Appendix 5 ~ SUPREME COURT - CRIMINAL SIDE
The South Australian Register, Adelaide, Tuesday, August 20, 1850.
James Yates was brought up, charged with the murder of John Mansforth.
The prisoner pleaded not guilty in a firm tone.
The Advocate General the addressed the Jury - It is our very responsible duty this morning to investigate the most serious charge that can be brought against any human being, the murder of his fellow man. It is not my duty to enlarge on the particulars of this crime, and even if it were, every circumstance in this case could add to the horror and disgust which its recital must excite in th breast of every one. The prisoner and deceased were both in the service of a gentleman named Slater, and were inmates of the same hut, the latter being employed as shepherd and the former as hut keeper. Deceased was a military pensioner, of steady and respectable habits, highly esteemed by his employer, and had left a wife and family to deplore his loss. On the day preceding his murder (the 22nd ultimo) he had been to his employer for the purpose of receiving his quarter's wages, amounting to £6, and that gentleman, after paying him, had sent by him a message to the prisoner to the effect that he was to come to him on the 24th, as his engagement would terminate on the 26th, and another man was ready to take his place. This was on a Tuesday.
On the Thursday the prisoner did come to Mr Slater, and that witness would detail what then transpired between them. From some arrangements that had been made between the prisoner and deceased, the latter came to Hoile's public-house on the Wednesday, and there met him, and what occurred there would be related by the barman, Hawkesworth. The prisoner had seen him pay for a bottle of whisky with a six-pound cheque, and receive the change, amounting to about £4. Some time later he leaves the house, followed by the prisoner; and after the expiration of about twenty minutes, returns; complains to the waiter of ill-usage from the prisoner and from his persuasion leaves his money under his charge. He then goes away, taking the same road that he did before - the same which the prisoner had taken, it being towards their hut.
This was the last that had been seen of him alive. We then pass over an interval of about three hours, and find the prisoner at the house of the witness Titcombe, and there admitting that he had had a conflict with the deceased, to account for his thumb being cut. The Jury, also would well weigh some expressions mad use of there by him. He then goes to the hut of Adams, and there passes the night, and there as well as at Titcombe's his manner is strange, and his clothes covered with blood. That night he is sleepless, he walks about, mutters strangely. He has yet another object to accomplish, which accounts for his remaining so long near the scene of his crime, and where the evidence of his guilt are still existent. He has yet to receive the balance of his wages.
Had he obtained from the pocket-book of the deceased the paltry reward of his fearful deed, he might have escaped from the toils of justice but he is unprovided with that for which he had periled his life, and therefore next morning goes to his employer, and tells him that he had slept at the hut that night, but that Mansforth had not come home, his sheep having been brought home by two native women. He then quits his master's service two days before the expiration of his term of service, and comes to town by the mail cart. But Providence, in its inscrutable decrees, would not allow this barbarous murder to go unpunished and reserved for the humble agency of a native woman the discovery of the mangled body of the murdered Mansforth. The medical witness would prove, indeed medical evidence was hardly necessary to do so, that the deceased could not have met his death otherwise than be the hand of man, Near the body are found the instruments with which the crime had been committed - a bloody knife, corresponding to a wound in the abdomen, a large ironstone, and fragments of stick covered with blood and hair.
It was not necessary to inquire in what sequence the blows had been inflicted, or by what particular agency the life had been destroyed: it was enough for them to know that say one of them would have sufficed. On the Saturday the prisoner was apprehended in town by the police, whose vigilance in the matter deserves the highest praise, on information which had been promptly forwarded immediately after the discovery of the body. In his bundle were found clothes saturated with blood, and although that might partially accounted for by the cut in his thumb yet that wound no one could scarcely have shed the quantity with which everything that he wore was stained. But they would also remember that the only way in which he had attempted to account for that cut was that he had fought with deceased. He would now all witnesses to substantiate the statements he had made and he thought the case would be established so completely that the Jury would have no other alternative than, however painful to them individually, and awful in its consequence, to convict the prisoner. He then called.
