Monday 16 December 2019

Thomas and Sarah Fogo "the direct result of drink"

DUNEDIN, This Day. A great sensation was caused in the northern part of the city when it was announced that a prominent citizen had been murdered by his wife. Mr. Thomas Fogo, the well-known painter, of Frederick and King streets, had some words with his wife in their bedroom at about 7 o'clock, and during the altercation Mrs. Fogo stabbed her husband over the region of the heart with a knife. Their son, whose attention was attracted by the noise in his parents' room, rushed into the apartment, and was horrified to find his father bleeding profusely, and his mother standing close to him with a blood-stained knife in her hand. Mr. Fogo did not utter a word, but staggered into the arms of his son, and expired before Dr. Closs, who had been telephoned for, could reach the scene. Mrs. Fogo, who acknowledged killing her husband, has been placed under arrest pending the Coroner's enquiry. 
Mrs. Fogo was brought before the Court this morning and remanded till Thursday. No bail was asked for. 
An inquest will be held at 5.30 this afternoon.  -Evening Post, 29/9/1900.

This morning the City was startled on learning by an extra issued from this office that Thomas Telfer Fogo, painter and paperhanger, of Frederick street, had been stabbed by his wife. The report read almost like an invention — the parties are so well known and were so utterly above contact with crime. But our information was not published until inquiry had proved its correctness beyond the shadow of a doubt, and further investigation not only confirms all that our extra contained but makes the cause clear. It is our sad duty to relate the tale of a horrid deed the direct result of drink.
"Tom" Fogo, as he was familiarly called by his many acquaintances, was an Edinburgh man. In that city he served an apprenticeship to the brass-finishing trade. He came out to Victoria when quite a young man, and in 1861 arrived in Otago. Making the acquaintance of Mr Andrew Lees, who was starting in business as a painter and paperhanger, Mr Fogo threw up his own trade and learned that which Mr Lees followed. Mr Lees, in fact, taught him. After a little while Mr Fogo went to Auckland, then to the West Coast. It was there that he met and married his unfortunate partner in life. Returning to Otago in 1866, Mr Fogo set up in business on his own account in the house at the corner of Frederick and King streets, wherein he has now met his doom. For some years past Mr Fogo had gradually paid less and less attention to business, for he had made a few thousands — enough to live upon, being the owner of several city properties — and, to tell the whole truth, he had largely given way to the drinking habit, though his friends did not see all that went on in this way, as he drank by himself at night and slept most of the day. This behaviour was a source of incessant worry to his wife, and led to frequent jangles, in which she reproached him, and he retorted in rather forcible language. Mrs Fogo denies that she was other than perfectly sober when the fatal blow was struck.
What actually led up to the murder can only be surmised. Husband and wife were probably quarrelling, but so far as can be learned nothing of this was heard either by the daughter, whose bedroom was next her mother's, or the son, who slept in the room across the passage. The first that was known of any trouble was when the son heard his mother, or at any rate someone in her room — and the voice sounded like his mother's — shouting out "Andrew." He went at once to the door of his mother's room and was about to enter, but found the lock snibbed. Putting his shoulder to the door, he burst it open. Miss Fogo had by this time come out into the passage. As Andrew shoved the door open his father fell into his arms, and would have tumbled on to the floor but for Andrew easing him down. Evidently Mr Fogo had been in an upright position in the corner of the room alongside the door. As he fell on to his face, partly in the passage and partly in the room, blood gushed in quantity from a wound in the left breast. Mrs Fogo was standing in the room with a knife in her hand. She was partly dressed. Mr Fogo himself had nothing on but a short tight flannel shirt. He never spoke, but gave two groans and thereupon died. When Mrs Fogo was observed she was evidently in a frenzy of excitement. Her first words were to the effect that she had done it, but that he would pull round all right — there was no fear of his dying, and she repeated that it was her act. Mr Andrew Fogo called Dr Closs by telephone, and the doctor told them that the case was beyond his skill. Death must have very swiftly followed the blow. The doctor found only the one wound, but that was quite enough. It was a descending wound below the left collarbone, not making much of a superficial cut, but going to a depth of fully four inches, and no doubt severing some of the larger vessels even if it did not pierce the heart or lungs. Later in the morning Dr Closs made a post-mortem examination, the results of which will be disclosed before the magistrate. When the doctor arrived Mrs Fogo was fully dressed. She made no secret of the deed. There were two knives in the room. One was a common white-handled carving knife, blunt and unsmeared. What it was doing in the bedroom no one can say. The other, which Mrs Fogo admitted using, was picked up by the doctor in the passage. It is a strange-looking weapon, something like a meat-knife and something like the single blade of a pair of sheepshears; the cutting part long and very sharp on edge and point, the haft bound round with wire because of an old split in the wood. Mrs Fogo volunteered the remark that she had gone down and got it, and she added: "If I hadn't done it I would have been a corpse there myself." 
Dr Closs went from the house to the North Dunedin police station and reported the matter to Sergeant Gilbert, who went across with Constable Daubney a little before eight o'clock. The sergeant, who was in plain clothes, said to Mrs Fogo that he supposed she knew who he was. She replied in the affirmative, and said: "I am responsible. I have done it. If I hadn't he would have killed me." Answering the sergeant, she also said: "I did it with that knife" — pointing to the weapon which Constable Daubney was wrapping up. Then she said: "I suppose you are going to take me?" Sergeant Gilbert replied that that would be his duty, and she expressed her readiness to accompany him, but asked that she might be allowed to walk to the station instead of going in a cab, and also requested a short delay whilst she had a mouthful of breakfast. The sergeant acquiesced, and they walked to the station without any fuss, arriving at about 8.45 a.m.
Sarah Fogo was brought up at the Police Court this morning before Messrs J Duthie, J. Evans, and W. Dickson, J.P's and charged with that she did on the 29th inst. kill and murder her husband, Thomas Fogo. 
Mr J. B. Thornton appeared for accused. 
Sub-inspector Kiely said: This offence was committed at about seven o'clock this morning. An inquest will be commenced this evening, and will not be concluded for several days. I would therefore ask for a remand until Thursday next. That will give us time to get the inquest concluded before the accused is brought before the Court again. 
Mr Thornton: I have no objection to the remand. 
Mr Duthie: The remand is granted. 
No bail was asked for. 
Deceased was sixty-five years of age last Monday. Mrs Fogo is about a couple of years younger. The inquest was to be opened at 5.30 this afternoon.  -Evening Star, 29/9/1900.

FOGO. — On the 29th September, at Frederick street, Thomas Fogo; aged 65 years.  Flowers respectfully declined.  -Otago Daily Times, 1/10/1900.

The funeral of the late Mr Thomas Fogo took place yesterday afternoon, when a very large number of citizens followed the remains to the grave. The deceased's brother, Mr John Ewen Fogo, of Port Chalmers, and his three sons were amongst those present. The Caledonian Society, Dunedin Bowling Club, and Otago Stock Exchange were officially represented. The following are the names of some of those who took part in the cortege. Messrs A. Sligo, A. Lees, C. Haynes, C. Tilburn, J. Hopkins, F. Graham, J. W. Jago, J Duthie, P. Treseder, J. Peake, G. C. Israel, J. McDonald, A. McFarlane, B. Torrance, T. Munro, M. Cohen, G. Green, G. Esther, J. Robin, A. Burt, S. G. Smith, W. Wood, J. A. Cook, J. R. Thornton, A. Owen, J. Jackson, W. D. Hanlon, W. Dawson, J. B. Thomson. K. Mackenzie; J. Reid, W. Owen, and Captain. Fox. The Rev. W. Hewitson conducted the burial service.  -Otago Daily Times, 2/10/1900.

At the inquest on the body of Thomas Fogo to-day the Coroner ordered the Court to be cleared, and insisted on the withdrawal of the reporters. Mrs Fogo’s counsel announced her intention of reserving what she had to say for a higher Court. The jury’s verdict was that deceased died from having been stabbed by Sarah Fogo, but under what circumstances there was not sufficient evidence to show.  -NZ Times, 3/10/1900.

