Date: 4 Dec 1931
James Kitchen was shot at his farm.
His father was tried for his murder but acquitted. His defence claimed that his dog knocked the gun over causing it to fire. The trial was stopped by the judge whilst the pathologist was on the stand, stating that the prosecution’s case was pure speculation.
In his statement, the father said:
I board at home and sleep up the village at Gedney Dyke. About quarter to eight on Friday 4 December I got the gun from the house. I took it round the farm with me when I went round the traps. When I came back to the yard I stood the gun against the meal house wall. On the right-hand side as you go to the door. The gun stood leaning against the wall. It was loaded in both barrels and both hammers were up. My idea for leaving the hammers up was so that it would be ready if some geese came over. After I chopped the kindling I started to level the muck in the crewyard. Jimmy came into the yard at half past eight and got his shovel out the meal house where his dog was. He let the dog out in the yard. He came and broke a brick. He said it was a hard brick. He said, 'Dad have you got a soft brick?'. I said, 'No'. I saw him scour the shovel with the brick against that pool of water. I heard the gun go off. I saw him roll over and heard him say 'Oh', very loudly. I went and called two other people. I did not touch him before I called the two other people. I helped them to carry him into the barn. He was alive then and was groaning. There was only Jimmy and me in the yard at the time and his black retriever dog which was running about. When Jimmy rolled over the dog was near him. I was about 10 yards away levelling muck when the gun went off.
The shot was heard by a painter that was cycling along the Marsh Road with his wife at the time. He had lived a bit over a mile from the farm and had left his house at 8.10am and had been cycling along on the right side of his wife. He said that as he passed a gate at about 8.20am he heard the report of a gun. He said that the gate was about 200 yards from the yard of Brook House Farm. The man identified the road and positions that he had been in in the photographs presented in court. He said that as he was passing the house he saw the father walking towards the house. He said that he was about half way between the little stack and the house facing him. He said that when the father saw him he immediately turned around and hurried back towards the farm buildings. He said that the father was going as fast as he could go and that when he got to the gate the father was halfway between the stack and the meal house and said that he ran through some water which he saw splash up. He said that the father didn't speak or call to him and that after he passed the gate he didn't see him again. The painter said that he first heard that there had been a tragedy at the farm at about 4.30pm and that he gave his statement on 11 December 1931.
The painter said that he knew the farm pretty well and said that if a person was leaving the crewyard and going to the house for help he would traverse the line that he saw the farmer taking. He also said that if after he had got clear of the buildings and he saw men at work on the land behind and to the north of those buildings, in order to get their help, it would be necessary for him to go in the direction he saw him take when he turned. He also noted that he didn't see the farmer look over his shoulder or anything like that just before he turned to go back.
The painter’s wife said that she had left her house with her husband at 8.10am and that as she was cycling passed Brook House Farm she saw the farmer between the yard and Brook House going towards Brook House. She said that the farmer had the side of his face to her at first and then turned and saw her. She said that when he saw her he turned round and went back in a great hurry. She said that she next saw him as she was nearer the gate by which time he was going towards the low building and she said that she noticed that he went in a pool of water that splashed up.
One of the men that had come to the assistance of the farmer after the shot was a small holder who lived at Brook House farm. He said:
‘On morning of the 4th December, I was potato riddling with two other men. We were in a field to the westward of the farm buildings. We were working near the two heaps of dark earth above the top of the second post from the left of the fence. That is about 120 yards going round the roadway from the crewyard and a 100 yards across the field. The farmer came down the roadway towards the grass land about 7.30am. He was carrying a gun. It was a gun similar to the one shown me. He said, 'Good morning' or something like that. About 20 minutes later he came back. He stopped and spoke to us. Then he went towards the crew yard. He had the gun with him and a rabbit trap when he came back. Before he went to the crew yard one of us said something about worrying or looking miserable. He said 'I bloody well don't worry. There's enough buggers worrying now without me'. He stood there a short time nothing being said and then left us. Later about 8.25am I heard the report of a gun from the direction of the yard. About five minutes after the farmer came running down the roadway towards us shouting 'Come on, Jim is shot'. I then went towards the buildings with the other man and the farmer. There we found James Kitchen. He was lying in front of the meal house door on his back. His head was towards the main road and his feet towards the meal house door which I think was shut. He was alive. I spoke to him and with the farmer fetched a tray. One man remained with James Kitchen but the other man had gone for assistance. We put James Kitchen on the tray and carried him into the barn round by the meal house through the west door. When I arrived at the yard James Kitchen was bleeding slightly. After we had moved him there was blood where his body had been. After we had got him into the barn he spoke. I am not sure if the farmer was present. I remained with him in the barn until he died. Another man was also with him. When we first went into the yard I saw a shovel similar to the one shown me lying in a pool of water. The pool was about two foot or more from the meal house door. There was also in the pool part of a brick similar to the one shown me. I also saw a gun which was lying in front of the meal house door. I did not touch the gun. I didn't see anybody else touch the gun before the police sergeant came. I saw the sergeant unload the gun. After the report of the gun when the farmer came to fetch us I noticed a black retriever dog on an allotment about 60 yards from the yard. I don't remember seeing the dog again. The dog belonged to James Kitchen. I know the relations between the farmer and the dead man were not of the best.’.