William Titcume, butcher, residing at Skillogolee Creek. He stated that his house was about fifty yards from the "Port Henry Arms". About ten o'clock in the morning of 24th July, the prisoner came to his house and offered some fat for sale. Witness bought it and gave him 3s. 9d.. The prisoner then asked him if he had seen the old sergeant, under which name deceased was generally known. Witness then said that he had not. The prisoner remarked that he had promised to be there before him. He then went to the public-house, but returned an hour afterwards and came up to witness, who was working in his garden, and began talking about Van Dieman's Land. He also mentioned that he was going into the head-station of Mr Slater to make brush yards, and although some people could not agree with the old sergeant, he could very well.
Witness then went to his dinner and prisoner accompanied him. About an hour afterwards witness's wife said that the sergeant was coming, and the prisoner left their house. Witness next saw him about seven o'clock that evening, when he entered the room where they were having tea, she went up to the fire to light his pipe. Witness said, "Why, I thought you were gone to the head-station." He only said "No." His wife then remarked to the prisoner that he was bleeding, and must have been fighting with the sergeant. He denied it, and said that the old man had returned to the public-house. She reiterated the charge, and the prisoner replied that "Those who could see nothing could say nothing, and those who did see could say very little." She then told him to stand back from the fire place, as she had some bread there. He had blood all over his face and hands, and some spots of blood on his trousers. She then gave him a piece of rag to tie up his left thumb, which was cut severely, but it would not stop bleeding.
Witness then procured him some water to wash his hands in and the thumb was again tied up. He remarked to the prisoner that he feared he would lose the use of his thumb, as he himself had from a cut; and he replied that the old sergeant did take a knife to him. Witness said that "he must have had a deuce of a row with the old man for him to use a knife, and the prisoner said that "perhaps he had and perhaps he hadn't; they who didn't see couldn't say, and those who did see he'd take d-d good care should say nothing." He muttered something to himself, but witness could not swear to what it was. He then told him that, if he had been having a row with the man, he had better go and see Mr Slater.
He replied that he would and went away. Next morning about 7 he returned; and asked witness for the bag he had brought the fat in the previous day, though he had then said that the bag would be called for by the sergeant. He then left, saying that he would go and see how the old man and his sheep were getting on. On the afternoon of that day, Mrs Adams came to his house, and told him that she had found a dead body. Witness then went to where she described, Hawkesworth who galloped there, having arrived a few minutes before him, and about a mile from the public-house, in the direction of his hut, he found deceased's body. It was lying on its back, its skull and face beaten in, the brains gone, and the throat cut from ear to ear. From the appearance of the ground, witness should say that it had been drawn three yards from there the deed was done to some grass-trees, which concealed it from any casual passer-by. Deceased's bitch and two pups were just by, and around the body were broken pieces of stick, a stone, and an open knife. The ground had the appearance of having been the scene of a struggle. Witness also found a pocket close by. The knife resembled one he had seen in the possession of the deceased. The stone, fragments of stick, and knife produced were the same; there were covered with blood and hair. The bundle produced was the same that the prisoner left at his house. Neither witness nor Hawkesworth went so near the body at to disturb anything that was in the neighbourhood.
By Mr G.M. Stephen - The sticks were from a sheoak, and there were trees of that description growing close by. The stone was an iron-stone; there were several lying by, but none so large. The pocket appeared as if torn off the edge being frayed. Should say that the knife produced had inflicted the wound on the deceased's throat. Prisoner's thumb was very much cut when he called on witness, and would have caused the blood-stains on his trousers. The prisoner said that though he agreed with the Sergeant, very few people could. Believed deceased was sometimes passionate. Remembered a hut-keeper named House, but never heard that deceased had laid his face open with the handle of a frying pan. Did not know that the reason why the deceased did not live with his wife was that he was hasty and violent. There was no one present except Tobin, witness, and his wife, when prisoner came to his house on the evening of the 24th. He then appeared as if he had been drinking, but was getting sober.
By the Advocate General - The trousers produced are not the same that the prisoner then wore. Did not know the white handled knife produced.
