Sleepwalking seems to have been first used as a defence to murder in 1846, when a wealthy Bostonian killed his mistress because she would not give up her job in a brothel (Massachusetts v Tirrell). He then set fire to the place and fled to New Orleans. Tirrell’s acquittal owes more to the brilliance of his lawyer, Rufus Choate, than to medical science.
The first British case appears to have originated in the early hours of 4 January 1859. Detective Sergeant Simmonds was on patrol in East (now Chiltern) Street, Manchester Square, W1, when he heard a woman screaming, ‘Save my children. Oh my children’, from a first-floor window.
The woman was Esther Griggs. While climbing the stairs, Simmonds heard ‘something’ thrown through a pane of glass. The something was Griggs’ 18-month-old daughter, Lizzie, unconscious with head injuries; ‘my children’ were three infants. Griggs claimed to have been sleepwalking and dreaming that the room was on fire. Her landlady said she’d been ‘drinking’.
Although she was committed for trial on a charge of attempted murder, a grand jury at the Old Bailey refused to present a true bill and Griggs was discharged.
And so began a sporadic series of sleepwalking defences. In 1961, a US serviceman stationed in Essex, Walter Boshears, was accused of strangling Jean Constable in his sleep. He had been drinking all day and had picked up Jean and a young man in a pub. They all went to Boshears’ flat, where they all had sex. The three then took off all their clothes and lay down by the fire. At around 1.45am, the man woke up and left. Boshears woke up two hours later and found he had strangled Constable. He made a half-hearted attempt to bury the body but was soon traced.
The prosecution said ‘attempted rape’. He said ‘in his sleep’. Defended by Gerald Hines QC, after his surprise acquittal Boshears returned to the US, was discharged from the forces and died in an accident a short time after. Later, Lord Eldon said that the verdict should have been ‘Guilty but asleep’.
James Morton is a writer and former criminal defence solicitor
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