18th August 1845
Reference Numbert18450818-1796
VerdictGuilty > lesser offence
SentenceNo Punishment > sentence respited

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1796. JOSEPH HARVEY was indicted for feloniously killing, and slaying Charles Ratherbee.

MR. PAYNE. conducted the Prosecution.

ANN RATHERBEE . I am the widow of Charles Ratherbee—he died on the 30th of July—he was a trumpeter, and lived in Lorinier-lane, Wal-worth—he rented a piece of ground of Mr. Westbrook, and let a piece of it to the prisoner. On the 8th of April I went out at the back door, and saw the prisoner sowing seeds in that ground—I told my husband—I then went and said to the prisoner, "My husband says it is useless for you to sow soed in that ground, for we want it to plant potatoes"—he said, "I will see him d—d first before I will give it up"—I returned to the cottage—my husband went out and told him it was no use for him to sow his seed, as he wanted it himself to plant potatoes; and how foolish it was of him to be so obstinate—the prisoner said, "You do, do you; I will tee you d—d before I will give it up"—my husband said, "The ground I want, and the ground I will have"—the prisoner said, "I will not give it up without it is by law"—he had bad a notice to quit the ground, and told my husband that be ought to have a twelvemonths' notice, not six—my husband said he never knew a twelvemonths' notice, six months' notice was always good in law—the prisoner said he would not give it up, and my husband said he should—the prisoner then said he would have a fair up and down for it—I suppose he meant a fight—he said, "You ought to have taken possession of the ground"—my husband said, "I am always in possession of my own ground while my cottage stands on it"—when my husband first went on the ground and spoke to the prisoner, he went a little distance, raised his arm, and drove his left elbow into my husband's chest, and threw him flat on his back—my husband had not done anything to him before he did that—I cried out, and said, "Oh, Mr. Hurvey, you will kill my husband!"—my husband got up, and said, "What did you do that for?"—the prisoner said, "If you don't stand out of my way I will knock your b—y life out!" and the prisoner's niece said "He did not knock your husband down, he only pushed him down"—when my husband said he was always in possession while bis cottage stood on it, the prisoner said that was not possession, my husband ought to have

come and put his spade in the ground—I went in and fetched a spade—my hnsband took and stuck it in the ground, and said, "Now 1 have taken possession"—the prisoner took the spade out of the ground, and said, "Then you mean it, you b—r, do you?" and made a blow at my husband with it—my husband took up a rake to defend himself, a scuffle ensued, my husband stooped, and the spade went over his head into our ground—he was still on the ground, and the prisoner took hold of him with both his hands by the collar—(my husband had not got the rake then, it had dropped from his hand)—the prisoner dragged him along the ground, and tore his waistcoat off his back—my husband got up and told me to fetch a policeman—I said I would not leave him, I was afraid of his being murdered—by that time Mr. Harvey's niece came up with a bull-dog, which she loosened from the kennel and brought to the space between his ground and ours—she said, "Look, Pitcher, at Fop, the fiddler, you could make a better man than him"—my husband took up a couple of bricks and said he would throw them at the dog—Mr. Brush came up—my husband took up his waistcoat, and said, "See what he has done"—Mr. Brush said, "It serves you right, it would have been a good job if he had killed you; you ought to have given him a proper notice"—my hus-band said he had—there were no blows given after that—the prisoner stood in a fighting attitude, and said, "Come on, you pretty little boy, I will fight you with one hand"—I said, "No, he can't fight, he has not been brought up to that blackguard calling"—my husband was thirty-three years old—he had not been suffering at all, that 1 know of—when we got in he told me he was very sick—I gave him the basin, and be threw up about a pint of blood—I gave him vinegar and water, which stopped it, but it came on again the same day about twelve, and Mr. Otway was called in—the bleeding continued from that time, now and then, till he died—he was in Guy's Hospital a week and five days—he did not strike the prisoner at all.