The following is the conclusion of our report of the proceedings before the magistrate yesterday: —
Georgina Agnes Fogo said: I am the daughter of Thomas and Sarah Fogo, and lived with my parents. The accused is my mother. I was at the theatre on the evening of the 28th, and got home at 10.30 or 10.45. My parents were then in bed. I went to their bedroom. Both were in bed. I spoke to my mother. I said “Good-night” to my father as I was leaving the room. He did not answer me, but mumbled something to my mother. My room is next to theirs. It is not a thick partition between the rooms. I can hear voices in ordinary conversation from their room when in mine. I went direct to bed. I did not hear my parents speak after going to my room. I slept quietly through the night. Nothing occurred to disturb me until about seven o’clock in the morning, when I heard a voice or voices calling. I could not tell whose voice it was. Then I heard a voice calling "Oh, Tom," then "Andrew" twice, then my own name, “Georgie.” I could not tell whose voice it was. I jumped out of bed and got into the passage the same time as my brother. He was beating his hands on the panels of my parents’ bedroom door and trying the lock at the same time. He burst the door in. I cannot remember exactly what I saw, but a body seemed to flash past me while I went to my mother, who was in the middle of the room. My father was by the door. My mother had a black-handled knife in her left hand. I know the knife. It was usually kept on the dresser downstairs. I said: “Oh, mother, what has happened?” She replied: “I did it, I did it; if I had not done it I would have been a corpse there myself.” From time to time she said that she had done it in self-defence. I saw the carved stick on the floor, but not the silver-topped one. When my father was in his sober senses he was very morose and would not speak kindly to inmates in the house, though he would be pleasant to outsiders. He was of intemperate habits. When he came to the house in liquor he would either lie on the sofa or ask for something to eat, and be very violent if he did not get it. He always got it if mother was about; she gave him all he wanted. When in drink he was liberal in money matters to us children. He was always liberal to me. I don’t know what he did with mother. He was often violent to mother and myself.
Jane Coutes, matron at the police station, said: It is my duty to visit all female prisoners. I have had the accused under my charge. On Saturday, the 29th September, Mrs Fogo had a conversation with me. She was speaking about the death of her husband and saying what a dreadful thing It was. She said: “I did it in self-defence. I must have been mad when I did it.” I asked: “How did the knife come to be in the room?” and she replied: “I went to the kitchen for it.” She said it was a knife she used for cutting meat. I had previously warned her to say as little as possible.
Mr Fraser asked whether when Mrs Fogo spoke about going for the knife she seemed to apprehend the gravity of the charge. 
Mr Thornton objected.
Witness, continuing; I told her not to discuss the matter. She said: “I know I am all the time convicting myself.” This witness was not cross-examined.
Sergeant Gilbert: From information received I went to Fogo’s house accompanied by Constable Daubney. Deceased was on his back in the bedroom. I was in plain clothes. I told Mrs Fogo who I was. She said: “I am responsible. I did it — I did it with a knife.” I showed her the blackhandled knife produced, and she said: “That’s the knife I did it with. I didn’t intend to kill him, but I believe if I hadn't killed him he would have killed me.” She then said: “I suppose you are going to take me.” I said “Yes.” She said: “I’ll go with you.” After a-few minutes she said: “If you have no objections I’ll walk along with you.” I said: “Your son has sent for a cab.” She said: “I would rather walk.” So we walked along to the central station. Before we started her daughter asked her if she would have a cup of tea and something to eat. She said she would, and asked if 1 would wait, and I said I would. She was very calm and spoke very nicely. I saw that the door had been forced.
Alexander Sligo, bookseller and stationer: I knew the deceased and his wife for many years. Mrs Fogo had a conversation with me on Thursday, the 27th. She asked why I had not called at the house the previous Sunday. I replied that I had called and knocked, but that nobody came. After a desultory conversation she said she wanted to speak a word with me privately, and then said: “If anything happens suddenly to me I want you to promise that you will cause an investigation to be held and a post mortem to be made.” I made somewhat light of the idea involved in the remark, and she said: "Well, one never knows what may happen, and I have a fear of being buried alive.” She then added by way of giving a further reason: “One never knows — I might get poisoned or anything.” I said if it would ease her mind for me to make such a promise I would make it, and fulfil it if necessary. 
Mr Thornton did not cross-examine. 
Mr Fraser: That is the case for the Crown, your Worship. 
Mr Thornton; I do not propose to call witnesses, your Worship. 
The caution was thereupon read, and 
Mr Thornton said: She reserves her defence.
Mr Thornton said he supposed His Worship would hear an application for bail. 
His Worship replied that he thought that was an application that should be made to the Judge of the Supreme Court. He would not like to take the responsibility himself. 
Mr Thornton said that meant that he could not make the application at all, because the Judge had gone away to the Court of Appeal, and it would be no use sending up the papers as in a formal matter — the Judge would require to hear the points argued. 
Mr Fraser: So far as I know bail is never granted in a murder case. I never heard of it.
Mr Thornton: Ah, that’s a different thing, His Worship has discretion. 
Mr Fraser: I admit that.
Mr Thornton proceeded to say that there were no objections in the circumstances of this case to the granting of bail. The question was what should guide His Worship. The principle was laid down in Regina v. Scaife and wife. In that case Chief Justice Coleridge said the principle on which the party committed for trial for an offence could be bailed was founded on the probability of his appearing to take his trial, and not on his supposed guilt or innocence. In this case the parties were all well known, and there was not the least doubt that the accused would appear at the trial if bail were granted. Bail was refused in Scaife’s case because a true bill had been found. The same thing happened in Regina v. Chapman, in which Lord Abinger said that if the motion putting off the trial had been made before any bill was found it might have been different. Learned counsel would also draw the Court’s attention to Regina v. Fraser, in the Victorian Reports for March, 1900. That was a judgment of Mr Justice Hood’s, in which he said that the accused person was presumed to be innocent, and the only ground for locking him up was to make sure that he would attend at the trial. He (Mr Thornton) asked the Court to believe him when he said that there would be no desire on Mrs Fogo’s part to escape — she had not attempted to evade the position so far — and seeing that she was over sixty years of age and had never been in such a position before, and in consideration of her health, it would be better for her to be with her friends. 
Mr Fraser said that Regina v. Fraser was not a murder case, and where murder had been actually committed he never knew of bail being granted. There was no great hardship in refusing it, for the sessions commenced on the 26th of November. The worldly position of the accused had absolutely nothing to do with the question. It was the gravity of the crime alleged, and the case made against the accused, that should guide the magistrate. He would call attention to the recent case of Regina v. Spilsbury, in which Lord Russell declined to admit to bail a person charged in an extradition case. The principle was there clearly laid down. 
His Worship: At present I do not see my way to agree to the application. Possibly on more mature consideration I may make up my mind to do so, and I can let you know. 
Mr. Thornton: Very good, your Worship,
The case was concluded shortly before five o’clock.  -Evening Star, 5/10/1900.

The trial of Sarah Fogo for the murder of her husband, Thomas Fogo, commenced at the Supreme Court this morning. Before the court rose the case for the Crown had closed. The evidence revealed nothing new excepting that the daughter of accused accounted for the presence in the bedroom of the knife with which deceased was stabbed by saying that she had taken it there on the day before the tragedy.   -Mt Ida Chronicle, 30/11/1900.

(BY TELEGRAPH.) Dunedin, November 30. The trial of Sarah Fogo for the murder of her husband, Thomas Fogo, was concluded to-day. Mr Sim, for the defence, addressed the jury at length and with force. The theory set up to account for the deed was that Fogo had been drinking during the night, as shown by the gin bottle in the bedroom. Mrs Fogo had got up to do washing. Her husband asked for another drink, which she refused. He jumps out of bed in a violent rage, seizes a knife in the room, and threaten to cut her throat to frighten her. He goes to snib the door, when Mrs Fogo seizes a stick and strikes a blow on the back of the head. Dazed for a moment, he turns round with the knife in his right hand, and makes a step. She wrests the knife with her left hand, and strikes a blow without realising what she is doing. The moment she does it she steps back, and is found with the knife in her hand by her son and daughter. The jury, after a retirement of seven hours, returned with a verdict of guilty, with a recommendation to mercy. The Judge, in passing the sentence prescribed by the law, thought he might say he concurred in the recommendation of the jury, and would forward it to the proper quarter. It was not for him to give effect to it. The Judge then put on the black cap, and passed the death sentence in the usual form, the prisoner bursting into tears.  -Oamaru Mail, 1/12/1900.

