His Lordship, in summing up, entered at once into an examination of the evidence, referring first to that given by the surgeon. The inevitable inference from it was that Lilley was barbarously beaten to death by blows upon the head. Of that there could be no doubt at all. The law respecting the crime of which those six fellow subjects and fellow creatures were charged presumed even homicide to be murder unless it was otherwise proved. Murder was killing with malice - not hatred or ill will necessarily, for there might be malice without previous ill will. The legal meaning of malice was an ill mind deliberately bent and set upon mischief. During the course of the able speeches by the counsel for the prisoners the jury could not fail to see that they did not all agree upon their theories. One thought this was a case of murder; another that manslaughter was the only crime of which they could be convicted. For the law of the case they would have to look to him (the judge). It was contended that there was no evidence that any of the persons were in the field in which Lilley was beaten to death, unlawfully. He differed altogether from that statement. They were there armed, their number exceeding three, with the nets for the purpose of taking game, and with bludgeons in their hands. And if it was necessary to show that the conduct of Lilley was lawful, he was prepared to say that it was, they being there at the time committing an indictable offence, and he to take means to apprehend them. But it was not necessary to say that. It had been always held that even when defence against an attack id justifiable, or might be excused so as to reduce the crime of homicide below that of murder and manslaughter, it was not excused by violence of an outrageously brutal description. It had been held repeatedly, and it was consistent with the common sense and common feeling of everybody, that even when a man may resist another lawfully he may be guilty of murder if he resists him with such violence and outrage as to indicate clearly an intention to kill him, or to commit the felony of doing him grievous bodily harm. The mere barbarity or cruelty of an outrage is enough to establish the malice which constitutes the necessary element of the definition of murder. Even if it had been the keepers in this case who intended to apprehend one of these men, and got him down and violently beaten him to death, that would have been murder too. There was no doubt that the men who beat Lilley upon the head to death - if the jury were satisfied at to the facts - were guilty of murder. It did not at all follow that all of those six men were guilty of murder. The jury were not to infer because they all went out with bludgeons, that they all had the common intent of committing murder or doing grievous bodily harm. The mere common intent of going to the wood to catch hares and rabbits, with sticks to protect themselves, ought not to satisfy the jury that they all had the common intent of committing the crime which was here imputed to them. It was indeed proved that they went there having arranged a preconcerted signal. It was not proved that that preconcerted signal when given was to be a signal for them all to attack and beat to death any person who might come up to apprehend them. Nay, it was stated to be only a signal for them all to assemble together. They were to remember, therefore, that the fact of their going there with the common intent to do an unlawful act, the taking of game at night, or being in enclosed ground at night, armed and to the number of more than three, was not enough to make them guilty of the murder. On the other hand, it is not in the least necessary to constitute the malice of a mind fatally and deliberately bent on mischief, which was essential to the act of murder, that that bad mind, that malice, should have had any very long existence. If at the time one of them called "Hey up! they're here," there was then a common intent to do grievous bodily harm to Lilley or to the keepers, there was then a common intent, and if some of them did the actual deed of killing Lilley, and the others stood by preventing Lilley's friends and comrades coming up to his assistance, protecting thereby and aiding those who were beating Lilley to death, then they would be all guilty. But the jury, if they found that any of them had intent to do him grievous bodily harm, must be satisfied that they all joined in the common intent before they could find those who actually beat him guilty of that crime. In telling them the law of the case, it was necessary that he should to some extent assume the truth of the facts that were before the jury. But the truth of the facts was not for him (his Lordship), but the jury to judge of; and unless they were satisfied by the evidence, of the facts, which for the purpose of explaining the law he had to a certain extent assumed, they could not find the men guilty.