When the man was questioned he said that he knew that James Kitchen lived in the front part of the house but said that he didn't know that the farmer was dependent on James Kitchen for his food although he knew that he had his meals there. He said that the dog was called Prince. He said that from where he was working it was only possible to see the back of the buildings and said that it would have been necessary for the farmer in coming to them to go round the back of the buildings in the direction of north. He said that when he first saw the farmer he was not running. He said that when he asked the farmer how James Kitchen had been shot the farmer had said 'I don't know'.
A doctor arrived at 10.20am on 4 December 1931 and said that he found James Kitchen in the barn dead. He said that there was a penetrating wound on his left side over the ninth and tenth ribs just behind the vertical line of the arm pit. He said that there was no sign of bruising and that when he probed the wound he found that it went in to a distance of six inches in a slightly downward direction from the horizontal and that there was no exit wound. He said that there were no other wounds and his body was still warm and estimated that he had been dead for about an hour and a half. He said that there was no scorching or singeing.
A policeman arrived at 9.20am. The policeman said that after the farmer was questioned the farmer showed them the position of the gun where it had been leaning against the wall. He said then that the farmer showed him the position that James Kitchen would have been when he was scouring the spade in the water saying that he was stooped with his back to the meal house door and his head to the roadway and that his feet were on the edge of the pool of water nearest the meal house. The policeman said that the farmer showed them how he had been standing with the spade in his left hand and the brick in the other and saw him imitating the movement of scouring. The policeman then said that the farmer said 'This is how he was as near as I can say. His dog must have knocked the gun over'. The policeman measured the pool of water and found it to be four feet long and two feet wide with the distance from the meal house to the edge of the water being three feet. It was noted that the photos were taken later on 15 January 1932 when the pool of water was gone but a brick was used to represent where the pool would have been. The policeman also said that on 4 December 1931 the ground outside the meal house was also very muddy but in the photographs taken appeared to be very dry.
The police man said that he had never heard of a gun being discharged by a dog by accident.
A newsagent said that on 6 December 1931 the farmer came in to see him to enquire whether James Kitchen had been insured with the Daily Mail and the newsagent said that he looked the details up and found that he was and agreed to write off to the Dailymail for a claims form.
A coal yard foreman that lived in Duke Street, Wisbech said that he had taken the shotgun to the farm in October 1931 to do some shooting there and that he had then left it in the charge of James Kitchen telling him that he could use it if he wanted. He said that when he left the gun it was in perfect condition and that both the trigger pulls were rather hard.
The coal yard foreman also said that he had been to the Anvil pub several times with James Kitchen and said that one evening he had been there with James Kitchen about a month or two before Christmas when the farmer came in shouting and was rather excited. He said that James Kitchen said 'What the hell are you shouting about. Everybody will know where you are'. The coal yard foreman said that he treated the farmer to a pint and that he and James Kitchen then went off to another pub. He said that a few moments later the farmer came in and said, 'I am not wanted', and all that sort of stuff. He said then that he and James Kitchen left the pub and that the farmer followed them and then said to James Kitchen 'You don't bloody well want me. There will be an end to this. I'll do you in. I'll cripple you'. The coal yard foreman said that he told the farmer 'We don't want a scene, we will clear off' and that they then left the farmer.
The post-mortem was carried out in the barn by a registered medical practitioner from the University College Hospital. He said that James Kitchen was a well-nourished man about 5ft 4in tall but that his right leg was about half an inch shorter than the other. He also said that his right knee was stiff and could not be bent and was surrounded by scars of previous injuries and operations. The pathologist said that he noticed some gun boots in the barn and said that if they had been worn by James Kitchen then they would have added about one and a half inches to his height.