Such are the bare bones of the case.  For a full account we turn to the Otago Witness:
The sitting of the Supreme Court was resumed at half-past 10 o'clock on Thursday before his Honor- Mr Justice Williams and a common jury. 
Sarah Fogo, the widow of the deceased man, was charged with that she did, "on or about the 29th of September, 1900, kill and murder one Thomas Fogo." 
The accused pleaded Not guilty. 
Mr J. F. M. Fraser (Crown Prosecutor) conducted the case for the Crown, and Mr W. A. Sim, with him, Mr J. R. Thornton, appeared for the accused.
Upon the jurors being called, two were challenged by the counsel for the defence, two were required to stand aside, and three were challenged by the Crown. The following gentlemen were the jury: — Messrs W. McGill, (foreman), Wm. Ross Swanson, John Laing, Murdoch S. Ross, David Munro, William A. Todd, S. J. Lyon, H. A. McBeath, R. McCormack, A. J. Eggleton, R. Hebrison, and James Farra. 
The Crown Prosecutor, in opening the case, said: May it please you Honor and gentlemen of the jury, — Before I proceed to open the case I want to address one or two words to you in connection with the matter. It is only right I should do so, though probably it is unnecessary. In the first place, gentlemen, no doubt you are fully impressed with the serious nature of the present charge, and I would ask you, therefore, alike in justice to the accused and in accordance with your duty, to completely forget and to wholly cast aside everything that you may have heard about this case, or may have read, and rumours — pay no heed to them. Gentlemen, it will be your duty to give a verdict in accordance with the sworn testimony adduced before you, and if you allow yourself to be influenced in any way by idle rumours you may do a serious injustice either on one side or the other. I think I am justified in saying you may fairly assume that had there been any evidence that would throw light on this case other than the evidence adduced, before you, it would be brought. In the second place, it is hardly necessary for me to point out to you that the worldly position of the accused has no bearing whatever on this case. In some cases of motive the question of means or want of means might largely enter into the question of guilt, but this is not one of those cases. I trust you will give due weight to what I have said, and will receive it not in a spirit of opposition, but exactly as it is given to you, and as it is my duty to give it to you. The prisoner stands charged with the murder of her husband, Thomas Fogo. Both the deceased, and the accused were, I understand, very old residents in this city, as probably is known to a considerable section of the jury. They have been married for many years, and have resided here for the greater part of their married life. The family consists of a son and a daughter, who will give evidence here to-day, and at the time of the alleged crime being committed there were only four persons in the house — namely, the deceased (Thomas Fogo), the accused, the son, and the daughter. [The learned Crown Prosecutor here detailed the circumstances of the case substantially as they have already been made public, and were detailed in the evidence subsequently given, and (continuing) said:] I would point out to you that there is not the slightest evidence whatever of any attack having been made upon the accused. I had the accused most carefully examined by a lady doctor, Dr Siedeberg, and she will tell you that there were no bruises whatever upon her body. Accused, as you will see, is a woman of fleshy habit, and had there been any violence towards her, even had her arm been gripped with violence, traces would have remained. Dr Siedeberg was unable to find any bruises at all on her body. At this stage I would also point out to you that although the daughter was sleeping in the next bedroom — indeed, the mattress of her bed was against the partition — there is no evidence of any calling for help prior to the occurrence; and also that both son and daughter say that throughout the night they heard no sound of quarrelling. It is my duty to point out these very strong and pertinent facts, in order to show that there is no foundation for the statement of the accused having done this in self-defence. Dr Closs says, and he will give the reason for it, that the injury to the back of the head was caused before the deceased was stabbed, and that he does not think the blow would have produced insensibility, but would have reduced him to a dazed condition; and that the blow was antecedent to the stab. You will also have evidence that the blow was struck while the man's back was turned. The evidence will show that the blow was struck from behind. The son, I think, shows that there was a knife on the dressing table — a white-handled knife. The constable did not see it, but either Dr Closs or young Fogo says it was there; but the black-handled knife — a very formidable weapon — was the knife with which the man was killed. At this stage a very pertinent inquiry on your part will be, whence came this knife? Well, the witnesses are all agreed on the one point that this knife was commonly kept on the kitchen dresser. Georgina Fogo says she took it upstairs to use it there on Thursday, and might not have taken it down. However, on this question you will have the testimony of the matron of the Dunedin police station, whose duty it is to visit the prisoners under her charge, and she will tell you that on Saturday, the 29th of September, 1900, she had a conversation with accused. She spoke of the death of her husband, saying what a dreadful thing it was, and she then said: "I did it in self-defence; I must have been mad when I did it." Miss Coates asked her, "How did the knife come to be in the room?" and she replied, "I went to the kitchen for it; it is the knife I use for cutting my meat." But Miss Coates did not endeavour to elicit this information from her. She says she previously warned the accused not to discuss the matter, and she replied: "I know I am all the time convicting myself.'' Mark you, she said, "I went to the kitchen for it." That accounts for the presence of the knife in the room. It also accounts in all probability for the reason why the accused had on her dressing gown. It may fairly be assumed, I think, that she put the dressing gown on for the purpose of going down to the kitchen and getting the knife. If the witnesses are correct in thinking that this white-handled knife was on the dressing table at the time, then I think it is a fair deduction for you to make that the accused knew this weapon (the black-handled carving knife) was far more likely easily to effect her purpose, and deliberately went for it. And the door was snibbed! Now, think for a moment, gentlemen, what that means? Who snibbed that door? The deceased? Hardly, gentlemen. He had been reduced to a dazed condition by the blow on his head — struck by the accused. He had been struck from behind. Just, probably, as he was recovering his full senses he sees in the room his wife, the woman whom he knew had struck him with the stick, armed with that weapon. Would he snib the door then, gentlemen? Hardly. I think you can have no hesitation in coming to a conclusion as to who snibbed the door. Now, briefly, gentlemen, that is the outline of the case. You will hear the evidence, you will listen to it very carefully, and every possible argument that can be adduced for the defence will undoubtedly be raised by my learned friends with their customary skill and care. Finally, you will have the advantage — in a case of this kind the inestimable advantage — of hearing his Honor's summing up. It is my duty, gentlemen, to put it to you plainly that if the evidence is presented to you as I anticipate it will be, in accordance with my brief, it will be your plain duty to bring in a verdict of wilful murder against the accused. It is perfectly true that on an indictment for murder you can, under certain conditions, reduce it to manslaughter. If, under circumstances that his Honor will detail to you — a fight, intense provocation, a hasty blow, not with the lethal weapon used in this case, the act is deemed to be done in hot blood, the offence is robbed of its gravity. But, gentlemen, in this case there are one or two features which you cannot overlook. In the first place, you have the use of the knife. Then you have the journey to the kitchen for it. There is time — ample time. Let us assume for the sake of argument that there had been some nagging quarrel. There is no evidence of it, but we will assume it — that the man had nagged at the woman until she struck him with the stick unawares, her blood being up. What excuse could be adduced for her action in going deliberately downstairs, possessing herself of this knife, returning with and using it? Surely, gentlemen, there was ample time for reason to resume its seat. Surely there was time for passion to cool — ample time for reflection. She says she did it in self-defence; that if she had not done it she would have been a corpse herself. Idle talk, gentlemen. She left the room. Why did she come back? If it is true that she believed she stood in any danger — if there is a word of truth in it — why did she come back, and why did she come back armed with a lethal weapon such as this? In all these cases, gentlemen, subject to his Honor's ruling, a very important feature of the case is always the instrument used to effect the alleged murder. Let me quote to you from "Russell on Crimes," page 57. Summarising cases of murder, the author says: — "From the cases which have been stated in the former part of this section, it appears that malice will be presumed even though the act be perpetrated recently after the provocation received, if the instrument or manner of retaliation be greatly inadequate to the offence given, and cruel and dangerous in its nature; for the law supposes that a party capable of acting in so outrageous a manner upon a slight provocation must have entertained a general if not a particular malice, and have previously determined to inflict such vengeance upon any pretence that offered." If  the home was an unhappy one, as, indeed, it probably was, judging by the evidence, the law of the land provided the accused with full and ample remedies. If her husband was a habitual drunkard, she could divorce him on that ground alone if the habitual drunkenness extended over the necessary period. If he treated her unkindly, again, the law offered her sufficient protection from him and provision for herself. As has been said, "No man under the protection of the law is to be the avenger of his own wrongs. If they are of a nature for which the laws of society will give him an adequate remedy, thither he ought to resort; but if they be of what nature soever, he ought to bear his lot with patience, and remember that vengeance belongeth only to the Most High." 
Mr Sim: What are you quoting from? 
The Crown Prosecutor: From "Russell on Crimes," page 54. I will read from page 54 again: "In cases of this kind the immediate object of inquiry is whether the suspension of reason arising from sudden passion continued from the time of the provocation received to the very instant of the mortal choke given, or if on legal presumption there was time or opportunity for cooling, the killing will amount to murder, as being attributable to malice and revenge rather than to human frailty." And, again, as to the question of malice presumed, Russell says: "If without adequate provocation a person strikes another with a deadly weapon likely to occasion death, although he had no previous malice against the party, yet he is presumed to have had such malice at the moment from the circumstances, and he is guilty of murder." I do not know, gentlemen, that it is necessary for me to now occupy your time at greater length; but I probably may not elect to avail myself of the privilege of addressing you again. I won't ask you to give the evidence attention — I know you will do that, — but I ask you to give a verdict strictly upon the evidence. I make this special appeal to you because my experience in homicide cases in this city, though it has not been long as Crown prosecutor, has really led me to think that juries do not realise the enormous gravity of the offence. If you open a door of this kind, you cannot tell where it will close. It is not a case where your sympathies can be appealed to. It is an unpleasant task for any jury to have to deal with a case of this kind. Some aspects of it are very sad indeed, but you cannot take that into consideration. You have to do your duty in that box just the same as you may have to do it upon her Majesty's service elsewhere. You have absolutely to do your duty without fear, without favour, without sympathy; simply your plain duty. You have certain privileges; you can add any recommendation you think fit; but your plain duty is to give a verdict in strict accordance with the evidence. I trust, gentlemen, you will do so, and for my part I shall endeavour to put the evidence before you as plainly as possible, and then my duty is ended — I have discharged my duty to the Crown, — and after his Honor has summed up the case for you, you are the sole judges of fact; then the responsibility is upon your shoulders. .
Evidence was then taken.
Joseph Osmond Closs (medical practitioner) gave evidence as to having been called early on the 29th of September by telephone to the house of deceased. After knocking at the front door for a short time, he opened the door and walked in. He met young Mr Fogo, and then went upstairs, where he found the body of deceased lying face downwards. The body was nude, with the exception of the short flannel singlet produced. Witness then repeated the evidence previously given by him as to the post-mortem appearance of the body. The cause of death was hemorrhage from the wound on the left side of the chest, and that wound could have been caused by the knife produced. The accused was very much excited. She first said it was all the fault of the witness, as he should have told her husband tp stop drinking. She also said, "I did it in self-defence. If I had not done it I would have been a corpse myself." She repeated this several times in the bedroom, and said, "I'm prepared to take the consequences. Had I not done it I would have been lying a corpse there myself instead of him." Accused went into the sitting room while the body was lying at the door, and in doing so had to step clear of the feet of the deceased. When in the parlour, accused said: "I hit him on the head with a stick and did it." Witness was of opinion that the blow on the head could have been caused by the silver-mounted stick. The blow must have been struck from behind, unless it was a left-hand blow. It might have been produced when deceased was lying in bed facing the striker. The wound on the head was, in his opinion, caused before the deceased was stabbed. The blow would probably stun deceased, and leave him in a dazed condition. When stabbed, the deceased was probably in an upright position.
Cross-examined by Mr Sim: The blow went slightly upwards, and was a simple stab. The weapon taking the course it did, met with no hard tissues at all, and would not require a great deal of violence to drive it in the distance it went. It was just a possibility the blow on the back of the head might have been struck while deceased was stooping down snibbing the door of the bedroom. That was more probable than for the blow to be struck on the bed. The dazed condition caused by the blow on the back of the head would be only temporary, and would not cause insensibility. Want of sleep was very injurious to the brain, and want of sleep and worry might have produced a very unfortunate mental condition. He concurred in the opinion expressed in Coulston on mental diseases "that a sufficient amount of fatigue and exhaustion from want of sleep will produce a condition in almost any brain that is closely allied to that of the monomaniac." Mrs Fogo was in a state of great excitement, having been through some great ordeal, and collapse would follow that. He also agreed with the quotation from the same authority: "All acute forms of mental disease are liable lo be followed, after the acute symptoms have passed off, by a condition of mental torpor and a kind of mental enfeeblement. But this differs essentially from the true secondary dementia. There is in it to a large extent the mental characters which I have described as being those of stupor, and above all, it is curable. The patients are inattentive, confused, lethargic, and torpid. The brain reflexes are dull. The energising of the, convolutions is slow and confused. All the higher reasoning and reflective powers are in abeyance for the time being." In a mild degree that would follow a state of great excitement. To the unskilled observer the condition would appear to be simply that of calmness.
Re-examined: He did not think the excitement of accused had passed away. She did not seem to realise what she had done. She said to him: "He'll come to life again all right." A person suffering from homicidal insanity might not be in a state of mental excitement, and if talked to would talk rationally. 
Andrew Lees Fogo (son of the deceased) deposed that he saw his father at about 5 o'clock on the 28th of September last. His father was morose, and when in liquor was obstreperous, violent, and would not brook contradiction. He was also very hard to get on with when recovering from the effects of liquor. On the slightest provocation he would fly into a passion. When recovering he would not speak for hours. Taking his character, all through, he was very selfish, and was at times violent towards witness's mother. On the whole he was very, very hard to get on with. When intoxicated he was extremely restless. Several hours of each day he would sleep in the day time. Deceased was a man who would brook no opposition — selfish, morose, obstinate, intolerant of reproof. 
Mr Fraser: Did he not assist you financially just before this? — Yes.
To a large amount? — To a considerable amount. Fifteen hundred pounds? — No. Twelve hundred? — No. 
Mr Sim : I do not think my learned friend is entitled to go into this.
Witness: I will tell you — it was £1000. I have nothing to hide. 
Mr Fraser: Did he do that without any reluctance? — He did not advance any money, he became security for it — no money passed.
You had not made an appeal to him before this? — You mean before the accident?
I do not know whether you call it an "accident." Before what happened on the 29th of September. — No I made no appeal.
Witness continued, he slept in the room marked on the plan, and after he had let himself into the house that night he noticed his parents sleeping in bed, and went to his own room. He said good night, and, getting no answer, supposed they were asleep. Ordinarily both would answer if awake. At about 6 o'clock he was awake for a little, and was reading a stock list. He heard the town clock chime, counted the striking of the hour, and then feel asleep. Next he was aroused by hearing his mother's voice call "Andrew." It was a voice of distress, and his name was mentioned twice. He jumped out of bed, and walked quickly to his parents' door. He found the door snibbed and the key on the outside. He beat with his open hand on the panels of the door, and while doing so his sister came. He called out open the door, and beat in the panels with his fist, and then burst the door open, almost falling into the room with the force. He noticed his father standing, or leaning in an upright position against the wall near the washstand, and put his arm around his father, about halfway down the body. His mother was standing four or five feet away. 
His Honor: What time elapsed, can you tell, between the first call and the time you got into the room? — It appeared to be a very long time, but I should think it would be about a minute or a minute and a-half. I jumped out of bed on hearing my name called first.
Witness (continuing) said: His mother was in the centre of the room, between the bed and the wall, with the knife (produced) in her left hand. She was further in the room than his father was. Witness grasped her left wrist with his left hand, and as he did so the knife dropped to the floor. She said — witness was not quite sure of the words: "If I had not struck him he would have killed me," or words to that effect, and added that she had done it in self-defence. The knife was usually kept downstairs on a dresser in the kitchen. The silver-headed stick (produced) was lying on the floor in front of the dressing table, and the white-handled knife was on the dressing table, close up to the window ledge. This knife had been used to ease the windows, which had been newly varnished. His sister must have entered the room immediately behind him; he first noticed her presence before he had eased his father down. When his father's body fell to the ground it struck the edge of the bath, inflicting wounds on the side of the face and nose, but not on the back of the head. His mother was wearing a red dressing gown, which she was in the habit of putting on when she went downstairs. As a rule his father slept only in a singlet — except when he was travelling. When witness said, "You have killed him," his mother replied that he was making a mistake; that his father was not dead. She kept repeating that she did it in self-defence. Witness, himself did not think that life was extinct, because when easing him down he felt his heart beating, and up to that time had not seen any blood. At his mother's suggestion he went downstairs to telephone for Dr Closs. About three minutes elapsed. When he returned upstairs he saw blood oozing from between the body, and the oilcloth on which it lay. He then found that his father's heart had ceased to beat. He went back to the bedroom, and saw that his mother was very excited. She appeared to be mad; her eyes were starting out of her head. He then noticed on the dressing table a square bottle of gin and a glass. He picked up the bottle — merely out of curiosity — and noticed that it contained some spirits. His mother, who was shaking very violently, asked for some of the gin, and he gave her the contents of the bottle. On Dr Closs's arrival he met his mother on the landing, but he did not overhear what passed between them. She walked to the police station, because a cab was not available at that early hour. She had some tea and bread and butter at Miss Fogo's suggestion before she set out, but she did not eat very much. It was a common occurrence for gin or whisky to be in his father's room. His mother was a temperate woman. He had seen her under the influence of liquor, but she was never habitually so. She took some drink when she was worried, and it quickly took effect on her.