John Hawkesworth, barman to Mr Hoiles of the "Port Henry Arms" stated that he was ell acquainted with deceased, who was known by the name of the Sergeant. Both deceased and prisoner were at the public-house on the 24th. The prisoner came about twelve o'clock and asked for a glass of rum, and told witness that he was waiting for the Sergeant who had promised to meet him that day. About two o'clock deceased came in, and the prisoner soon after joined him and deceased asked him what he would have to drink. He replied that he had been drinking rum, and deceased paid for glass of rum for him, and a pint of ale for himself. The prisoner put the glass of rum into the Sergeant's ale. This deceased refused to drink, and it was thrown away. Deceased then ordered another pint of ale, and he and prisoner began conversing. The latter said that he was going to the head station which is about four miles from the "port Henry Arms" and deceased observed that he had better remain that night in the hut, which is in another direction.
Some time after, the deceased, having finished his dinner, went to the fire to light his pipe. He then ordered a bottle of whisky, and paid for it with a £6 order. Witness gave him in change four £1 notes and some silvers. While he was doing so the prisoner came up and looked at what deceased was receiving. He then caught hold of deceased's blue shirt, and he turned round and asked prisoner what he wanted, who then left go his hold. The prisoner then made use of some insulting language to a female named Clare, who left the room. The prisoner followed her into the parlour, whither she had retired, and behaved so improperly that he was ordered out by Mrs Hoiles. Deceased meanwhile had taken his bottle and gone away. The prisoner, after saying that he had as much right as any one else to go into the parlour, so long as he paid his way, enquired of witness which way the deceased had gone and witness pointed him out going over the hill. The prisoner then left the house.
At that time he was not drunk, but merry. About twenty minutes after deceased returned very much flurried, and said that he had been insulted by the prisoner, who had stolen his bottle of whisky, and struck him on the shoulder. Witness then advised him to leave his money under his charge, and he accordingly gave witness three £1 notes, and a 5s. Burra order, from a pocket-book, similar to the one produced. He then left saying that he would put up his sheep, and witness watched him go in the direction of his hut, to within two hundred yards of where his body was found. The next morning the prisoner knocked at the door while he was in bed and witness said, "Hold on Sergeant," believing him to be the deceased: He then opened the door, and the prisoner entered and asked for a glass of ale. Witness told him he must wait until he could get the keys from his mistress, and mentioned what the Sergeant charged him with the previous night. He said he might or might not have struck the deceased.
Witness also told him of his conduct to Miss Clare and the prisoner expressed his sorrow, and determination to apologise. Miss Clare then entered, and remarked that the prisoner was covered with blood, and witness then saw that he had spots of blood all over his clothes, and that his thumb was tied up. This he accounted for by saying that he had cut his thumb the day before. He expressed a wish that Mr Titcume would get up, as he wanted a bag which he had left there the day before. He refused to wait for breakfast, alleging that he was in a hurry. The prisoner had said while waiting for deceased the preceding day, that when the Sergeant did come he'd open his eyes for him. He put the whisky ordered by deceased into an ale bottle. The broken glass produced appeared to have been part of it. In the course of the afternoon, from information he had received from Mrs Adams, he went in the direction where he had seen the deceased, rushed at him, and about twenty yards beyond he found the body, which presented the appearance detailed by the last witness. He gave similar testimony respecting the knife &c. as the witness Titcume and identified a bloody scarf produced as having belonged to deceased. Mr Henderson came up a few minutes later. The order produced was not part of the change given by witness. The prisoner left on glass of rum untasted.
By Mr G.M. Stephen - Had never seen the prisoner before the Wednesday in question. He paid for the tow glasses of rum he drank before deceased came with a shilling, and for his dinner with a crown piece. Could not say whether Mrs Hoiles served him with anything. He had a glass of ale with his dinner. The first glass of rum the Sergeant paid for the prisoner poured into the ale. He was partially intoxicated when he spoke indecently to Miss Clare, but his manner to her wan not that of a drunken man, When deceased returned he appeared rather frightened than in a passion, but he immediately returned in the direction that he had gone before. The prisoner had said tha afternoon this it was of no use returning to deceased's hut, since he had got him sent away. The prisoner told witness that deceased had brought the message for him to go into the head-station. The sergeant had been at the house the day before - that is, on 23rd. Had often heard that the sergeant was a bad hut-mate, but had never heard that he was passionate. Had never heard that he had slit open a man's head. The prisoner appeared anxious to make deceased drunk, in as much as he poured rum into his ale; that was not done offensively but apparently in good feeling. He did not appear confused on the morning of the 25th.