He said that he found a large oval gunshot wound on the left side of the chest about one and a quarter inches by one inch which was situated at a height of 3 feet 8 3/4 inches above the bottom of his left heel and 6 inches vertically below his left armpit and 6.5 inches horizontally left of the spine. He said that a wad was found in the bottom of the wound and that the general direction of it was downwards at about 55 degrees. He concluded that death was due to shock and loss of blood due to a gunshot wound to the chest.
He said that if at the time of the shot James Kitchen had been stooping and bending forwards the height of the wound would have been about 2 feet above the ground. He said that if the gun was knocked on to the ground and accidently discharged it could not have caused the wound unless James Kitchen had been lying on the ground with his left arm moved away from the left side of the body to uncover it, in which case it was possible that the wound could have been inflicted.
He said that he carried out some experiments on 11 January 1932 during which he attached to the body of a male model, 5ft 4 1/2in tall, a rod in the exact position and projecting at the same angle and direction as James Kitchen's wound. He said that it could be seen at once that when the model stood erect, the injury could not have been received accidently, suicidally or homicidally. He said that he found on testing different position with the model standing sideways to the gun and slightly turned away from it and with the body bent slightly forwards and tilted slightly to the left with the weight of the body on the left foot the rod fixed to the body came into alignment with the gun held three feet away at the shoulder. He also said that if the body were bent slightly more forward the alignment with the gun occurred with the gun held in the hands and not at the shoulder. He concluded that the injury could not have been self-inflicted but that it was caused by another person firing either from the shoulder or from the hip.
The pathologist said that he had had one case before where a gun had been discharged by a dog by accident saying that it was a case where a man had been out shooting and that he had after put his loaded gun in the back of his car with the dog and that the dog had caused the gun to go off killing the owner. He said that on that occasion that it was clearly an accident and so no further examination or testing was carried out.
A gunsmith for the prosecution said that he examined the gun and said that it was a twelve bore double barrelled hammer gun by Dyke. He said that it was of cheap quality and about 10 years old. He said that it was of a modern design and in working order with the exception that the pulls were heavy. He said that a standard pull for that type of gun was 4 pounds in the right barrel and 5 pounds in the left barrel. However, he said that the pull on the gun he examined was 15 pounds in the right barrel and 7 pounds on the left. He said that the left pull was 2 pounds heavier than normal making it less likely to discharge accidently. He said that the gun was in good condition excepting a few marks of wear and tear.
He said that if the hammers were cocked then it would be impossible to fire except by pulling the triggers and said that it was not possible to jar the gun off from full cock.
The gunsmith said that he was shown James Kitchen's overcoat. He said that there were no signs of powder blackening or scorching and that he found a hole 13/16 of an inch wide and 1 1/16 inches long and said that he then carried out some experiments firing the gun at various distances of 6, 12, 18 and 24 inches into cloth and then shots every 6 inches from 6 inches to 72 inches into leather and said that the hole in the leather fired at a distance of 36 inches was most like the whole in the overcoat and as such it was impossible for the gun to have been in James Kitchen's hands when it was fired. He also said that when a gun leaning against a wall falls down and jars off, it discharges either along the ground or in an upward direction.
The gunsmith said that he was also involved with the experiments carried out by the pathologist and concluded that the gun could not have been fired by James Kitchen and that in his opinion that the gun had been in the hands of another person when the shot was fired. He also said that a retriever dog could not have discharged the gun by hitting it with his tail. He also said that it would have been impossible for any dog of any description to have fired the gun.
However, the defence presented three other gun experts. The first, who was a retired Major in the Royal Artillery and had spent 25 years in the specialist study of firearms and ballistics and had written several technical books on firearms including three recent volumes entitled 'The Modern Shot Gun', and wrote articles for a magazine, said that the gun was unsafe and that the expert for the prosecution was categorically wrong on several of his determinations. In particular he said that if the prosecutions gun expert was saying that the gun was not a rebounding lock catch then he was wrong. He said that it was, but that it was not working. Secondly, he said that if the prosecution expert was saying that the gun could not be discharged accidently then he was wrong and said that in his opinion the gun was dangerous and that a blow on the stock could discharge the gun.
He said that when he first saw the gun he became suspicious. He said that there were two things that made him think that there was something radically wrong with the lock. First, that when the gun was in the fired position that it was possible to push the hammers forward which he said should not be possible with a modern gun in perfect condition. He said that ordinarily the tumbler could only be rotated backwards because the sear in the position with the bent would prevent that. However, he said that in the gun produced it was possible to push the hammer forward from the rebound position.
He said the second condition that made him suspicious was the fact that in any gun in perfect condition there should have been a slight, but perfectly distinct feeling of play on the trigger when the lock was at full play. He said that that was to allow for the possibility of any shrinkage caused by damp or dryness. However, he said that in the gun produced that the trigger was absolutely rigid when the left tumbler was at full cock.
