to which part of the confession will apply.

Facts speak for themselves, and may be given in evidence there is no doubt; and to break in upon the rule, for the purpose of taking such parts of the confession, as relate to facts, seems to arise only in the too anxious solicitude to convict.

The case of Rex vs. Butcher was determined in the year 1798.

Many of the English decisions since the revolution, approach too near severity, to be consistent with the humane principles in the ancient books.

The law appears to be more correctly laid down, in the case of the king vs. Warrackhall 1 McN. 47 and recognised in Dorothy Mozeys case 1 McN. 48.

That wherever the acts done are not sufficient to make out a charge, conversation or confession extorted by fear or hope, cannot be received, so as to couple it with those acts, in order to make out the proof.

White J.

Said he had not fully considered of this case, but was inclined to think that the law was, as stated in the opinion delivered.

John Sheflet a witness for the state, deposed to many of the facts stated by Mr.Miller. He believed the deceased to have been murdered, heard a number of persons examine the defendant, but she constantly denied knowing any thing about the death of her father.

There appeared to be a difference in her countenance when her father was found. She appeared to be scared ; had been acquainted with the family about three years, and lived a near neighbour. He never saw her at work, nor ever abroad.

She appeared to be of an obstinate disposition.

He staid all night at the house after the body was found. She did not discover any disposition to make her escape, though she might have done so.

The deceased was at his house, and was telling him that this girl and two of his other children had run away, and then stated the ages of his children, but did not recollect them.

The prisoner was tied early in the morning, and remained so until the inquest.

White J.

stated to the jury the circumstances that were necessary to constitute murder. Their inquiry was, whether the prisoner was the person who took the life of the deceased, and if they were of that opinion, to inquire whether it were done with malice aforethought.

From the circumstances appearing, there seemed to be no doubt as to malice, except what had been attempted on the ground of the tender years of the prisoner. Neither argument nor authority had been introduced on this points. He stated what he conceived to be the law on this point, and if incorrect, should be glad to be corrected from any quarter.

If a person of fourteen years of age, does an act, such as stated in this indictment, the presumption of law is, that the person is doli capax. If under fourteen and not less than seven, the presumption of law is, that the person cannot discern between right and wrong. But this presumption is removed, if from the circumstances it appears that the person discovered a consciousness of wrong. The jury retired, and after being absent a few hours, returned a verdict not guily.

Note. During this trial the prisoner did not discover any symptoms of mind, of alarm, or the least understanding of what was passing. Her eyes were nearly closed, nor was she observed to wink. The sheriff took her out of the bar, and in doing this, she appeared so perfectly insensible, as to strike her head against the end of it.

She stood for some time motionless in the court yard, where great numbers of persons examined her from curiosity.

At length it was understood, that some charitable women who lived in the neighbourhood, led her away from the croud.

The next day just before the sitting of the court, two of the judges were walking is a balcony opposite the court house, when one of them observed there was a girl sitting near an old woman at the steps of the court house, who in shape and size very much resembled the girl tried the day before.

After a few minutes she threw up her head, and instantly appeared a countenance, which was recognised to be the same.

Her eyes were open, clear, animated, and emitted striking sensations of complaisancy.

In stature she was low, but of a robust, square form. Her cheek bones high, and her face broad. Instead of her pale death like countenance exhibited in court, her complexion was vivid, and her countenance expressive. As the judges passed by her in going into court, she threw up her head and smiled.

These circumstances are mentioned for the purpose of showing the inconceivable effort, and exertion of which the human mind is capable, under certain circumstances. How she became impressed with the danger in which she was placed, remains to be discovered, for so she must have been to have fitted her mind for the more than human task it had to perform.

After having been arraigned for murdering her father, it would not be strange if every nerve were tremulously alarmed.

But how any being, endued with thinking powers, could so abstract the mind, and withdraw its accustomed emanations from the countenance, upon so awful an emergency, is beyond ordinary calculation.

She certainly practised a deception, and that most completely. No person was seen, but supposed she had literally lost her understanding,if not her speech. Several hundreds, if not thousands, particularly examined her from time to time, and none discovered the deception. This part of her character, to some, may appear the more extraordinary, when it is recollected that she was young, without education, decorum, a sense of religion, or the benefit of social intercourse.

But it seems that these circumstances alone, enabled her to perform, an effort of dissimulation too much for ordinary belief.

To have maintained this abstraction of mind, and to have kept every sensation of the soul, from appearing on the countenance, upon so trying an occasion, and for such a length of time, seems to require powers beyond those attached to the human character.

Her education was a disgrace to those whose duty it was to attend to it. Without schooling, precept, example, morals, or the light derived from social intercourse, we behold an extraordinary character. Though the fraud she practised required determination of mind and command of countenance of which the human character before was thought incapable, there exists much greater cause, for regret than for admiration.

This is a striking proof of the benefits of education to children. Let it be a warning to those who have the care of education. Parents cannot be too awfully impressed with the responsibility attached to them. Crimes of children are too often owing to the want of good precepts, education and morals.—At the day of retribution, these things must be taken into account, with an all just God.

A similar attempt to impose upon the court appeared at the Old Baily in May 1787. 3 Lawyers Magazine 133, The Grand jury found a Bill of Indictment against Elizabeth Steel, for simple grand larceny. On her arraignment, she stood mute. The court directed a jury instanter, and they were sworn to inquire, whether she stood mute of malice, or by the visitation of God. The jury returned a verdict, mute, by the visitation of God. The prisoner was remanded, and die question referred to the consideration of the judges, whether under these circumstances she could be tried upon the Indictment.

In Trinity Term following, the judges assembled at Serjeants Inn Hall, and they were of opinion that a verdict finding a prisoner mute by the visitation of God, was not an absolute bar, to her being tried upon the indictment, for although a person, Surdus et mumus a nativitate. in contemplation of Law, may be incapable of guilt, upon presumption of idiotism, yet that presumption may be repelled, by evidence of his capacity to understand by signs and tokens, which it is known that persons thus affected frequently possess to a very great extent. Great diligence and circumspection ought however to be exercised in so critical a case.

But if all means to convey intelligence to the mind of such a person, respecting the nature of an arraignment, should prove ineffectual, the clerk of the arraigns may enter the plea of not guilty ; and then it is incumbent on the court to inquire touching all these points of which the prisoner might take advantage himself, to examine all the proceedings against him, with a critical eye, and to render him every service consistent with the rules of Law.

In the October session following, the prisoner was again put upon her arraignment. On being asked by the clerk of the arraigns, whether she was guilty or not guilty, she replied “ you know I cannot hear.” The Court upon a supposition that she could hear, repeatedly explained to her, the nature and effect of the opinion of the Judges. That it was in vain for her to attempt to evade her arraignment by pretended deafness, for that as she must at all events be charged with the felony for which she was indicted, she would loose be such practice, the advantage of asking proper questions of the witnesses, but all endeavours proving ineffectual, a fury was again returned and sworn well and truly to inquire whether Elizabeth Steel the prisoner at the bar, stands mute through wilfulness and obstinacy, or through the visitation of God, and the Jury again found a verdict mute by the visitation of God. The same Jury were immediately sworn in chief, & charged to try the Indictment. They found the prisoner guilty, and at the close of the session, she received sentence of transportation for seven years.  