The Court, on application of Mr Stephen, then adjourned for a quarter of an hour.
On his Honour's entrance, Mr Stephen asked leave to have the witness Hawkesworth recalled. This was done and the witness replied, in answer to the learned gentleman, that the cork of the bottle appeared to have been drawn since he filled it for deceased.
John Adams, shepherd, residing about 400 yards from the "Port Henry Arms" in the direction of the head-station, was then examined - he stated that on the evening of the 24th ultimo the prisoner came to his hut, and asked for a light for his pipe. Witness assented and he came towards the fire for that purpose, and asked witness if he did not know him. Witness then recognised him as having been hut-keeper with the sergeant, and the prisoner said that he was going into Mr Slater's head-station to do some work. Witness then noticed some blood on his cheek, and asked him if he had been out there. He replied that he had not but asked for a looking glass to see his face in. This was brought, and it was fount not to be a cut but some spots of blood. He said that the old fellow (meaning the sergeant) and he had been having some words together, and that the former must have carried a big stick or knife with him, as his thumb was cut, and Titcume had told him that he wouldn't have use of it. He asked for some rag to bind it up and witness's wife got some rag and it was bound up.
Witness said that he did not think that prisoner would lose the use of his thumb from that cut. He then said that it was getting late, and that if witness would let him stay till morning he should be much obliged. Witness replied that he was welcome to do so as he was going to Mr Slater's. He then put his bundle on the sofa. and lay down, as he said his head ached. Next morning he got up and said he would go to the "Port Henry Arms" and get a glass of grog, as his head ached. Witness advised him to have a cup of tea, but he refused, and went away. The "Port Henry Arms" was in a contrary direction to Mr Slater's. The witness Mary Ann Adams was his wedded wife.
By Mr Stephen - Said at Police Office that the prisoner had told him that his thumb was cut in the scuffle between him and the Sergeant.
Mary Ann Adams, an aboriginal native, was brought forward.
The learned Judge said that he had recently examined this woman as to her religious knowledge, and had come to the conclusion that she was not fit to be put on oath. He then directed he to speak the truth, which she promised to do.
She stated that the prisoner came to her house in the evening of the 24th. and went to bed. Some time after she heard him get up and go out of the house, then come in again. He afterwards went out again and soon afterwards returned. She confirmed her husband's evidence as to the prisoner's conduct the previous night, and continued - On going out the next morning with her sheep, she saw the prisoner's dog and two pups in a gully, and going up found the deceased lying on his back under some grass trees. She thought at first that he was drunk, but seeing some fragments of stick, covered with blood went to the deceased and saw that he had been murdered. She was very much frightened, and gave information to Mr Titcume.
By Mr Stephen - Two strange men besides the prisoner slept in her house that night.
William Slater, JP, sheep farmer, stated that he resided on the Wakefield, and had a shepherd in his employ named John Mansford, whose hut was about five miles from the head-station, and two from the "Port Henry Arms". The last time witness saw deceased was at the head station on 23rd ultimo, when witness paid him his quarter's wages amounting to £6, by a cheque on the Bank of South Australia. He then told deceased that prisoner was to come in on Thursday, the 25th, as another man was engaged in his place, although his engagement was not up till the next Saturday. On Thursday morning the prisoner came. When he arrived witness was engaged and told him to wait a short time.
After looking over his account witness found that on the Saturday he would owe him 32s. less 2s. 6d. for stores which he had had and he accordingly gave him £1 9s. 6d. A man who was standing by owed the prisoner 8s. and asked witness to pay it and deduct it from his account. He did so, and paid him £1 17s. 6d. by cheque. Witness offered him some bushwork, but he said he did not understand it and wanted to get a place as a bullock driver. He then told witness that Sergeant had not been at the hut the previous night, but that his sheep had been brought home by two black gins. Witness remarked that he supposed the old man had been drinking as he had money and the prisoner replied that he did not know. Had not been able to ascertain that any blacks had been in the neighbourhood.