ELIZABETH WIFFIN . I live in Hen and ChickenJane, Walworth. This matter happened on a Tuesday morning—I lived next door to Mr. Ratherbee's cottage, on the right hand—I saw Harvey sowing seed—I saw Mrs. Ratherbee go up to him, and I heard her say, "Mr. Harvey, my husband has sent me to tell you it is not any use your sowing seeds in the ground, for we want it to plant potatoes in"—the prisoner said, "I will see him d—d first"—she went into the cottage—Mr. Ratherbee and she came out—they went straight to the prisoner, and Mr. Ratherbee said, "Mr. Harvey, what is the use of being so foolish not to give up the ground? you have had a regular notice six months, why do you want twelve months?"—the prisoner said, "I will have twelve months"—Mr. Ratherbee said, "A six months' written notice is quite plenty by law"—the prisoner said, "I will not give it up unless by law"—Mr. Ratherbee said, "I do not want to go to law, I have no money to go to law; all I want is for you to give up the ground by peace and quietness"—I then saw the prisoner go from Mr. Ratherbee—he stooped, and picked up a stick, which appeared to me to be about six inches long—he was marking the beds of seed with it—I then went into my cottage for a cup of coffee, and as I got up to return I looked through the window, and saw the prisoner going towards Mr. Ratherbee with his left elbow up—in passing to the door I lost sight of them for a moment, and did not see the blow struck—when

I got out I found Mr. Ratherbee flat on his back—the prisoner was about a yard away, looking over Mr. Ratherbee—Mrs. Ratberbee said, "Oh, Mr. Harvey, what did you do that for? you will kill my poor husband"—Mr. Ratherbee got up, and said, "What did you do that for? what did you strike me for?"—the prisoner said, using an awful expres-sion, "I did not strike you, I only pushed you"—Mr. Ratherbee said, "You did strike me, you did not push me; I can feel the blow"—Harvey said, "I did not strike you, I only pushed you; I have witnesses to prow it"—I saw a spade in the ground—I cannot say who put it there, and I saw a rake lying down—I saw Mr. Harvey take up the spade to make a blow at Mr. Ratherbee—Mr. Ratherhee stooped down, picked up this rake, and held it across his face, and said, "Do you mean it?"—Mr. Harvey used an awful expression in reply, and threw the spade—Mr. Ratherbee stooped down, and it went over his bead, and went right into Mr. Ratherbee's ground—after that Mr. Brush came up.

Cross-examined by MR. ROBINSON. Q. You say you were standing at your door? A. Yes—I cannot say how far I was from the place—I heard all that passed—I did not come to the prisoner and say that I would come as a witness on his behalf—I saw this transaction from first to last, except when I went in for the coffee—my grandfather was there, but he was not with me all the time—he saw great part of it—we were all at breakfast.

MR. PAYNE. Q. Where was your grandfather? A. Sometimes inside, and sometimes out—I do not suppose he saw above half of it.

CHARLES WILLIAM OTWAY . I live in Canterbury-row, and am a surgeon. On the 10th of April I was called to attend the deceased—he had a vessel by his bed-side witb a quantity of blood in it, and was spitting blood at the time—he complained of pain in his side, which he said bad been caused by a blow—I examined his chest—I found no bruise, and nothing to indicate a blow, but by examining with my ear I heard a noise in the chest—the spitting of blood proceeded from the rupture of a blood-vessel—it diminished gradually for about three weeks—he went on for a week or ten days without, and then there was a return of it—it diminished again by treatment, but from his general state of ill health it returned—he went to the hospital—I saw him there—he was very low, and was expec-torating mucus tinged with blood—that was about the 29th of June—I did not see him again alive—on the 2nd of Aug. I saw him lying dead at his house—I made a post mortem examination—I found the cells of the lungs dilated very much, which I attributed to his occupation as a trumpeter—the lungs were gorged with mucus, a little quantity of blood and air—there was an extensive disease as well, which had existed for some time—that would eventually have caused him to die—the lung where the vessel had been ruptured had recovered itself—there had been extensive bleeding, and the effect of that was to weaken him, and cause great debility—the more immediate cause of his death was the state of the air-cells and the spitting of blood, which would decidedly weaken him—supposing him to have received a blow from a man's elbow on the 10th of April, which knocked him down, and he bad been then pulled about the ground, one or both of those things would account for the rupture of a blood vessel, and that would accelerate the disease—he would have died of the diseased lungs, but the rupture of the vessel would accelerate the disease.

