341. William Kirk proceedingsdefend was indicted for committing a rape on the body of Anne Brown proceedingsvictim spinster, an infant under seven years of age April 28 . + .

The child being so youngand not knowing the nature of an oath, could not be examined.

James Moffatt < no role > . I am a surgeon, and live in Lancaster-Court.

Q. How long have you been in practice?

Moffatt, More than six years. I was sent for to Justice Cox's the latter end of April, but I cannot charge my memory with the day, though I believe it was near the twenty-eighth; there I found Mr. Klik, and was told for what offence he was brought there. I was desired to examine this child, so I went up stairs with the justice and Mrs. Stevenson, and we examined her. I found there had been a forcible entrybut cannot take upon me to say by what; by means of which her parts had been torn. Upon looking at the soreI thought it had an appearance different from what will happen in a common laceration. However, as the prisoner's character was more immediately concerned, I was particular in the account I gave of this. I thought the appearance of the fore denoted the venereal infection, but I said I could not take upon me to say it was the venereal complaint, and that it might have happened through the tearing of the parts; then we came down stairs, and agreed to examine Mr. Kirk. He was called into the little back room, but we found he was so particularly diseased in those parts, with two very great rupturesone on each side, that the two together would appear as big as my head; by means of these the skin of his members were so drawn over, that you could not see them, and on this account we both of us at first sight thought he was a person incapable; but upon recollection we chose to inspect the parts more strictlyafter which we found the penis was capable of being produced. We afterwards examined his linnen, and found thereon such sort of stains, as are generally at the latter end of venereal runnings.

Q. Did you find he had got the foul disease on him?

Moffatt. I cannot positively say so, though there were such appearances which induced me to believe he had had she venereal runningbut near to a cure. Justice Cox bound us over.

Q. From your inspection of the child, can you take upon you to swear that she had been abused by some man ?

Moffatt. She has had her parts torn by means of some forcible entry.

Q. Do you from the best of your judgment think she has the venereal infection?

Moffatt. I do,

Q. From what you observed of the linnen of Kirk, do youor do you not believe he had the remains of the venereal taint upon him?

Moffatt. I cannot positively say that it was so, but according to my opinion it was.

Q. Do you believe, from inspecting him that he was actually capable of committing this?

Moffatt. I do.

Q. Did you see the child the same day that you was before Justice Cox?

Moffatt. I did.

Cross-Examined.

Q. What was the opinion you gave in before Justice Cox; did not you declare it as your opinion that he could not be capable ?

Moffatt. At first we thought him incapable, but upon a more particular examination we found he was.

Q. Can you say upon your oath that he was capable to do it?

Moffatt. I cannot say, for I never saw him in such a situation.

Q. Might not a gleet make those marks on his linnen that you saw?

Moffatt. It might, or it might not; I must submit that to the judgment of the Court. It is probable it might have happened from a venereal complaint, but I cannot say whether it did or not.

Q. Will you say the child had the venereal complaint?

Moffatt. I will not say so, but I believe so.

Mr. Stevenson. I was at Justice Cox's, and went up stairs with the mother and the child. I examined the child, and found the private parts very much lacerated and inflamed. The child told me Mr. Kirk used to set her upon his knee, and used to put his finger into her.

Q. From your inspection, do you think the child has been abused?

Stevenson. I do, but with what I cannot tell.

Q. Do you think she has now the venereal complaint upon her?

Stevenson. I will not swear it, but to the best of my judgment I really believe she has. Then I said it would be proper to inspect Mr. Kirkif he will give us leave; and at our first inspecting him we thought it impossible, he having a double rupture, and the penis intirely hid from our sight; but we produced the nutand great part of the penis.

Q. Do you thinkfrom your inspection, he was naturally capable of an abuse of this kind?

Stevenson. I really believe he was.

Q. Do you think he had the distemper upon him?

Stevenson. We discovered that the nut of his yard did not seem to be affected, but there were stains upon his linnen.

Q. What did you think the stains proceeded from?

Stevenson. I will not take upon me to swear, but I think it was venereal.

Cross-Examined.

Q. Can that distemper be communicated by the finger?

Stevenson. Yes, I think it may, especially to those parts. There have been instances of people's being distemper'd that way from women, by applying matter to the part, but I do not think he was in so bad a way as to do that.

Mary Anne Oswal < no role > . The prisoner has a place in the Stamp-Office, and his wife keeps a school for French, English and work, for girls, and he only teaches English when he is not at the Stamp-Office; but I have heard he is not there above six hours in the week. I had two children at that school.

Q. Do you know Anne Brown < no role > ?

M. Oswal. I do. My children informed me, that when he was teaching the little children English, he would put his hand up their petticoats, and that some of them were sore : they also told me that Anne Brown < no role > was one of those he served so. Upon this information I told a neighbour of mine (whose name is Mrs. Dollar) in order for her to tell the child's mother of it. The child told me he had done to her as mentioned by the last evidence.

Mrs. Brown. I am mother to the child: she has gone to school to the prisoner's wife for near two years: my servant used to carry her there and her dinner, and she frequently staid till evening. I was sent for by Mrs. Dollar about the latter end of April, who informed me of this affair. I had the child brought out of the nursery, and asked her where she had been with Mrs. Dollar; she said, to give an account of what Mr. Kirk had done to her. I was up stairs with the surgeon at the examining of the child, and found her extremely hurt, and in such a condition, that I never saw any one of her age in before. She was very red, it looked like skin rubbed off from within, and she complained of being very sore. The child told me he used to put his hands up her petticoats.

There being no other evidence against the prisoner than hearsay from the child's mouthit was not juged sufficient; he was therefore acquitted , but detained to be tried on another indictment at Hicks's-Hallfor an assault, with an intent to commit a rape, &c.