Went to the hut, and found the sheep had been properly folded and, from the appearance of the hut, no one had slept here that night though prisoner had said he had, In the evening, in consequence of information he had received, he accompanied Messrs Henderson, Warrimer, Titcume and Hawkesworth to where the dead body was lying. Identified it immediately as the corpse of Mansforth. The stone, fragments of stick, and knife were lying around it covered with hair. He then confirmed the other witnesses as to the general appearance the scene of the murder presented. On Saturday witness found the pocket-book produced, which was the one in which the witness entered his memoranda about the sheep, lying on the ground and the leaves strewn all about. The Burra order for 5s. produced was found by him blown against a grass tree. The pieces of a bottle in Court were also found by him in the same state as now, except that the cork had been since injured. The pocket-book, when found, seemed to have been hastily torn open. The ground was of a red clay, very hard, but not stony.
By Mr Stephen - Had never heard that deceased was of a violent temper. Remembered a man named Howe living with the deceased, and that, when that man left, he complained of being struck by him, but did not say with what weapon.
By the Advocate-General - The deceased cam into his employ last Christmas, and always conducted himself remarkably well.
By Mr Stephen - There had been four hut-keepers living with him during that period besides the prisoner.
James Henderson, of the firm of Hamilton and Henderson stated that he was at the "Port Henry Arms" on 25th ultimo, and in consequence of some information he received went to a place where he saw a dead body. It was lying on its back, its face and forehead beaten in, the brains gone, the throat cut from ear to ear, a stab through the lip, a cut across the left hand, the right hand bloody but not wounded. The body way lying in a pool of blood, but appeared to have been dragged some three yards along the ground. The trousers had been unbuttoned, but forced over again. On looking around he perceived a knife, pieces of stick, and a large stone. The stone and sticks were covered with blood and hair. The pocket produced was found near the spot and was stained with blood. The hair on the stone and sticks was the same colour as deceased's.
By Mr Stephen - The remains appeared to have been mutilated by dogs, which had probably eaten the brains. He saw the remains a second time, and found that since his first visit the lower jaw had been carried away. There were a kangaroo bitch and two pups by the body, which growled at him when he approached.
By the Court - Not more than a quarter hour transpired between the period of his visiting the body.
Charles Houlton Webb, surgeon, stated that he resided at Clare, about eight miles from the "Port Henry Arms". On Friday, the 26th ultimo he examined the body of deceased and found the following injuries. He would first premise that death had probably happened about 48 hours previously. The forehead, left cheek, and skull were obliterated, and brains were entirely gone. The lower jaw was broken and out of the socket, the teeth were gone, the upper jaw broken away but handing to the skull by some of its membranes. There was a stab in the lower lip. The throat was cut from ear to ear, dividing all the arteries, and there were contused wounds on the arms and hands. On the left side of the abdomen there was a stab about five inches deep and on the right, below the navel, a bruise as if from a kick or fall. There was a mark of TM in blue ink on the right arm; this had been done apparently several years before. The injuries on the face were inflicted with some heavy blunt instrument, and could not have been caused by dogs having access to the body after death. The stone produced would have caused them.
No bruise could be produced by a blow after death. Such a stick as the one produced would have inflicted the injuries on the arms. At the time of the inquest, the stick and tones were covered with blood and hair. The wound in the abdomen corresponded exactly with the knife produced. In his opinion deceased came to his death through the various injuries he had detailed. The wound in the abdomen would, most probably, halve proved mortal, but not immediately, but wither the fracture of the skull or cutting the throat would have caused instant death. The trousers produced had been taken off deceased by witness, and had one of its pockets, the left hand one missing; the pocket produced exactly corresponded with them. The drawers produced had a cut corresponding to the wound in deceased's abdomen. Some part of the wounds might have been inflicted by deceased himself; but he would have been dead before he had finished cutting his throat, in the manner it was cut.
By Mr Stephen - The whole of the injuries could not have been done before the throat was cut, judging from the quantity of blood described to have been about. The separation of the carotid artery immediately after death would cause an effusion of blood nearly as great as if it was cut during life. That great vessel when cut rapidly emptied the body of all its blood.
Mr Slater recalled said the body of the murdered man was that of John Mansforth.