Cross-examined by Mr Sim: Witness said his father was 65 four days before he died; his mother was two years younger, and they had been married 30 years. The deceased would fly into a violent rage without provocation, and he was worse when in liquor. He had known his father to be drunk at half-past 6 in the morning. Drink had to be kept for him inside the house, or he would go out for it. His mother used to dole out drink to his father, and she frequently remonstrated with him. He had known his mother to go on her knees and plead with his father to stop drinking. She was greatly worried because his father's drinking habits were getting worse. On the previous Thursday she had told witness she had had no sleep for eleven nights. For four of five days of the week his father would wake at 1 o'clock in the morning, and "keep the gas burning." His mother could not sleep with the light. He had heard his father threaten his mother several times. His mother was always patient with his father; he had told her, he did not know how flesh and blood could stand it. In April he had urged his mother to separate from his father. He had done so before. On the last occasion his mother "went" for him because of the exposure it would bring on the family. His mother had always been affectionate and self-sacrificing, and was very fond of her husband notwithstanding his misconduct. He was quite sure it was his mother's voice he heard calling "Andrew." Both his father and his mother were righthanded persons. The black-handled knife was usually kept in the kitchen. Witness was in the kitchen on the Friday night. He looked for fruit, then took a biscuit and went to the dresser for a knife, and got one there. The black-handled knife was not in its place when he went to the dresser. He was certain of that; the steel was there, but the knife was not. That would be about a quarter to 12 at night. His mother could not easily walk downstairs, putting both feet on each step. She walked very heavily, and he used to hear her go down. He was a light sleeper, and slept with the door of the room open. He had often been awakened by his mother going downstairs. He did not think it likely his mother could have gone downstairs at about 7 in the morning without wakening him. He was certain his mother had no drink that morning except the gin he gave her.
Re-examined: When he said that he would have heard his mother if she had gone downstairs, he was not overlooking the fact, that it was raining. When he went to the kitchen to get something to eat that night he came home, he remembered dropping some sugar where the knife and steel were kept, and that was when he noticed the knife was not there. The reason he said nothing about this in the lower court was that he was not asked about it. He was very much dazed at the time of the other proceedings, and he had recollected things, more clearly since. He and his sister were the only two children, and their mother was much the more affectionate of their parents.
Dr Closs (recalled) stated, in reply to Mr Fraser, that from such a wound as deceased had received he would not be able to remain on his feet for a full minute, even though he were supported by the wall.
To his Honor: Perhaps in a couple of minutes the heart would cease to beat from a wound of the nature he received.
Georgina Agnes Fogo, daughter of accused, said that she went to the theatre on the Friday night. When she went out her father was in bed and her mother in the sitting room. When she returned they were both in bed. She went to the bedroom and asked her mother if she wanted anything. She replied "No." She was reading in bed, while her father had his head covered up. Her mother asked him if he wanted the light out, but he shrugged his shoulders and did not reply. Her mother then told her to go to bed. She slept in the next room, divided by a thin partition. She could not hear what was said unless she listened very intently. She did not near her brother come in, or any further talking. About five minutes after she left her mother she was called back to put out the light. Witness then went to bed, and slept on until aroused in the morning by hearing a voice call "Oh, Tom!" Then she heard "Andrew! Andrew!" and "Georgie!" They seemed to her to be said all in one breath, and very quickly. It was in her mother's voice. Witness jumped out of bed and went to the door, getting there the same time as her brother. He was beating on the panels, calling out, "Open the door." Her mother was standing in the centre of the floor, and her father standing against the wall near the wardrobe. She saw her brother go to her father, and seize her mother's left hand. Witness called out, "Oh, mother, what has happened?" She replied, "I did it. If I hadn't done it I would have been a corpse myself." Her mother was fully dressed, having her dressing gown on over her white clothes. Witness got her the bread and butter before she went away. She took very little, and drank some tea. She agreed with what her brother said about her parents' habits. She had had occasion to take the black white-handled knife upstairs on Friday. She did not take it down again, and she remembered this fact after thinking over something suggested to her in the Police Court. 
To his Honor: The knife was taken upstairs to cut a piece of her father's birthday cake.
Cross-examined by Mr Thornton: She cooked the dinner on the Thursday, and the knife was used then. On Friday morning she stayed in to cook the dinner again. Her mother asked her if she was going out that afternoon, and she replied, "Yes." She also told her mother that she was going to take a piece of cake to her friend, Miss Downes, and it was then that she used the knife. She took the knife from the dresser. It was about 1 o'clock when she went upstairs, and she cut the cake on the little table in her mother's room. Witness afterwards went into her own room to dress, and went back there for the cake. She did not take the knife down with her. She had a skirt that was difficult to fasten, and she went down to get her mother or the girl to fasten it for her. She did not want to go back upstairs, so she took everything she wanted down with her — her jacket, gloves, etc., and the piece of cake. She was going to take the knife, but she had too many things in her hand. When she got downstairs her mother was mending a curtain. They had some tea and cake, and then she got ready to go out. She did not go to see Miss Downes as her mother asked her to go some messages up-town. She also called on a friend in Moray place. On the day of the inquest she felt a good deal confused. Her mother and father were both right-handed. Her mother always tried to humour her father, and tried to get him to eat something when he came home intoxicated. She repeatedly asked her father not to have drink in the house. Witness had asked this, too, but he insisted on it. Sometimes he locked them out of the house - when they had been out for a holiday or out late, and they had to get through the sitting room window. When they got in he would laugh at them, and threaten to do more someday. On the Friday night she heard her mother, about 6.30, tell the girl to stay overnight, as there was a big washing to do next day. Afterwards, however, she told the girl she need not come till the morning. Latterly her mother was afraid of her father, and witness was afraid, too, sometimes. Her mother used to say that she would have to get someone to stay with them while her brother was away. The sticks were kept near the bed, and her father used the larger one to knock on the floor to wake up the girl with. She knew that her mother had been suffering from sleeplessness and used to say that she thought sleep had deserted her. Her mother owned a house in Frederick street. 
Jane Coates, matron at the police station Dunedin, said that it was her duty to visit the female prisoners, and on the Saturday morning, accused was under her charge. She appeared to be very calm, and was very talkative. She spoke of the death of her husband, and while she was having her dinner she put her hand to her head, and said: " What made me do it?" She said: "What a very dreadful thing it was to do," and that "she had done it in self-defence." Witness asked how the knife came to be in the room; and she replied: "I went to the kitchen for it; it is the knife I use for cutting the meat. Witness warned her several times not to talk about the affair, and she replied: "I know I am all the time convicting myself."
Cross-examined; by Mr Sim: The warning had been given her before 11 o'clock, and was repeated from time to tine. Witness agreed that it would be a most improper thing to get information from her in this way, and when she put the question: "How did the knife get into the room?" she just did it because she was wondering in her own mind how it happened. She had no idea that she would be required to give evidence on the point. Witness admitted that she had not a very good memory. Accused spoke to her after the inquest, asking, "Are you quite sure I used the word 'I '? I thought I said 'he' went to the kitchen.m
Alexander Sligo, bookseller, said that he had known accused and deceased for over 30 years. He remembered seeing accused in his shop on the Thursday. After a little conversation she told witness she wanted to speak to him privately, and then said that she desired him to make her a promise. "If anything happens to me," she said, " and I die suddenly, I want you to see that an inquiry is held and a post mortem made." Witness smiled, and said: "Dear me, Mrs Fogo, that's a strange request. Why do you make it?" She replied: "One never knows. I have always had a dread of being buried alive." Witness made some halfscoffing remark, and she said: "Well, we never know; I might be poisoned." Witness then said: "Well, if it relieves your mind, I will make the promise, and take care to fulfil it," or words to that effect. Accused had not always been temperate latterly. 
Cross-examined by Mr Sim: Her request was made in all seriousness. Witness knew that she had been very patient with deceased. 
Dr Emily H. Siedeberg gave evidence that at the request of the police she made an examination of the accused. She found a bruise on the side of the left upper arm. On the little finger of her right hand there was a small scratch about half an inch long. It would be caused in a variety of ways: It might have been caused by gripping the knife hurriedly. 
Cross-examined by Mr Thornton: Witness examined accused twice. She saw this cut in the police court, when counsel called her attention to it. The only reason she could suggest that she did not notice it the first time was that the light was bad. 
Sergeant Gilbert gave evidence similar to that given by him in the lower court. 
Cross-examined by Mr Sim, he said he had received a letter on November 23 from Mr Thornton stating that it had been ascertained that Mrs Fogo's servant could give important and relevant evidence regarding the use of the knife involved in the case on the Thursday and Friday prior to the sad occurrence. He therefore deemed it his duty to advise witness thereof, in order that she might be called to give evidence. Witness, continuing, said that he had got a statement from the girl about the knife. He did not know if she was in attendance as a witness that day or not. The statement was to the effect that she remembered that the knife had been taken away by Miss Fogo. 
This concluded the case for the Crown. 
The Crown Prosecutor, in reviewing the evidence, said: May it please your Honor and gentlemen of the jury, you have now heard all the evidence given that I outlined in my opening address. It is only necessary for me to say a word or two to you on that evidence. First, I notice that some consideration has been laid on the fact that when. the accused was discovered with the knife she was holding it loosely in her left hand. It is only necessary for me to point out to you that nothing would have been easier for her and more natural than to have changed the grip on the knife from the right hand to the left, afterwards. Next, you heard the evidence of the Crown witnesses as to their recollection of the whereabouts of the black-handled knife. They were the Crown witnesses, and I do not seek to impugn their evidence. But it is only right I should point out to you that, standing as they do in the relation of children towards their parents, as far as the accused is concerned, and admitting that they have flogged their memory to bring certain instances to light that they themselves would naturally wish should be brought to light, I think, gentlemen, it is highly probable there will be a sort of unconscious mental effort going on, and these recollections will be influenced accordingly. It is not to be lost sight of that these statements were not made at the preliminary inquiry. So much for the knife incident. I would just remind you of the point on which Miss Coates gave her evidence. Miss Coates gave her evidence very fairly. I should be sorry that you should think that Miss Coates was used to entrap the accused. Nay, she checked the accused from speaking freely, and she had no idea that she would be required to divulge the answer to her question in a court of justice. It has also been suggested that the accused had been suffering from want of sleep. You have heard the evidence on that point, and you will be told to form an opinion on it. It is a very natural defence to a charge of this kind. Indeed, it is the only defence available. It is, however, my duty to point out to you that the onus of proving that defence lies on the defence subject to the view his Honor may take on the point. They have to prove it to your absolute satisfaction before you can avail yourselves of any such plea. If you are left with a doubt, the accused does not get the benefit of that doubt: you must be satisfied absolutely of the strength of the plea. Counsel here quoted from Russell on the question, and continued: A question of this kind is a highly intricate question. There are many men who tell us that every man who commits a crime is mad. That may or may not be the case; but it is only one class of insanity that excuses crime.  I am not called upon, as I said before, to show you any motive, but if you like to speculate as to motives you have the evidence of the children. The state of things in this home may or may not have been as bad as the picture my friend drew of it — the mother, who was emphasised as a self-sacrificing mother, frightened also for her own safety. I think that a more reasonable suggestion than insanity is this: that, seeing the condition of things as they were, and possibly nervous of her own safety and that of the children, she determined to end it with her own hand, by taking her husband's life. She has counted the cost; she has thought it well out; she takes no undue risks herself. She harps on the statement, "I did it in self-defence," and "If I had not done it he would have killed me." How does that square with the facts? You have got the idea of it all beforehand: at the same time taking no risks, and availing herself of every possible defence. She has reckoned the cost, and her calmness after the event may well be accounted for by the fact of a feeling of relief having come over her after the thing is done, and now she is face to face with the consequences. If you are satisfied in any way that this woman was insane, God forbid in such a case that you should convict. If, on the other hand, you consider the evidence conclusive, and you let yourselves be swayed idly by sympathy, you can blame yourselves — not me — for the possible ultimate consequences to the community. 
Mr Sim asked if his Honor intended to sum up that, night He would occupy an hour in addressing the jury, and would be prepared to go on if the case would finish before the court rose.
After a discussion, his Honor adjourned the court until 10.30 this morning, and the jury were locked up for the night.
The trial of Sarah Fogo for the murder of her husband, Thomas Fogo, was resumed in the Supreme Court on Friday morning before his Honor Mr Justice Williams and a common jury. 
The Crown Prosecutor conducted the case, and the accused was defended by Mr W. A. Sim and Mr J. R. Thornton. Mr Sim, addressing the jury for the defence, said: I am certain it requires no words of mine to impress on you the responsibility that rests on you. in the present case, and also the terrible importance to the accused of the result of your deliberations. I propose, therefore, gentlemen, to proceed at once to the consideration of the evidence. My learned friend seemed yesterday to be terribly afraid that you were going to disregard the solemn oath which you have taken, and that you are not going to decide the case according to the evidence at all. I am not going to insult you, gentlemen, by suggesting for one moment that you will decide this case in any way other than according to the evidence, and any arguments I shall address to you during the course of my speech will be founded on the evidence, and on the evidence alone. Now, the case, as presented to you by the Crown, is that the accused deliberately murdered her husband. To put it as my learned iriend put it on another occasion, "it was a premeditated crime, deliberately carried out and relentlessly executed." These were the words which he used on another occasion, and although he was not quite so rhetorical in the present case, that, in substance, is the view which he now asks you to take — that this old lady deliberately murdered her husband. That being the theory of the Crown, I shall discuss it upon the evidence, and shall put before you the view we ask you to accept for the defence — namely, that the blow which killed the deceased was struck by the accused during the course of what she believed was an attack on her own life. If the blow was struck under these circumstances, then his Honor will tell you it is excusable homicide, and the accused is entitled to an acquittal at your hands. My learned friend puts the case to you as one of murder or nothing. I accept that position, gentlemen. I admit...
Mr Fraser : Pardon me
Mr Sim: My learned friend put it to you, gentlemen, that in this case it was impossible for you to come to the conclusion that it could be manslaughter — that it was murder, a clear case of deliberate murder and nothing else. The case therefore will resolve itself into this: Is it, as my learned friend says, a case of deliberate murder, or is it, as we shall submit to you, a case of excusable homicide? Manslaughter is excluded from your consideration altogether. It is a case of murder or of excusable homicide.
His Honor: I do not know, simply because the Crown prosecutor has not put the possibility of manslaughter, that, therefore, from the evidence the jury are not justified in finding a verdict of manslaughter.
Mr Sim: I shall submit to the jury, your Honor, that that is the proper view to take of the evidence. I wish to put it to the jury that it is either excusable homicide or murder.
His Honor: Very well.
Mr. Sim: That is the view which the Crown took of it, and I am supported in putting it to the jury in that way by the fact that my learned friend the, Crown prosecutor, after considering the case carefully — probably for some months, — comes to the conclusion that that is the only way in which it can be put. Very well, gentlemen, let us take this theory of murder, and see how it is borne out by the evidence. Now, when you are told, gentlemen, that an old lady, who has led a blameless, upright life, suddenly murders her husband, you naturally ask what was the motive for such a deed. My learned friend says there is no necessity for him to show any motive for such a deed. But you must be satisfied, as reasonable men, that there was some motive before you can come to the conclusion that this was a case of murder. My learned friend did not indicate any motive; he did not put it before you that the plain motive, according to his view of the case, was that she wanted to get rid of her husband; but that is what he has suggested from time to time. Now, I submit to you that that is really absurd. If because this old lady gets tired of the drinking habits of her husband is it likely she is going to kill him? What was easier for her if she did get tired of the life she was leading than for her to separate from her husband. She had property of her own; her husband's habits were such that she would be entitled to a separation, and to insist upon his maintaining her, and as my learned friend pointed out in his opening, she would even have been entitled to get a divorce from him, and to insist upon his maintaining her. So that if the motive is as my learned friend suggests and that is the only one possible, how inadequate it is, and how absurd it is to suppose that this old lady, who has been the very model of patience and longsuffering, should suddenly turn round and kill her husband because she had got tired of his drinking habits. I submit that it is simply an insult to your intelligence to suggest that that would operate as a motive in the mind of this old lady. And what does the evidence show? It shows that she was exceedingly patient with her husband. That is the evidence of her children, and on that point they are corroborated by Mr Sligo, who tells you that she was a model wife. Mark you, gentlemen, the idea of separating from her husband was suggested to Mrs Fogo by her son on more than one occasion. It was suggested so recently as April last, and how did she receive th suggestion? It was indignantly repudiated; she said she would not separate from her husband on account of the disgrace it would bring on her family. That is the reason she gives in April last for refusing to separate from her husband, and yet the Crown ask you to believe that in September, because she is tired of her husband's drinking habits, she deliberately plans and executes his murder. I put it to you that such a suggestion of motive is wholly absurd, and absolutely inadequate to account for this deed, if it is, as the Crown suggests, a murder. The theory is that this old lady, who had been bearing patiently for so many years with her husband's drunken habits, and was unwilling even to legally separate the ties which bound her to her husband, suddenly changed and ruthlessly severed these ties with a butcher's knife. That is what you are asked to believe by the Crown. Then, gentlemen, if this was a deliberate and contrived murder, would it have been carried out in the way in which it was? What you are asked to believe is that this old lady deliberately plans to murder her husband, kills him with a knife, and then, the very moment she strikes the blow she summons her children as witnesses of the deed. Is that the way I ask you in which murder is carried out? If she wanted to get rid of her husband, in how many other ways could she not have got rid of him without risk — with practically no risk of detection. If this was deliberate murder she must have known perfectly well the result would be that she must suffer death as a felon. I put it to you that had she wanted to kill her husband she could easily have suffocated him in one of his drunken sleeps. She might have poisoned him. What risk would she have run? He was a man whose organs had all  degenerated from chronic alcoholism. Supposing she had administered poison, and there had been an inquest, would she have run any risk? Supposing she had smothered him in his bed in one of his drunken sleeps, would she have run any risk? Supposing, as my learned friend suggests, she wanted to murder her husband, would it have been possible for her to find a worse way of carrying out her purpose, or a more certain way of securing her own conviction as a felon?