However, he also said that it would be quite impossible for an expert to tell what condition a gun was in without taking out and examining the lock, which the prosecution expert had not initially done, which the Major said he then did. He said that when he did so he noticed another defect with the gun, namely a split in the wood of the stock where the lock plate bears on the wood. However, he said the full significance of that didn't strike him until he took off the lock and found that as a result when the lock was at full cock that the sear tail was pressed upwards by the wood and that that constant pressure between the sear tail and the wood had caused the split in the wood. He said that that meant that when the lock was at full cock that the sear tail was not only resting on the trigger but also pressing on the wood of the stock. He also said that that meant that play between the trigger and the sear was eliminated. He also said that thirdly, it prevented the sear nose from engaging in the rebound bent after the lock was fired.
As such, the gun expert concluded that the gun was highly dangerous and peculiarly liable to accidental discharge. He also said that if the gun had been out in the rain on 3 December 1931 then it would have been still more liable to accidental discharge on the following day owing to the swelling of the wood.
The gun expert also said 'If the prosecution gun expert said that a gun when it jars off is only liable to discharge either along the ground or in an upward direction, I would say this is rubbish. If, when falling, a part of the stock hit the wall it would be impossible to say in what way the shot would go. If it were hit by a heavy dog the gun would be liable to fire and the shots go in any direction.'.
The gun expert also said that the sources of errors in the experiments carried out by the pathologist were so great that he could not understand why any man with scientific training could take them seriously. However, he did agree that the gun could have been fired by another man from the shoulder or hip.
The gun expert said that he tried to jar the lock by allowing it to drop once onto a carpeted floor but said that that it did not cause the trigger to fire. However, he said that that type of fall would not be similar to a fall against a rough wall.
The Major also suggested, in private that the gun expert for the prosecution had tampered with the gun by filing down a protrusion to support his case but did not press his allegation until after the court case. The allegations were later reviewed by the Home Office after the trial, but it was concluded that they were essentially unfounded.
Another gun expert for the defence was a director from Holland and Holland Ltd who managed their Harrow Road factory. He said that when he examined the gun he found that the rebound bent was not working. He said that he put a cap in the gun and cocked the hammer at half cock and said that it in that position it should have been impossible to have fired and that it should have been perfectly safe, but said that when he gave the gun a rap on the hammer he was able to discharge the left lock. He also noted that when the hammer was at full cock that the trigger was tight on the sear. He said that he took the lock out and immediately saw that the lock edge below the sear tail was broken and that because of that the sear tail had dropped 1/32 of an inch below the lock plate and in consequence was resting on the wood which also made it tight on the trigger. He said that at half cock the pressure was sufficient to hold the sear out of its bent which made it highly dangerous at either full or half cock. He then said that in wet weather the wood would swell and lift the sear higher out of the bent at full cock. He also said that the tests that he had carried out were not fair as to the condition of the gun on 4 December 1931 adding that the constant handling of the gun might have caused the wood to give way and for the sear nose to go further into the bent which might have made the trigger pull heavier than it was on the day of the shooting.
The gun was also examined by a third gun expert from WW Greener Ltd who said similar things.
The farmer was tried at the Old Bailey but the judge stopped the case whilst the pathologist was on the stand after saying that the case presented by the prosecution was ghastly speculation. The trial took place on 11 and 12 April 1932.
After the trial, an internal private enquiry was held regarding the evidence presented by the prosecution by the Home Office. The inquiry examined allegations by the Major and reasons for the difference in measurements of the protrusion of the sear tail taken in March 1932 and in May 1932 of the lock in the fired position. The enquiry also addressed allegations raised by the Major that the gun had been deliberately tampered with, presumably to support the case of the prosecution.
The report included a note in conclusion, regarding the issue of the differing measurements stating that at the second measurement of the sear tail, which was dropped, could have been caused by deepening of the full cock bent, ie by allowing the nose of the sear to be raised a very little higher by the sear spring. It stated that a very slight deepening of the bent and consequent raising of the nose would cause a correspondingly greater lowering of the tail of the sear and as such a differing measurement.
For the preliminary proceedings before the magistrates, the prosecution gun expert had examined the gun on various days between 26 January 1932 and 2 March 1932 but had not taken the gun apart saying that he was of the opinion that that his tests on an exhibit of that character should more properly be carried out without dismantling.
However, the gun experts for the defence stated that no expert would examine a gun without taking the lock out and examining it and the gun was then later dismantled several times which led to accusations by the defence that the prosecution gun expert had filed down a part of the mechanism to support their case.