John Hughes, driver of the mail cart, stated that he drove the prisoner, on the 26th July from beyond the Para to Hawkins's, near the Dry Creek; he there got into another cart which brought him to town.
Inspector Alford deposed to the apprehension of the prisoner at the "City Bridge Hotel". He had with him a bundle, in which was a pair of trousers, a pair of blankets, and other articles stained or spotted with blood. He said, in reply to witness, that he never was at Port Henry. When told he was charged with murder, he said, "Murder?" and on observing the witness at the blood stained clothing he said he was a butcher. Witness directed constable Gors to search the prisoner, who was then locked up.
Carl Gors, constable in the metropolitan police, stated that he searched the prisoner at the station-house, by direction of Inspector Alford. The witness described the matters taken from the prisoner's pockets. He observed some spots of blood on his braces. Among the things found on the prisoner was a conditional pardon, in the name of James Yates.
Mr Stephen - He has never denied his name. What purpose is that put in for? It is not evidence.
The Advocate-General - It was found on his person.
Joseph Clark, Barrack Sergeant, stated that, under the direction of the Commissariate he occasionally paid the pensioners. A pensioner of the name of Mansforth appeared at the Commissarite Office on the 3rd of April 1850. He (witness) could not say that the writing in the pocket book produced was that of the pensioner Mansforth. he did not call for his last quarter's pension, due in July.
Mr Stephen - If he ever calls for his pension it will be paid to him. He (witness) could not say that the man was dead.
The Advocat-General requested the police to hand over the articles referred to in evidence for the inspection of the Jury; while doing so Captain Berkely was reprimanded by Mr Stephen and adminished by his Honour for addressing remarks to the Jury.
The learned Judge afterwards observed that the conduct of the Police apeared to him to be verry correct, but nothing could be less so than to offer any remark to the Jury when handing things to them for inspection.
Captain Berkely explained that he simply cautioned the Jury not to remove some hairs that adhered to the blood stained stone.
The learned Judge expressed himself saitsfied.
Mr Stephen then addressed the Jury for the defence. He could not, he said, expect the same attention from them, wearied as they must be in bodyt and mind, as they doubtlessly would bestow it he had the advantage of addressing them at an earlier period of the day. He much regretted that both the learned gentlemen who were named by his Honor as likely to assist in the defence of the prisoner, had declined that onerous task, on the ground that his Honor had not made the request personally to them. It really was a task involving such responsibility, that few gentlemen would undertake and it would also entail a considerable loss especially as have gentlemen acted as attorneys as well as barristers. In every point of view he (Mr Stephen) much regretted that refusal, for he felt that on his exertions in some degree depended the life of the prisoner at the bar.
He was however satisfied that he could convince the Jury that the prisoner was not guilty of killing the deceased with malice aforethought, a necessary ingedient in the dreadful crime of murder. So certain was he that he could do so, that he would not attempt to rebut the presumptive evidence relied on by the Crown, that the prisoner inflicted the blows which occasioned death in that lamentable case. He would admit that, but would also show that the manner did so when he was not in perfect possession of his self-command, or that he had not acted on premeditated malice of murderous intention. He would call the attention of the Jury to the evidence of the barman from which it appeared the prisoner had drunk three glasses of rum and although drunkeness did not exermpt a man from the consequences of crime, still, in the capital charge of murder, it was competent to the Jury to take that fact into condiederation, when weighing, as they were bound to weigh, the motives sheich led to the outrage, whether it arose from the imulse of momentary passion or from a deliberately formed design.
The learned gentleman then called attention to the fact that the murdered man carried away a bottle of whisky, and that the prisoner had in his intoxication insulted a yooung woman in the public-house - that nothing could be more reasonable than to suppose that a quarrel and fight ensued between the friends, the murdered man and the prisoner. That case rested wholly on presumptive evidence. The leaned Advocate had an undoubted right to draw any reasonable inference from the facts, and he (Mr Stephen) had an equal right to draw equally reasonable inferences favourable to the prisoner from the same facts. The learned Advocate referred to certain points to aid the judgement of the Jury, but fortunately for the prisoner not one of these points applied to the present case. The prisoner was not sober.