The learned counsel then referred in greater detail to the evidence, and, commenting upon it, said his learned friend would ask what about the knife? Well, what about the knife? — for which, according to Miss Coates's statement, Mrs Fogo said she went down to the kitchen. Now, if the case turned on Miss Coates' recollection of the exact words, or if the whole case turned on those words, he ventured to think that the jury would hesitate before they would convict the accused; but fortunately it would not be necessary to consider the question of whether Mrs Fogo used those words or not, because it was clear from the evidence that the accused's mental condition at that time was such that anything she said could not be relied upon at all. She was then in such a state of mental enfeeblement and confusion that the jury could not rely on what she said. He would refer presently to what Dr Closs had to say on that subject. The evidence showed that if Mrs Fogo had made a statement of that sort it was clear that she was mistaken. It was clear the black-handled knife was not in the kitchen on the Saturday morning, but was in the bedroom where Mrs Fogo and her husband were. Now, let them take Miss Coates's statement and see what it amounted to. He put it that his learned friend had strained the statement in a way that was wholly unjustifiable. The statement amounted to this, that accused was asked where she got the knife, and she said she went to the kitchen for it. What was the theory built upon that? That Mrs Fogo must have struck her husband on the head with the stick, and after doing that went down to the kitchen, got a knife, and came back and stabbed her husband. But he (Mr Sim) asked: Did Miss Coates's statement justify that? Did Mrs Fogo say when she went for the knife? Was it not perfectly consistent with that statement that the knife might have been brought up the night before? It was clear that the Crown had attempted to build far more than they were justified in doing. What was the evidence as to Mrs Fogo's mental condition when this statement was supposed to have been made? Dr Closs told them that she was, when he arrived, in a state of tremendous excitement. Her children described her as being very excited, her eyes standing out of her head, her hair dishevelled, her body trembling, and her teeth chattering. That was her condition, and it showed what a highly nervous state she must have been in. Then Dr Closs told them that after such a state of high nervous excitement came a time of collapse. The doctor agreed with the passage from Coulston which read: "The parties are inattentive, confused, lethargic, and torpid. The brain reflexes are dulled. The energising of the convolutions is slow and confused. All the higher reasoning and affective powers are in abeyance for the time being." That, Dr Closs said, was the correct description of a person in a state of collapse after a period of high nervous strain, and that was the condition in which Mrs Fogo was when she was said to have made this statement to Miss Coates. What did Miss Coates say herself about Mrs Fogo? She told Sub-inspector Kiely when she reported the conversation to him that the woman must be mad, and what better evidence could they hays of accused's condition than the conclusion of Miss Coates herself formed — that the old lady must have been mad when she talked about the trimmings for her bonnet or something of that sort. He put it to the jury that that clearly no reliance could be placed on the statement made by her while she was in that condition. If the case simply rested there he would be entitled to ask the jury to say that they would not place any reliance on that statement, but fortunately the case went very much further than that. It was proved to demonstration that the knife was not in the kitchen on Saturday morning, and that Mrs Fogo could never have gone into the kitchen for it, because it was in the bedroom on the Saturday morning. Now, on that subject they had the evidence of Miss Fogo and Mr Andrew Fogo, and also what the girl Ethel Canter told Sergeant Gilbert. He would have something to say presently about the conduct of the Crown with regard to what the servant girl, Ethel Canter, could have stated to the court, but he would first point out how clearly Miss Fogo related all the events of the Thursday and Friday. Miss Fogo told them how she was engaged on the Thursday, and how she took the knife up to her mother's bedroom on the Friday afternoon for the purpose of cutting some cake — some of her father's birthday cake. She told them everything in a way that he felt sure must have impressed the jury of her truthfulness. She said she left the knife upstairs in the bedroom because her hands were full and she was not able to carry it down again. Then they had the evidence of the son Andrew, who went into the kitchen between 11 and 12 o'clock on the Friday night when he came home. He went to the dresser and opened the drawer for the purpose of taking the knife out, but noticed that the steel was there but not the knife. His attention was drawn particularly to that part of the dresser because he spilt some sugar there which he brushed off with his handkerchief. That was an exceedingly circumstantial account of the way in which Mr Andrew Fogo observed the absence of the knife, and his learned friend said he did not impugn the evidence of the Crown witnesses. Unless the jury came to the conclusion that the story told by Miss Fogo and Mr Fogo about the knife had been invented they must believe that the knife was not in the kitchen on the Friday night; that it had been taken upstairs by Miss Fogo that afternoon and left in the mother's bedroom, and was there on the fatal morning. The court knew that the attention of the Crown was drawn to the fact that Ethel Canter could give evidence in connection with this knife. Sergeant Gilbert interviewed her, and the statement he got from her was to the effect that she remembered the knife being taken upstairs by Miss Fogo on the Friday afternoon, and that it was not brought back again. The Crown were in possession of that evidence, and why did they not call Ethel Canter? He would tell them. Because the girl's evidence would have utterly destroyed the whole foundation of the case for the Crown. The whole case for the Crown rested upon the truth of that, or supposed, statement made by Mrs Fogo to Miss Coates, and as it had now been shown that the knife was not in the kitchen but in the bedroom on the Saturday morning, then the whole case for the Ciown went to pieces. That was why the Crown had not called Ethel Canter. But whatever the reason was, he (Mr. Sim) submitted that it was a most improper thing not to call that girl. It was the duty of the Crown in every case to call every person who could throw any light on the charge against the accused person. It was not the duty of the Crown to try and snatch a conviction against an unfortunate accused. It was their duty to lay before the jury the evidence of every witness who could throw any light on the subject, and that was their duty not only in ordinary cases, but also in capital cases. How had they abused that duty by refusing to call that girl, who could have corroborated so strongly the evidence of the Fogos as to the place where the knife was. So much, then, for the knife. Then there was this further difficulty about accepting the theory of the Crown: It did not account for the position of Fogo when the son got into the room. If Mrs Fogo struck her husband with the stick, and then went downstairs to get the knife, what was Fogo doing all the time? How did he come to be in the position where he was seen, standing behind the door? The Crown prosecutor could not explain that on his theory of murder. On the other hand, the explanation which he (Mr Sim) would place before the jury would show exactly how Fogo came to be behind the door. So much for the theory of the Crown. He (Mr Sim) had dealt with that theory, he had shown the entire absence of motive, and he ventured to say that unless something more could be proved to them than this theory, which was merely a suggestion, they would certainly hesitate to convict the accused of murdering the man with whom she had lived for 30 years. It was absurd to suppose that any sane person desiring to commit murder would carry it out in the way Mrs Fogo was said to have committed this deed. Then there was the difficulty about the knife. The jury must come to the conclusion that that part of the Crown's case had failed. And then there was the difficulty that the Crown's theory did not account for Fogo's presence just by the door. Continuing, the learned counsel said: I propose shortly to put before you the way in which we say this event must have happened. I wish to put it to you that this is the way in which it must have happened. It is the way in which the accused said it did happen. It may be suggested that if Mrs Fogo could give any explanation of the way in which it happened, she ought to have gone into the box and have given that explanation. But I put it to you that an explanation that is according to facts, the explanation which the facts themselves afford, would not obtain any additional sanction by reason of the oath of the accused. What would be the sanction of an oath to a person faced with the gallows? So I wish to put this explanation to you in two ways — as the explanation which the facts themselves afford of the sad event, and the explanation which the accused herself gives of that event. Before I propose to deal with the events of that fatal morning, I want to draw your attention to what Mrs Fogo's mental condition must have been at this time. Her mental condition has a very important bearing on this case. Mrs Fogo you have been told was worried because her husband's drinking habits had been getting worse. She had remonstrated with him in vain, and she had got Mr Sligo to remonstrate with him. But in spite of this his drinking habits got worse and worse. This was giving her constant worry and annoyance. Then you have the fact that his method of sleeping during the day and lying awake at night had the effect of keeping her awake, and making her suffer from sleeplessness; also her statement to her son made on the Friday before the death of Mr Fogo, that she had not had any sleep for 11 nights. You may imagine for yourselves, gentlemen, what the effect would be, and you know from the passage I read you from Clouston yesterday what the effect of such a condition would be. Clouston said, and Dr Gloss agreed with him, "that a sufficient amount of fatigue and exhaustion from want of sleep will produce a condition in almost any brain that is closely allied to that of the monomaniac." Mr Fogo had threatened his wife, and had actually used violence to her. The effect produced on her mind was this: that she was afraid that he was going to do some violence to her, or kill her. It is clear from the evidence of her daughter and son that that is the fear she had in her mind. She was afraid when her son was away of being left alone, and spoke of this to her daughter. Then remember that most significant conversation with Mr Sligo. She made to him in the most serious way a request that if she died suddenly he would have some investigation made into her death. Her object was twofold: She was afraid of two things — of being poisoned, and she was afraid on the other hand of being buried alive. Now, from whom would this danger of sudden death come? It is clear from other evidence that she expected it at the hands of her husband. I do not suggest for one moment that Thomas Fogo had any idea of murdering his wife. Unfortunately his conduct towards her had produced in her mind the impression that he had some design on her life. This is clear from the evidence of the son and daughter, and from the evidence of Mr Sligo. Remembering that this is the mental condition of the woman, let us come to the events of the Saturday morning. You have first of all the fact that Mr Fogo's birthday had been on the 24th. His celebrations of it had begun on the 24th, and were in full swing on the Friday. He comes home intoxicated on the Friday night, and he would, of course, have some more drink during the night. His son tells us that he used to commence drinking in the morning. We have the bottle of gin in the bedroom on the Saturday morning, and you may take it that he had some drinks from the bottle. Then Mrs Fogo got up from bed: the evidence was that she wanted to get on with the washing. There was a big washing that morning, and she got up early for the purpose of having it carried out. This is the lady who is supposed to have in her mind the deep design of murdering her husband! She gets up and dresses herself. While she is dressing herself her husband asks for another drink of gin. Now, Mrs Fogo as you know doled out the drink to Mr Fogo, and she endeavoured to restrict the consumption of it by her husband as much as possible. She refuses to give him drink, and he springs out of bed. You were told that he was a quarrelsome man, and easily provoked into a violent rage. He gets out of bed and seizes the knife lying on the dressing table, and he says: "I'll show who is master in this house: I'll cut your throat!" in order to frighten his wife. He goes and snibs the door with the knife in his hand. Mrs Fogo then seizes the stick: it stands on the bedside, and she strikes him a blow on the back of the head, while he is snibbing the door. Dr Closs said that was exactly how such a wound as Mr Fogo had on the back of his head might have been inflicted. The Crown Prosecutor tried to make it out that this blow was struck in bed, but Dr Closs said it was more probable that it would be struck while he was engaged in snibbing the door. The blow dazed him for a moment; he turns round with the knife in his right hand. He takes a step or two from the door, and his wife sees him with the knife in his hand. She cries out, "Oh, Tom!" and this is the cry her daughter hears. She reaches towards him to get the knife out of his hand. She wrests the knife from his right hand with her left and strikes the blow. She is in a state of frenzy: she thinks this man is going to kill her — I do not suggest he would have done so — it was one of his drunken freaks, and he was going to frighten her. He frightened her so far that she rushed to get the knife from him, and struck the blow without realising what she was doing. The moment the blow is struck she releases her hold of his hand and steps back. There she is with the knife in her left hand — she is a righthanded woman. My learned friend said it was quite easy to suppose that she changed the knife from her right hand to her left. Is that likely? Would she think of such a thing as that? I think such a suggestion is simply childish. Is not that the explanation: that the husband has the knife in his right hand and she wrests it from him with her left? That is the story which I submit to you in explanation of these facts, and you have to choose between that theory in explanation of the facts and the horrible suggestion that this woman deliberately murdered her husband in the clumsy way in which the Crown suggests she carried out the deed. These are the two theories and explanations which you have to consider, and if you come to the conclusion (as, I venture to think you will without much hesitation that this is the true history of the matter) that is how this sad event occurred, then you will have no hesitation in finding, as his Honor will tell you, that it is a case of excusable homicide. If Mrs Fogo, although mistaken in the belief that an attack was made on her, gets into a state of frenzy produced by that belief, and wrests the knife from her husband's hand, and strikes the blow, it is excusable homicide. It might be suggested that when she got the knife from him, why strike the blow? Why not throw it away? But you are not to measure her conduct by the standard of a rational person. You are to remember the state of frenzy she is in. It may be said: Why are there no marks of any struggle. The explanation is clear enough. Because there was apparently very little struggle. Fogo goes to the door and snibs it; she strikes the blow on the head and steps back, and when he comes at her with the knife she advances and wrests it from him. Remember, he has been drinking that morning — that is clear, from the fact of the bottle being in the room. He would be in a fuddled and dazed condition from the effects of the drink and the blow on the head, and Mrs Fogo would be able without very much difficulty to wrest the knife from him. This is the only story that explains all the facts of the case. It is clear that there was no struggle, and so you would not expect to find any signs of one. I put it to you more strongly that this is the story the facts themselves tell. If you accept it, then it is your clear duty to return a verdict of acquittal, for in these circumstances it is a case of excusable homicide. There is a case, Regina v. Rose (15, Cox's Criminal Cases), p. 540, which was tried before Mr Justice Lopes, where it was held that if the accused had reasonable grounds for believing that his act was necessary for the defence of his mother, the homicide was excusable. Counsel quoted as follows: — "The prisoner, a weakly young man, of about 22 years of age, was at the time of the alleged murder, living with his father, mother, and sisters at Witney. The father, who was a very powerful man, had recently taken to excessive drinking, and while in a state of intoxication was possessed with the idea that his wife was unfaithful to him. He had on more than one occasion threatened to take away her life, and so firmly impressed was she with the idea that these were no idle threats that the prisoner's mother had frequently concealed everything in the house which could be used as a weapon. On the night in question the deceased abused and illtreated his wife and threatened to murder her. He seized his wife and forced her into such a position that the daughters seem to have thought he was cutting her throat. The daughters and the mother shouted 'Murder.' The prisoner ran in, fired a shot, according to his own account to frighten his father, and immediately fired a second shot, which caused death in 12 hours. On arrest the prisoner said: 'Father was murdering mother; I shot on one side to frighten him; he would not leave go, so I shot him.' The defence set up was that the case was one of excusable homicide. Mr Justice Lopes, in his summing up, said: 'Homicide is excusable if a person takes away the life of another in defending himself if the fatal blow which takes away life is necessary, for his preservation. The law says not only in self-defence such as I have described may homicide be excusable, but also it may be excusable if the fatal blow inflicted was necessary for the preservation of life. In the case of parent and child, if the parent has reason to believe that the life of the child is in imminent danger by reason of an assault by another person, and that the only possible fair and reasonable means of saving the child's life is by doing something which will cause the death of that person, the law excuses that act. It is the same in the case of husband and wife. Therefore, I propose to lay the law before you in this form: If you think, having regard to the evidence, and drawing fair and proper inference from it, that the prisoner at the bar acted without vindictive feeling towards her father when he fired the shot, if you think that at the time he fired that shot he honestly believed, and had reasonable grounds for that belief, that his mother's life was in imminent peril, and that the fatal shot which he fired was absolutely necessary for the preservation of her life, then he ought to be excused, and the law will excuse him, from the consequences of the homicide. If, however, on the other hand, you cannot come to that conclusion — if you think, and think without any reasonable doubt, that it is not a fair inference to be drawn from the evidence, but are clearly of opinion that he acted vindictively, and had not such a belief as I have described to you, or had not reasonable grounds for such a belief, then you must find him guilty of murder." That, gentlemen, is an illustration of the way in which the laws deals with a case where the person acts in the belief that his life is in danger. In that case the woman's life was in danger. The son honestly believed that it was, and killed his father, and the judge directed the jury that they should acquit him. He was acquitted accordingly. In the present case it must be clear to you beyond doubt that Mrs Fogo was in danger of her life. Her statement to her daughter and Mr Sligo showed clearly that this woman honestly feared that her life was in some danger from her husband. When on this morning he began brandishing this knife about, she at once jumped to the conclusion that the thing she was dreading was about to happen, and that her life was in danger. She then struck the blow which unfortunately killed him. It is clear from what she said to her son and to Sergeant Gilbert that she did not know that she had killed him, and that she did no realise exactly what she was doing. The moment he released his hold she stepped, back, and is standing there when her son comes into the room. Is it not a more rational explanation of the facts than this horrible and monstrous theory of murder which the Crown Prosecutor asks you to accept? It is for you to say which view you will take: whether this is a case of cruel and deliberate murder or the case of an unfortunate woman driven to desperation, and striking a blow which kills her husband. If you have any doubt at all, it is your duty to lean to the accused. Unless you are satisfied that the story which I have put before you is not true it is your duty to acquit accused. Unless you are satisfied beyond any reasonable doubt that this was a case of deliberate and contrived murder, then I say it is your duty to acquit the accused. The Crown has called no direct evidence to show how the deed was done. The only evidence of the blow is the accused's own admission, and that admission from the very first is accompanied by the statement that she did it in self-defence, and, "If I had not done it I would have been a corpse myself." That is what she said to the son, to the daughter, to Dr Closs, to Sergeant Gilbert, and to Miss Coates. That is what she said from first to last. My learned friend suggests that it is all part of the crime: that this woman deliberately plans this murder, thinks the whole thing out, and then expects that she can escape by saying she did it in self-defence. It is absurd to suggest that if this had been a deliberate and contrived murder any sane person would have dreamed of carrying it out as the Crown says it has been carried out. The only reasonable explanation is that this blow was struck in the course of what accused thought was an attack on her own life. If you come to that conclusion it is your plain duty to acquit the accused. I feel very much my responsibility in addressing you m this case. I have endeavoured to put before you as clearly as I can the view we take for the defence. It will be for you to determine the issue of the guilt or innocence of the accused. You will remember, gentlemen, the terrible importance to the accused of the result of your deliberations. It will rest with you, gentlemen, to say whether she is to suffer an ignominious death or whether she is to be set at liberty and restored to her family. It will be for you to say, gentlemen, whether the crown of her martyrdom — because in reality her life during the last few years must have been a martyrdom — whether the crown of that martyrdom shall be the gallows, or whether she will spend the rest of her days with her family, comforted by their affection and support. It will be for you, gentlemen, to determine — and I venture to think that when you weigh the evidence and consider all I have put before you, you will be able gladly to come to the conclusion that your oath justifies you — nay, constrains you, to return a verdict of Not guilty. 