Before he proceeded to examine the evidence of the principal witness in the case, the approver Woodhouse, it was necessary that he should trouble them for a few minutes, not so much with the law as with the practice, the well established judicial practice, respecting the reception of the evidence of approvers. They would observe that in the course of the case yesterday two learned counsel, those for Savage and Booth, asked him (the judge), at the proper time to do so, whether there was any case against their clients, and he said he thought there was evidence against them all. There was evidence against them all because, in point of law, it was competent for the jury, if they insisted upon doing so, to find these men guilty upon the evidence of the approver alone. But it had been for a great number of years the unvaried practice of the learned judges of the superior courts, strongly to advise a jury never to convict any man upon the evidence of an approver alone. The reasons for that practice were abundantly obvious. If there were no reasons for it that occurred to them, the long practice of men of the highest eminence, unrebuked and uncorrected by the Courts to which they belonged, was enough to render it his bounden duty to give them the advice which all his predecessors had given to juries. but it was obvious that an approver, a man who, like Woodhouse, came before them as an avowed murderer, whose own life was in danger the moment the death of Lilley was known, was under the temptation irresistible to a profligate mind like his was, to say enough to save his own neck. There was, therefore, every reason independently of the long settled practice of the Courts why an approver should not be believed on his oath, unless he was corroborated in the material circumstances of his evidence. He should tell them that it had been part of the practice to which he had referred, to recommend juries not to believe an approver unless he were confirmed not only as to the actual circumstances and history of the crime but as to the identity of the persons by whom he said it was committed. If the jury were willing to take the advice he thought it his duty to give to them, it would not be enough for them to be satisfied that the general outline of Woodhouse's story was true, unless he were also confirmed as to the individuals who did it. They would find that to be the most important consideration when they came to decide upon their verdict. If it were not that he was of the opinion of the majority of the judges - to whom, from time to time, this question had been submitted - that when there was no evidence against a man but that of an approver, a judge ought not to direct, but only to advise, he did not know that he should not have yielded on the previous day to the suggestions of the learned counsel for Savage and Booth, and have told the jury that as the case stood there was not sufficient evidence without the approver to convict the prisoners of this crime. If the approver was confirmed by respectable and credible witnesses, if his tale cohered, and was established by evidence which satisfied them, and touched all or some of the prisoners at the bar, and carried conviction to the minds of the jury, they knew perfectly well that it had been the practice so long as there was any record to admit approvers to give evidence when the ends of justice required it, and that many a man had suffered on such evidence. His Lordship proceeded to read the evidence of Woodhouse.
He said that up to the time when the expression "Hey up, here they are!" was used, there was no malice - no intention to commit grievous bodily harm. The evidence given by the approver was fearful evidence against the persons accused and against himself. His evidence on cross examination made him out as bad as it was possible for him to be. He had been a professional poacher until 9 years ago, and he had occasionally poached since. He was a person as little deserving of belief, unconfirmed, as any approver that ever came to the witness box. That seemed to be considered by the whole scheme of the prosecution, because they did not trust the case to his evidence in any one particular. They endeavoured to confirm him in regard to everything that took place that night. The prosecution itself in fact advised the jury not to believe him unless they found him confirmed in material particulars, not only as to the killing of Lilley in the field, but as to the presence of the prisoners, one or all, or some of them, while he was being killed.
Remarking on the evidence of Machin, his Lordship said that he was a man of untainted character, and his statements were worthy of every consideration.
If they believed his evidence, Woodhouse was confirmed, not only as to the circumstances of the affray, but also as to what he had said regarding Teale.
The evidence of Hawkins, another of the gamekeepers, if believed by the jury, could not fail also to confirm what Woodhouse had said to Teale. After carefully reading over the whole of the evidence, his Lordship said he had to repeat what he had stated at the outset of his remarks, that they could not find any of the prisoners guilty on the evidence of Woodhouse unless they found him confirmed not only as to the general history and facts of the case, but as to the individuals who were in the field at Silverwood when Lilley was beaten.
If they believed Machin, Butler, and Hawkins, Woodhouse was confirmed as to Teale and Sykes.
In regard to Bone and Bentcliffe the evidence confirmatory of the statements of Woodhouse which implicated them was principally concerning the dogs being lent. There was the further evidence of their being out late, and Woodhouse was confirmed in various minute particulars of his statements as to the course they took; but most of his evidence on that point did not go to a greater extent than to prove the fact that he was at the place he mentioned with some other persons.
As to Booth and Savage, the evidence confirmatory of Woodhouse was so very slight that the jury could hardly feel themselves justified in finding them guilty. It would be nothing without the evidence of Woodhouse, and he must be confirmed in material points. The jury would recollect what he had told them at the commencement of his address - that to constitute murder there need not be long malice, or personal ill will or hatred.
The jury intimated to the Judge that they wished to know whether or not the keepers had any communication with each other after they had seen the prisoners for the purpose of identifying them?
His lordship: We will ask Gillett.
Mr. Gillett: We all went out, myself and the 3 keepers. We went to the front of my house, and the keepers stated to me whom they identified.
The Judge: But had they had any opportunity of speaking to each other before they said that to you.
Witness: They did not speak at all.
The Judge: You are sure of that?
Witness: I am.
A Juror: Had they been in company apart from you?
Witness: No.
A Juror: Do you know whether they had or not?
Witness: I was with them myself.
A Juror: Had each keeper been put into separate apartments, after going in and seeing which they could identify?
Witness: They all went together, and all came back together.
A Juror: You were not present?
Witness: I was present all the time.
A Juror: There could be no understanding as to any man particularly?
Witness: Nothing of the kind, certainly. There was not a word spoke; and when they came out I inquired which they could identify.
Another Juror asked whether they had anything to consider with regard Woodhouse?
The Judge: No: he is not in the dock.
The Juror: I wish he was.
The Jury retired to consider their verdict.