He had not threatened the deceased, nor was he shown to have laid in wait for the deceased. Then came the consideration of the temprament of the deceased. The very fact that he left his family and retired to the comfortless life of a shepherd in a remote station, would prove that he was a man of bad temper. In addition to that it was shown that he was a bad hut-mate, and that there were no less than four hut-keepers employed by Mr Slater in the short space of nine months. If the Jury were to take the words of the prisoner against him, they were equally bound to take them in his favour, and believe him when he said he had a shuffle with the Sergeant, who drew his knife and cut his (the prisoner) thumb. If then a scuffle were admitted, and he did not think it could be denied, he would call attention to a decision by Lord Tenterden in the King v. Lynch, 5 Carrington and Payne. He also referred to the direction (Chief Justice Tyndall) in the case of George Hayward, 8 Carrington and Payne, both cases of stabbing, but in one the crime was committed in the heat of passion, the other after time had elapsed to allow passion to subside.
In one case the prisoner was found guilty of manslaughter, and in the other very properly murder. He dwelt on those cases because they placed in a strong point of view the proper law of the subject. Ant there he would call attention to a fact that would prove incontestably the importance of a prisoner hireing a counsel to watch over the evidence advanced against him - a fact that had, he firmly believed escaped the notice of every other person in that Court. The two pieces of stick produced were of different timber - on a stick prepared evidently by a shepherd in idle moments, and the other a branch of sheoak evidently torn hastily from the tree - and in the paper of splinters produced they would find fragments of each stick clearly proving, by such evidence as the Providence of God supplied to aid human judgement in such solemn investigations, that a struggle had taken place.
If it were said by the counsel for the Crown that there was no proof that both sticks were not used by one person he (Mr Stephen) would ask how came the knife of the deceased to be open ? How came his client's thumb to be cut? The sticks must have been used before the stone, as the surgeon informed them that death ensued immediately after the stone was used, therefore it was evident that there had been a fierce struggle, and sticks broken, that a knife had been drawn a wound inflicted, and there was blood on the inside of the hand of the deceased, which was partly closed as if it had grasped the knife. The bruises also were given during life, both on the hands and the body, all proving that there was a fight which resulted in the death of one of the combatants, but there was no proof of malice afore thought. There was proof that a man was slain, but there was no proof of premeditated murder.
The learned gentleman went on to argue that much of the mutilation which invested that case with such horror was to be traced to the dog, which was known to have devoured part of the face of the unfortunate deceased. But no amount of mutilation after death could add to the enormity of the offence of killing. No outrage to the dead body could alter the circumstances of the killing, which was simply homicide, into wilful murder. Barbarous as was the manner in which the throat was cut, it was quite a conceivable act on the part of a man excited by strife and intoxification, and maddened by pain. The learned Advocate had endeavoured to impress on the Jury the probability that the prisoner was actuated by a desire to gain a few pounds which he thought the deceased had in his possession. But there was an amount due to the prisoner, which he xould not hope to receive after commiting a murder, and the balance was so trifling as to render the supposition preposterour that any man would imperil his life in this world and his eternal salvation in the next for such a paltry amount.
He (Mr Stephen) would again refer them to the opinions of the learned Judges who he had read to them - opinions which were the acknowledged law of England. Guided by such directions, he believes they could not find the prisoner guilty of murder, while he admitted it would be their duty to convict him of manslaughter. As to the fact that the pocket was torn from the trousers of the deceased, that might be accounted for on the presumption that it was torn by the prisoner to bind up his wounded thumb. Among the many points imported into that case, he would refer to the statement of the native witness, who remarked (she said) that he was restless all the night, yet it appeared she slept in a different room, and other men lay in the room with the prisoner who was restless.
Then they (the Jury) could not but have observed the unwillingness of some of the witnesses to give a fair answer. Another point was extracted most unnecessarily from a policeman, that a conditional pardon was found on the prisoner; that could only have been done with a view to excite a prejudice against him as it being unfortunately the fact (he would not say whether correctly or not), that a great prejudice was entertained by the people of this province against such men; but as it had been referred to, he (Mr Stephen) would call on them to take it as a proof of long continued good conduct on the part of its holder, as under no other conditions could he obtain it. The learned gentleman in a most eloquent peroration grouped his principal points, and with a thrilling appeal to the justice and mercy of the Jury concluded an address which occupied an hour and a half in delivery.