His Honor in summing up said: The prisoner is charged with the wilful murder of her husband. Thomas Fogo: I need not impress on you the great importance of the issue involved in this case, both to the public and to the accused, and I have no doubt you will put away from your mind anything you may have heard outside, and will confine your attention to the facts which have been adduced before you. As I have said, she is charged with murder. It is not necessary to define murder that there should have been any pre-arranged scheme on the part of the accused. The crime of murder may be committed at a moment's notice. If it suddenly comes into the mind of the person to kill somebody else, and if the person to whose mind that idea comes carries out the intention, that is as much amenable to the charge of murder as if the person who struck the blow had been deliberating and scheming over the matter for months past. So in order to constitute murder is it not necessary that there should have been any scheme thought out by the accused before the occurrence. If, however, the evidence pointed to this, that no such preliminary scheme existed, that fact is, of course, a consideration in favour of the innocence of the accused, because although the presence of a preconceived scheme constitutes the crime of murder, yet the absence of a preconceived scheme would naturally be taken as evidence in favour of the accused; that when, the blow was struck there was not necessarily any intention to kill. Let us look at the relations of the parties as they existed before this occurrence. It appears that the deceased and the accused were married in 1870, and that they have two children now surviving — son and daughter; that the husband had given way to drinking habits, and that his habits were getting worse and worse; that he was selfish and morose when under the influence of drink, and that when he was recovering from drink he was violent, obstinate, and unreasonable; that the accused, on the other hand, had been a good wife to him. This is testified, not only by her children, who would naturally speak in her favour, but also by the independent evidence of Mr Sligo. She was devoted to her husband and very patient with him. Then she was, as a rule, temperate, but there were occasions when she was worried that she took drink, and a very little upset her. Further, on this particular occasion the accused, according to the daughter's evidence, had not been drinking. The daughter says that on the Saturday morning she put her arms round her mother's waist and kissed her frequently, and that there was no smell of drink about her. Neither was there any suggestion on the part of the police or anyone else that she appeared to have been drinking that morning; so that any suggestion that it was a drunken freak of hers, or that it was done while she was under the influence of liquor, would have to be absolutely put aside. Then it appears that before this occurrence the accused had complained of the want of sleep. She was worried, and her son says she looked ill, and complained that she had not slept for 11 nights. This is probably an exaggeration. Curiously, she went to Mr Sligo on the Thursday, and said that she desired to speak to him privately. She said to him that she desired him to make her a promise. His Honor here went over Mr Sligo' s evidence, repeating the conversation that took place. Continuing, he said: Some six months before her son had suggested the idea of obtaining a separation from her husband, but she declined on the ground of exposure. She appears to have been somewhat alarmed at the conduct of her husband, and to have been much worried on that account. That is, briefly, the history of the parties up to the date of the occurrence. On the Friday the deceased was under the influence of liquor, and continued to be so, for he went to bed at 6 o'clock in that state. When Miss Fogo returned home that evening from the theatre, she found her mother in bed, quiet, and not excited. She was reading, and at her mother's request, before retiring, returned to the room and put out the light. Her son returned later, between 11.30 and 11.45, and he went into the room and wished his parents good-night, as was his custom. He saw their forms in bed, and did not receive any reply from his father. That was the last time he saw him until the next morning. Still, we know that the man was killed with the knife produced, and that the knife was, as a matter of fact, in the bedroom next morning. It is a matter of great importance to consider how the knife came there, and as to that we have the evidence of Andrew Fogo, Miss Fogo, the statement of the accused to Miss Coates, and the statement made by the servant girl to Sergeant Gilbert. Miss Fogo says she distinctly remembers taking up the knife on the Friday afternoon for the purpose of cutting cake in a box in the bedroom. She gives you a detailed account of how it was that she brought it up and left it there. Of course, she is a witness for the Crown as well as her brother; but at the same time, it is fair comment that the son and daughter would naturally give their evidence in a way friendly to their mother, if they could in any way honestly do it. It might possibly be open to suggestion that as this detailed account was not given on an earlier occasion that she had been stretching her memory unduly now. But she did say in the first instance that she had taken the knife upstairs on the Friday, and probably left it there. So that the fact of her taking the knife up to the bedroom was not new altogether. She gave a vague statement in the first instance, and since then she has thought over the matter and remembered it more clearly; hence she gave the account the jury heard yesterday. Then Andrew Fogo says when he came home he went into the kitchen with a candle, and put his boots in the scullery. He wanted something to eat, and opened a drawer where the knives and forks were kept, and where the steel and knife were ordinarily kept. He noticed that this knife was not there. Then the girl Ethel made a statement to Sergeant Gilbert that the knife was taken out of the kitchen and not brought back. Then we have the statement of Miss Coates, who says the accused said to her that she had gone to the kitchen for the knife herself. It has been suggested on behalf of the defence that at the time the statement was made on the Saturday the accused was in a state of reaction from the great excitement, and that nothing she said was to be depended on. There is, as I have pointed out, direct evidence about the knife, and some indirect evidence in support of the suggestion that accused did not go down that morning to fetch up the knife from the kitchen. The indirect evidence is this: the son and daughter say that the accused had a difficulty in going up and down stairs, because she was somewhat lame, and if she had gone down hurriedly she would probably have awakened them. The son says he is a light sleeper. That, generally, is the evidence as to the knife. Of course you see it is a very important question in this case whether the knife was in the room at the time of the occurrence or whether the accused went downstairs that morning for the purpose of getting it, as the Crown suggested. If she did go down that morning for the purpose of getting it, it must have been, not for the purpose of self-defence, but for the purpose of aggression, because if she had gone downstairs and got out of the way of her husband there would be no need for her to come up again with the knife. However, the evidence of the son and daughter, together with the statement of the girl Ethel to Sergeant Gilbert, negatives the idea that she went downstairs. That statement made to Miss Coates need not be accepted as absolutely true. I do not know that it follows from that that she had gone down that morning to fetch it. It is for you to put on that statement any meaning you please. Then you have the door snibbed. Well, who snibbed it? The suggestion is an obvious one, that if the accused snibbed the door, and knew that it was fastened on the inside so that persons from the outside could not get in, would it be likely that she would ask for and call for persons to come into the room after she herself had barred the access to the room? His Honor here reviewed the evidence of Andrew Fogo, and then said: That is the evidence, gentlemen. You have heard her statement through her counsel, Mr Sim. You can give it what consideration you think proper. You have to decide on all these materials as to whether the accused has been guilty of murder or manslaughter, or is entitled to an acquittal. A person is guilty of murder, according to our Criminal Code, "if the offender means to cause the death of the person killed; if the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and is reckless whether death, ensues or not.'' So that if you strike a person with a deadly weapon meaning to cause some injury which may be likely to cause death, and you are reckless  whether death ensues or not, you are guilty of murder. Then, again, if an offender in an unlawful object does an act which the offender knows is likely to cause death, and thereby kills a person, though he may desire fills object to be effected without hurting anybody, that is murder. I do not know that that affects the case. Again, if an offender does anything that is likely to cause death, and is reckless whether death ensues or not, that is the crime of murder. So that, if accused used this knife with intention of killing, or used meaning to cause bodily injury which she knew would be likely to cause death, and was reckless whether death ensued or not, in that case she would be guilty of murder. But murder may be reduced to manslaughter if the person who caused death does so in the heat of passion caused by sudden provocation; and any wrongful act or insult of such a nature as to be sufficient to deprive any ordinary person of the power of self-control may be provocation if the offender acts upon it on the sudden, and before there has been time for his passion to cool. That would reduce murder to manslaughter, so that supposing the accused had been aggravated by deceased, and had been provoked by him by some wrongful act or insult of such a nature as to be sufficient to deprive her of all power of self-control, that might be sufficient provocation to reduce an offence which otherwise would be murder to manslaughter. That is to say, that if, under provocation, a person kills with the intention to kill, although without provocation the killing with the intention to kill would be murder, the provocation I have described might reduce the offence to manslaughter. But the defence in this case is that it was excusable homicide; that it was done in self-defence. Well, that also is provided for by the Code. Section 58 of the Code provides that "everyone unlawfully assaulted, not having provoked such an assault, is justified in repelling force by force, if the force he uses is not meant to cause death, or grievous bodily harm, and is no more than is necessary for the purpose of self-defence." This is a very material part of the section. "Everyone so assaulted," — that is unjustifiably assaulted; and an assault includes an attempt, a threatening by act or gesture to apply force to the person of another — "everyone so assaulted is justified, though he causes death or bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made, or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made, or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death of grievous bodily harm." In order to absolutely justify the killing of another person with a deadly instrument, it must appear that the person who does the act did it because that person honestly — and not only honestly, but reasonably — believed that it was necessary for the purpose of self-defence, and that it was the only way in which he could preserve himself from death or bodily harm. So that it does not follow, because there was provocation, or because there was a threat of violence — it does not follow because these things existed that that is a justification for killing, or justification for using a deadly weapon. Provocation or threat of violence may reduce a crime, which would otherwise be murder, to manslaughter, but it does not follow because of the existence of provocation, nor because there is some fear of violence, that the homicide is excusable. It is only excusable if the accused person has reasonable grounds for believing, and does believe, that it is necessary to protect himself from death or serious injury. If it is reasonably necessary to protect yourself from death or serious injury to inflict a fatal wound with a deadly weapon, you are excused if death happens, but not otherwise. I do not know, gentlemen, that I need trouble you any further, but I shall be happy to answer any questions as to the evidence or as to the law as I have defined it to you. As I have said, if there was no provocation, the act of the accused in killing the deceased is murder. Then, if you think there was any provocation, you have to consider whether that provocation was sufficient, according as I have described it — that is, any wrongful act or insult of such a nature as to be sufficient to deprive any ordinary person of the power of self-control. Any wrongful act, you see, may be provocation, but is the provocation sufficient to reduce what otherwise would be murder to manslaughter? Then there is the further question: Was the blow struck by accused reasonably in order to protect herself from death or grievous bodily harm? It is only in that event that she is excused absolutely and entitled to be acquitted. However, if there was an intention to kill, or an intention to cause bodily injury, known to the offender to be likely to cause death, and she was reckless whether death ensued or not, in either case it is murder, unless it is reduced to manslaughter by provocation, or unless it is rendered entirely justifiable by being reasonably necessary for the purposes of self-defence.
A Juror inquired if there was any evidence how the walking-stick, which stood beside the dressing table, came to be found where it was. His Honor replied in the negative. There was nothing to show how it got there. Mr Sim remarked that the bedroom was a very small one, and after the blow was struck by Mrs Fogo it might have dropped out of her hand, or she might have thrown it behind her.
Another Juror inquired if the deceased's son had stated whether the cake was kept in the parlour or the bedroom.
His Honor said the son had said nothing about it. It was the daughter who had said that the cake was kept in a box in the bedroom.
The jury retired at 12.30 p.m. At 3.10 p.m. the jury returned for directions as to the difference between murder and manslaughter.
His Honor repeated the direction as to the law applicable to the case, as previously given by him, and the jury again retired. At 6 o'clock the jury returned to the court. In reply to the Sheriff, the Foreman said: We find the accused guilty of murder, with a strong recommendation to mercy. The prisoner here burst into tears, and a dead silence prevailed in the court for two or three minutes.
His Honor said: Prisoner at the bar. All I have to do is to pass the sentence which the law prescribes in these cases. The jury found you guilty of murder. They have accompanied their verdict with a strong recommendation to mercy. That recommendation I shall, of course, forward to the proper quarter. Whether the sentence of the court will be executed or not will not depend on me, but will depend on the advisers to the Crown. I think I may say that I concur in the recommendation with which the jury have accompanied their verdict. I shall intimate that concurrence also to the advisers of the Crown.
Assuming the black cap, his Honor said: The sentence of the court is that you be taken from the place where you now are to the gaol, and that you be hanged by the neck till you are dead.
The prisoner was then led from the court by Mr Phillips, the gaoler, and the court adjourned until 10.30 o'clock next morning.  -Otago Witness, 5/12/1900.