Cross-examined. Q. Would not a blow that would cause a man to be

pushed down, and his being dragged about, have left some marks? A. Yes, I expected to find it had—the disease had been of long-standing—the blowing of a trumpet would decidedly increase it, and the longer the disease had been standing, the greater injury would any successive use of the trumpet cause—in all probability this disease would have caused his death, supposing he had not used the trumpet afterwards at all—this occurred on the 8th, and I saw him on the 10th, and there was some rupture of a vessel, which was healed—I cannot say when that rupture occurred—a person whose lungs were in the state his were, would be likely to burst a blood-vessel from any great excitement—if a man were in a passion, and throwing brick-bats, it would be sufficient to cause the rupture, and produce the effects I have stated—I believe a very trifling degree of excitement would produce it in a man in that state—I was told by a medical man, and by the deceased also, that he had ruptured a blood-vessel previously—he told me some months previously that a caldron had burst near him, and caused him such a sensation that he had expectorated blood for some short time after.

MR. PANYE. Q. From the weak state in which he was when you saw him, was he in a fit state to blow a trumpet? A. No—supposing a man pushed outside his clothes, and pulled about, that might have produced a rupture of a blood-vessel, in the state of his lungs, without the appearance of any external mark or blow.

WILLIAM LAMB . I live in Bolingbroke-row, and am a surgeon. I saw the deceased on the 9th of July—I found his respiration carried on very imperfectly, scarcely at all in the right lung, and very slightly through the left—I attended his post mortem examination—Mr. Otway has described it correctly—the deceased stated to me, while I was attending him, that he had ruptured a blood-vessel six months before; that a caldron which the japanners used was overset or burst, and nearly suffocated every person, that they were obliged to leave the place to get fresh air, and when he got out he had a cough which caused him to vomit blood.

Cross-examined. Q. If an injury of that kind had existed six months, would there not be a predisposition of body to have a similar occurrence? A. Yes—it is a difficult question to answer whether he died from the bursting of a blood-vessel from excitement, or from external injury—if a man had received a blow with an elbow sufficient to knock him down, it would rather surprise me if there had been no mark—there was no internal evidence that any external injury had been sustained—I was particularly careful in that respect.

MR. PAYNE. Q. Do you mean to represent that there must have been an external mark, if a man in a weak state had been pushed and thrown down? A. Yes, if it had been sufficient to produce such an injury as that—his lungs were in a very bad state before I saw them—it was a disease of many years' standing—supposing a man in his condition were pushed down and dragged along the ground on the 8th of April, it might have produced the rupture of a vessel; but I think there were other causes, as the emotion of mind—I could not answer conscientiously either one way or the other, as to whether the violence might do it—it might do it—the post mortem examination took place on the 2nd of Aug., and the injury was on the 8th of April—I think the length of time from the 8th of April to the 2nd of Aug. was not sufficient to render it impossible to detect any injury—I think so from the healthy appearance of the parts about

where the blow is said to have been given—there was no indication on tho 2nd of Aug., nor at the time I first saw him.

JURY to CHARLES WILLAM OTWAY. Q. Did the deceased recover from the blow he first met with? A. I stated that the right lung✗had recovered—he had a relapse, and then the left lung was affected; not the same lung that was affected at first.

WILLAM MORGAN (police-constable P 289.) I first saw Ratherbee on the 9th of June—I saw him at different times from then till bis death—I produce this waistcoat.