The learned Judge, in summing up, said the line of defence adpted by the learned counsel for the prisoner simplified in some degree the important question for their decision. As the fact of homicide was not denied, the question for them was the intention of the prisoner when hedeprived the deceased of life. Here the learned Judge read the legal definition of the malice which they must find influenced the prisoner before they could convict him of wilful murder. He then commented on various portions of the evidence, directing the attention of the Jury to the demenour of the prisoner and particularly to his ferocious declaration that "he would take d-d good care that those who could say anything should say nothing." The learned Judge admitted any natural inference was drawn by the counsel for the prisoner from the circumstnce of there being fragments of two sorts of sticks found near the body that a struggle had taken place. It was, he would admit very natural that a deadly struggle would be maintained by a person seeking to save his life. But then he (the Learned Judge) certainly understood on of the witnesses to say that blood and hair were on each stick; it so -
Mr Stephen begged his Honor's pardon, there was blood on both sticks, hair on one only.
The learne Judge went on to call the attention of the Jury to the fact that the prisoner had thrown his glass of rum into the deceased's beer. It was indeed said by the witness to have been done good naturedly, but it was for the Jury to consider what his motive could be. then again, his way was to the head-station, whereas, when he left the public-house, he went in a different direction; it would be for them to account, if they could, for his change of mind. Then it appeared the deceased put the change he received at the public-house into his pocket, and not into his pocket-book. That same paocket was afterwards found torn from his trousers; they would consider whether the prisoner observed him place the money there. The the prisoner told the people in the public-house that he had himself cut his thumb; and again he said, "The old fellow (meaning the deceased) had cut his thumb." After a minute recapitulation of every point, the learned Judge concluded with the direction that, if they believed the killing was intentional and without and without justifiable cause, they would find the prisoner guilty of murder.
Mr Stephen - Will not your Honor instruct the Jury that a killing in the heat of blood is manslaughter?
The learned Judge had directed the Jury in the words of Mr Justice Littledale in the King v. Harvey, a0 Barnewall and Cresswell.
Mr Stephen begged to hand his Honor much later authorities.
The learned Judge perused them, regretted he could not modify his direction to the Jury.
The Jury retired at half-past nine o'clock. They returned in ten minutes with a verdict of Wilful Murder.
Mr Stephen moved an arrest of judgement on the grounds of misdirection. He repeated his Honor's words, "That if the killing was intentional, and not justified. It was murder."
The learned Judge said such was his direction.
Mr Stephen - Will your Honor defer sentence until I move the Court on that point.
The learned Judge could not do so.
Mr Stephen then asked to look at the indictment, but after a moment's pause said he would not then move the Court.
The prisoner, on being asked what he had to say why sentence of death should not be passed on him, declared h never intended to kill the man, he was always on friendly terms with him.
Mr Justice Crawford then, in a slow and solomn tone, the effect of which was the more painfully impressive from being imperfectly heard, proceeded to pass sentence on the prisoner in nearly the following terms: James Yates, it has now become my painful duty to pass the sentence which the law proclaims shall be inflicted on all against whom the verdict of wilful murder is returned. I confess I cannot dissent from the justice of the verdict notwithstanding the able and ingenious defence made for you by your counsel. You have been ably defended, and the evidence being patiently heard. It was quite true you have been on terms of friendship with your victim, but that fact only tended to show the desparate depravity of your heart who could send with all his sins upon his head the man before his Maker whom you had beenliving with in terms of friendship. The learned Judge then earnestly besought the prisoner to make good use of the time alloted him in this world and continued - The sentence of the Court is that you be taken from the place where you now stand to the place of confinement, and thence on Tuesday, the 5th day of September, to the place of execution, and there by hanged by the neck until you are dead, after which your body shall be buried in the precincts of the gaol, and may the Lord have mercy on your soul.
The prisoner heard his sentence unmoved, and maintained a considerable firmness of manner, but the workings of his face proclaimed the bitterness of the agony within him.
The Court was adjourned until ten o'clock this morning.
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