Page:Notes and Queries - Series 12 - Volume 8.djvu/468

 382 NOTES AND QUERIES. [ 12 S. VIII. MAY 14, 1921. As to the malice which the law implies in such cases, the same learned Judge says that : " Most if not all the cases which are ranged under the head of implied malice will, if care- fully adverted to, be found to turn upon this single point, that the fact hath been attended with such circumstances as carry in them the plain indications of a heart rcgardl ss of social duty, and fatally bent upon mischief " (ibid., p. 257) On the subject of accomplices the same learned Judge says that : " In order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary" (ibid., p. 350). A distinction was then drawn between the second of the deceased duellist and the second of the survivor. The Attorney- General observed that the law which he had cited was to be traced in the earliest authorities, and was recognized in our own days in Rice's case (3 East, 681) ; and among the cases therein referred to, the distinction between the seconds was again recognized. He then proceeded to call the evidence. . . . LIEUT. -COLONEL THOMAS ROWLAND BURKE, of the Veteran Companies, sworn and examined : Knows the prisoners at the bar. Captain Rudkin is under his orders ; Dr. Strachan is Assistant- Surgeon in the military establishment ; Captain Morice commands the Governor's yacht in the harbour. John Philpot was lately Ensign in his corps : he is recently dead. On the 30th March last, between three and four o'clock in the afternoon, Captain Rudkin rushed into witness's room, seemingly out of his mind, and told him that Mr. Philpot was dead. Witness asked for an explanation ; thinking from his manner that he was distracted. Captain Rudkin said that Mr. Philpot had kicked him last evening, that they had just fought, and that he had shot him dead. Mr. Philpot had been with witness several times that morning ; he was then in good health. By the Court : Witness inquired who the seconds were, when Captain Rudkin said, " Mr. Strachan " ; and, after some hesitation, added " Captain Morice." Thinks Captain R. told him that Mr. Strachan was his (Capt. R.'s) second, but he is not very certain. Witness had seen Mr. Philpot several times that morning upon points of duty ; there was nothing peculiar in his manner. CAVENDISH WILLOCK : Knows all the prisoners. Knew Ensign John Philpot. Knows of his death. Knows how and when he came by his death. He was killed in a duel by Captain Rudkin. On the last Thursday in March wit- ness was in an enclosure at the back of West's farm, within a mile from the town, and saw there j Captain Rudkin, Mr. Philpot, Dr. Strachan, and j Capt Morice. The ground was measured out by Captain Morice and Dr. Strachan. The distance was 15 paces. At that time Captain R. was standing upwards of 100 yards from the others. Philpot was standing close to the seconds, and was the first who took his station, having previously taken off his coat. Captain Rudkin then took his station upon being beckoned to by the others, without taking off his coat. The pistols were then given to them by the seconds, who tossed up, and the words " Ready fire " were given by Dr. Strachan. They instantly fired, but without effect. Mr. Philpot immediately extended his pistol, as if to return it to Captain Morice, who took it. Rudkin kept his by his side until Strachan went up and took it from him. The seconds then talked together ; but witness could not hear what they said. After conversing a short time, each went to his principal and talked to him with a view, as witness concluded, to an accommodation of the dispute, because he after- wards heard Captain Morice say that it was a pity Mr. Philpot would not apologize after the first shot. The seconds then returned to each other, and after a short time re-delivered the pistols to Captain Rudkin and Mr. Philpot. Strachan and Morice again tossed up, and the same word was given by Captain Morice as that which had before been given by Dr. Strachan. Instantly on the word they fired together ; both shots appeared like one and Mr. Philpot fell. Witness immediately ran up to hiin and caught him by the hand ; Captain Rudkin, at the same time, caught him by the other hand, and appeared very much agitated. He said he hoped he was not much hurt, and that he believed it was only in the arm. Dr. Strachan and witness both asked Mr. Philpot where he was hit ; but he never spoke nor uttered even a groan except when he fell. Witness, Strachan, and Morice then turned him on his side, and having torn his shirt discovered that the ball had entered his right side, opposite the heart. Dr. Strachan immediately said the wound was mortal and that he was dying. Captain Rudkin then said he would go and tell the Colonel what had hap- pened, and send persons to take care of the body. Witness, on perceiving that Mr. Philpot was quite dead, covered the body over with his coat and then left it. By the Court : The occurrence happened be- tween 1 and 2 o'clock. Witness was, he^believes, not more than fourteen yards from the parties. He went into the enclosure with Philpot and Morice. From the means which he had of knowing the parties, could have no doubt that Capt. Morice. Capt. Rudkin, and Dr. Strachan were the persons who were on the ground. EDWARD KIELLEY : Is a surgeon. Knew Ensign John Philpot, was sent for by the Coroner, during the inquest, to inspect the body. Found a wound between the 5th and 6th ribs, on the right side, through the membrane and lining of the chest. It was a pistol-ball wound. It had penetrated the third lobe of the right lung. Found the pistol-ball in the body and extracted it. Has no doubt that that wound was the cause of the death of the deceased. (This witness was about to give an anatomical description of the appearance of the body upon opening it, but the Court thought this unnecessary, and there- fore dispensed with it.) Cross-examined : The ball entered between the 5th and 6th ribs ; and from the situation in which it entered, the arm of the deceased must have been extended, as if in the act of firing when he received the wound. This was the case for the prosecution.