The case of Sarah Fogo, who was sentenced to death at Dunedin a fortnight ago for the murder of her husband, Thomas Fogo, but was recommended to mercy by the jury, was considered at a meeting of the Cabinet held in Christchurch on Saturday. Ministers decided to recommend His Excellency the Governor to commute the sentence to imprisonment for life.  -Evening Post, 17/12/1900.

TO THE EDITOR. Sir, — Noting in your issue of to-day your summary of "Merciful's" letter urging that a petition should be sent to his Excellency the Governor; knowing also that hundreds have been suggesting and urging such a course, I think it right to inform all and sundry that a petition has been got up, and when it was also noted that your Wellington correspondent had advised you that Mrs Fogo's case would "be considered at a meeting of the Executive Council to be held in Christchurch on Saturday," it was thought desirable that the petition should be at once sent on to the Right Hon. the Premier, with a request that he would take a suitable opportunity of presenting it to his Excellency, and it was accordingly sent by this morning's express. The petition contains about 1700 signatures, and I doubt not that as many thousands would have been readily obtained had the press been requested to notify that the petition was being signed. This would have been done had a monster petition been aimed at. But — rightly or wrongly, and in consonance with the wishes of those most nearly interested it was decided to proceed quietly and to obtain a thoroughly representative rather than a monster petition. I have no hesitation in stating that the petition sent is a representative one in the very fullest and all-embracing sense. I may add that the signatures were obtained within the last few days by a few individuals of both sexes who desired that a petition should be presented taking the sheets and getting them filled as they saw, or made, opportunities, and that no systematic canvas was attempted. In case you should think it desirable that the general public should know just what is stated in the petition, I beg to enclose a copy of the heading. 
As I am only one of many who desired this thing should be done, I subscribe myself, Sympathy.
The following is a copy of the petition: — To his Excellency the Right Honourable Uchtor John Mark, Earl of Ranfurly, K.C.M.G., Governor of the Colony of New Zealand. 
The petition of the undersigned persons resident in and about Dunedin humbly sheweth: — 
1. That at Dunedin Sarah Fogo, wife of Thomas Fogo, of Dunedin, painter, was on the 30th day of November, 1900, tried and found guilty of the murder of her husband, the said Thomas Fogo. 
2. That the evidence adduced in her case directly and indirectly showed as follows: — (a) That the said Sarah Fogo is 63 years of age, and that her married life extended over a period exceeding 30 years, during the whole of which period she resided in the City of Dunedin; (b) that during that period of 30 years she was a patient, industrious, forbearing, affectionate, and estimable wife; (c) that she was a judicious, fond, devoted, and affectionate mother; (d) that without seeking to parade her kindness, she, with the full consent and approval of her husband, had always been in her humble and unassuming way, most helpful, diligent, and constant in affording relief to the poor and distressed wherever any necessity had been made known to her. 
3. That we are sure that she is far removed from the ordinary criminal class, and her guilt, whatever its degree, must have been the result of sudden, unpremeditated, and provoked passion after years of patient endurance of great trial, resulting from the excessive intemperance of her husband and all the suffering thereby entailed. 
Your petitioners therefore humbly and earnestly pray that your Excellency will give every consideration to her exceptionally good character and to her trials and sufferings, and will, to the fullest extent possible, give effect to the jury's strong recommendation to mercy: 
And your petitioners will ever pray.  -Otago Daily Times, 19/12/1900.