The Major, who had made the complaint against the prosecution expert, had examined the gun at Holbeach Police Station on 1 March 1932 and then later on 23 March 1932, and said that the gun had been tampered with between these dates. In his account, he stated that when he had measured the protrusion at full cock on 1 March 1932 he had found it to be 1/20in but that when he had measured it on 23 March 1932 he had found it to be 1/80in and claimed that the prosecution gun expert had reduced the protrusion by filing away the bottom of the sear tail with the object of being able to swear at the Old Bailey hearing that there was no appreciable protrusion and that in consequence the gun was not liable to accidental discharge. The Major also said that the alleged tampering could be proved not only by that alteration in the protrusion but also by the alteration in the shape of the sear tail from a D shape to a flat as a result of the filing, and also by the presence of certain marks, some resembling file marks and some the marks of a vice, which he said were not visible on the sear tail when he first inspected it.
It was said that the gun, which was being held at Holbeach Police Station was handed over to the prosecutions gun expert on 8 March 1932 and returned on 23 March 1932 and that during that period the Major said that attempts, by an expert, had been made to rectify the malformations that he had complained of with the gun that supported his case that the gun was dangerous.
The report stated that it was certain that no change could have been made between 1 March and 8 March whilst it was at the police station.
It was stated that when the Major came to the police station with another man on 23 March to examine the gun they had taken it in the company of a police sergeant to 8 Bream's Building, Chancery Lane in London where they had come to the conclusion that the gun had been tampered with. It was then suggested that they call the prosecution gun expert immediately to answer the allegations but that the Major had then, after consultation with his colleague, declined stating that although they were satisfied that the gun had been tampered with that they were unable to prove it. They then agreed to say no more about the matter and said, 'We don't want what we have said to go out of this room'.
The report stated that it was, considering the Major having at the time on 23 March 1932 said that he was not in a position to prove his serious allegations, did not want to fall in with the sergeant’s suggestion of calling the prosecutions gun expert at that time and had said that they did not want any further word of the incident leaving the room, extraordinary that after the trial he should want to come forward with the allegations.
The report stated that the Major was in a very awkward and invidious position in making the allegations after the case but doing nothing at the time of examination on 23 March 1932.
The report stated that the gun was first received for testing on 18 December 1931 by the prosecution gun expert and that he had carried out some preliminary tests on the trigger pull and later carried out 31 shots. It was said then to have been tested and examined again between 19 and 21 December, and then again on 11 January by the pathologist and the gun expert before being taken to Holbeach Police station on 26 January 1931 at which point a little wax was put into the lock screw to seal it.
It was said that between 26 January 1932 and 9 February 1932, when the prosecution gun expert again examined the gun, that it was then examined on 30 January by a defence gun expert, on 3 February by the same expert and the Major, and then on 8 February by three other experts. It was said that on two of these occasions the lock had been taken apart and it was said by the prosecution expert that it was during that period that the crack or split in the guns stock that the Major complained about had appeared and that it had been cause by negligence in putting the gun back together.
The prosecutions gun expert also stated that when he examined the gun on 8 March 1932 he noted that it had been improperly re-assembled in the sense that it was not in the same condition as it was when he had originally delivered it on 18 December 1931 or in which it had been when he had handed it over on 26 January 1932.
Later, after the trial, the Major had purchased the gun from its original owner and the gun was later examined in the presence of the Director of Public Prosecutions by a gun maker who was ignorant of the reasons for the test and the protrusion was found to measure 1/16in but that when it was measured again by a Woolwich gun expert the protrusion was measured as 1/20in, which was the figure that all sides had agreed on before any alleged tampering had taken place.
The report made a general observation that there was no reasonable motive for the prosecution gun expert to make modifications as unlike the Major he was not a proper expert in that he didn't depend on providing expert opinion for a living or write books or articles for the press. It further stated that if the prosecution gun expert had tampered with the gun then he would have risked being prosecuted and going to jail.
The report further stated that if it were true that the prosecution gun expert had filed the protrusion down that it contradicted the evidence he had prepared in which he agreed with the defence that there was a protrusion and concluded that it that were the case it would have made him both a criminal and a madman.
In conclusion, there was no resolution regarding the shooting of James Kitchen.
After the trial, Prince, the black retriever dog, was purchased for a large sum by a butcher from Sutton Bridge, and was reported to have died about ten years later in May 1942.
see National Archives - HO 144/16364, HO 144/16363, CRIM 1/598
see Lincolnshire Echo - Monday 18 May 1942, p3