MR. ROBINSON to ANN RATHERBEE. Q. How soon after this were you examined at Lambeth-street? A. On the Monday after this transaction—I believe the prisoner had taken out a warrant against my hus-band for an assault, but we never received it—my husband went out on the Tuesday evening to a rehearsal at Exeter-hall—he came home at eleven o'clock, and told me he was very ill, and not able to do anything—he said he had not played his instrument—he was not out the next day, only in the garden—he was not able to play the instrument again


CHARLOTTE SPICE . I am the prisoner's niece. I was there when this took place—when Ratherbee came out, be went up to my uncle, and said be wanted the ground—my uncle said he did not want any words with him, if he wanted the ground he must take it by course of law—Rather-bee said be would dig up all the seeds my uncle had sown; and he took off his jacket, brought out a spade, and began to dig them up—I and my uncle went up to him—he took up the spade, and was going to cleave my uncle down to the ground—my uncle caught the spade in his left hand, and Ratherbee took up the great iron rake, and made a blow at my uncle,. and with the spade he knocked off the blow of the rake—he then threw the spade into Ratherbee's ground, and then my uncle threw the rake over—Ratherbee then began to throw bricks, and said he would do for the dog, and the green-house too—I did not bring the dog out—it was not a very large dog.

MR. PAYNE. Q. Where was this dog? A. Chained up to his kennel—he was not very near to Ratherbee—he was as far from him as the length of this court, when he said he would do for the dog and the green-house too—I did not take the dog, and bring him by the chain, ready to let him loose at Ratherbee—he did not take up the bricks, and say, if I did not take the dog away, he would throw the bricks at him—I never went away from the kennel—I was playing with the dog, and took him up in my arms—I did not say, "There is Fop, the fiddler; look out, Pincher"—I always stand by the dog when I go out playing—Ratberbee did not throw the bricks at the dog—he did at uncle—I live with my father, but I was staying at my uncle's a short time—Mr. Brush came up soon after—I saw Elizabeth Wiffin stand at her father's door—I saw Ratherbee down on his back once, when my uncle took the rake from him—my uncle then "had the spade in one of his hands, and he threw it over into Mr. Rather-bee's ground—it did not go over Mr. Ratherbee's head—it went by the side of it—it never hit him.

----LESTER. I am a marble-sawyer. I live in some premises adjoining—on the 8th of April I saw Ratherbee walking up to Harvey with the spade in his hand, with the intention of cleaving him down—I saw him make a blow at him—Harvey caught the spade, and wrested it out of

his hand—Ratherbee caught up a rake and made another hit at him—he caught the blow with the spade, and threw the spade over into Ratherbee'a ground, and told him to go in—he took the rake from him—Ratherbee fell, and was on the ground a minute—I saw no dragging on the ground, and there was no blow struck—I saw ten or a dozen bricks thrown at Harvey—it is from forty-five to fifty yards from where Wiffin stood to where the assault took place.

CHARLES WENMAN . I am a carpenter. Between eight and nine o'clock that morning, as I passed from breakfast, I saw this assault—Ratherbee made the first blow at Harvey uith a spade—Harvey did not strike at all—I saw Ratherbee down on the ground, which was caused by Harvey wrenching the rake out of his hand—if he had not done that he would have struck Harvey with it.

RICHARD WIFFIN . I was standing at the door of my cottage and saw Ratherbee lying on his back, but I saw no blow struck—I was looking on—my granddaughter was leaning on one side the door-post, and I on the other—I do not think it was possible for my granddaughter to hear all that passed—she might hear them talking—it was about fifty yards from the place.

MR. PAYNE. Q. Did you not say to Mrs. Ratherbee, the night this happened, "If Harvey gets twelve months it is no more than he deserves?" A. I did not—my granddaughter may say what she pleases, I will say no more than what is true—I do not know how Ratherbee got on the ground—he laid there a minute, or a minute and a half, and then got up—I saw him lie on the ground—he was not dragged.

GUILTY. of an Assault.Judgment Respited.


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