His Worship the Mayor has received the following letter from the inspector of Prisons in answer to the petition of Dunedin residents for a reprieve of Mrs Sarah Fogo, who was convicted of the murder of her husband: — 
Wellington. 15th March, 1901. Sir, — I have the honor, by direction of the Hon. the Minister of Justice, to acknowledge his receipt of a petition, without date, signed by yourself and many residents in and about Dunedin, addressed to His Excellency the Governor, praying that the jury’s recommendation to mercy in the case of prisoner Sarah Fogo may be given effect to, which has been duly submitted to His Excellency, and in reply to inform you that the Minister can see no sufficient grounds to justify him in recommending His Excellency to comply with the request, further than has already been done. I have the honor to be, sir, your most obedient servant, A. Hume, Inspector of Prisons.  -Evening Star, 15/3/1901.

Further petitions followed, culminating in:
Mrs Sarah Fogo, who in November, 1900, was found guilty of murdering her husband by stabbing him, will be released from Dunedin gaol next month. Mrs Fogo was sentenced to death, but the sentence was afterwards commuted to one of imprisonment for life.  -Wairarapa Daily Times, 17/10/1906.

On the 15th of last month we stated that Mrs Fogo, who in November of 1900 was found guilty of the murder of her husband, would be released from the Dunedin Gaol this month. In confirmation of that statement we now announce that Mrs Fogo was released at twenty minutes past three this afternoon. She was met by her son and daughter, and driven home. Mrs Fogo was sentenced to death on the last day of November of the year mentioned above, the sentence afterwards being commuted to one of imprisonment for life.   -Evening Star, 24/11/1906.

FOGO. — On April 28th, at 348 Castle street, Dunedin, Mrs Sarah Fogo. Private interment. Flowers respectfully declined.   -Evening Star, 29/4/1911.

Death of Sarah Fogo.
Died at Dunedin on April 28, Mrs Sarah Fogo, whose name will be recollected by quite a few people in the Dominion. On November 29, 1900, Mrs Sarah Fogo was sentenced to death for the murder of her husband, by Mr Justice Williams, after a jury had brought, her in guilty. The murder was alleged to have been committed with a knife, and deceased was defended by Mr, now Judge, Sim. The sentence was afterwards commuted to penal servitude for life, but the deceased was released from gaol in November, 1906, after serving six years. Since her release, deceased went in for philanthropic work in a quiet way, and many of the poor about Dunedin have been given a good time by her.  -NZ Truth, 6/5/1911.

Northern Cemetery, Dunedin.

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