The Sydney Morning Herald (NSW : 1842 - 1954)


(From the Free Press.)

The business of this Court commenced on Monday morning last before his Honor Mr. Justice Therry, with the heaviest calendar, perhaps, since Bathurst became an Assize town. This circumstance drew forth a few remarks from the learned Judge, who in- formed the jury that it-would be necessary to work both early and late, and that during the session lunch time would be dispensed with. His Honor reached Mrs. Whitton's Commercial Inn, Bathurst, on Sunday morning about 10 o'clock, and attended mass at Stephen's Church.

Messrs. J. B Suttor and R. Machattie were sworn in Magistrates of the Territory.



G. B. Barton was indicted, for that he, on the 11th day of January, at Winburndale, did kill and murder one William Rogers. Plea -- not guilty. He was defended by Mr. Holroyd; attorney,  Mr. Serjeant.

The Attorney General, in opening the case, said that although the Coroner's jury had returned a verdict of manslaughter against the prisoner in this case, he felt bound to put him upon his trial for willful murder; for on looking over the depositions he experienced some difficulty at arriving at the merits of the case, and if a prisoner was indicted for willful murder, and the jury were of opinion that the indictment was not supported by the evidence, they still had the power of returning a verdict of manslaughter.

This he said was one of those disgraceful cases now so prevalent, arising out of drunkenness. The prisoner was a respectable man, having a large establishment and several servants about him; and it appeared that on the day in question he had been treating all hands, and that they were all drunk together. There was no doubt that the prisoner had shot the deceased William Rogers ; the only doubts were as to the attendant circumstances, and as the witnesses were all tipsy at the time of the occurrence it was difficult to re- solve those doubts. He should however place the case before the jury and leave it in their hands. If such an affair had occurred among the blacks in the interior, at New Zealand, or in any of the Cannibal Islands of Polynesia, it would have been esteemed one of great atrocity, but it had taken place in the neighbourhood of a civized town called Bathurst, and such cases, must be dealt with by the strong arm of the law. Intemperance was making alarming progress in the colony, and the people were becoming; so familiar with it that but little disgrace attached to the evil. He hoped that the number of cases for trial arising from intemperance would be sufficient to open the eyes of the public, and lead them to point the finger of scorn at those who were led astray, and that the lesson taught in that court would be that in all cases of crime the law makes no excuse for drunkenness. He then called John Waller, District Constable of Kelso, who deposed that he received some information on the night of the 17th January, which caused him to proceed to the prisoner's residence at Wimburndale, as speedily as possible. He reached the house about half-past 11 o'clock p.m. went first into the kitchen, where he saw William Rodgers, commonly called Brandy Hot, who was wounded in the bottom part of the belly, and was bleeding profusely. He afterwards went into the prisoners bedroom where he found the prisoner on the bed with a woman whom he (the prisoner) called Mrs. Molloy. He took hold of prisoner's arm, who rose up on the bed and said, " who are you ?". Witness said his name was Waller, and he was a constable. Prisoner then remarked, "I'll tell you all about it." He said he went to bed about 8 o'clook with the mistress, and about half an hour afterwords hearing a foot-step in the bedroom he called out "is that you Brandy Hot,' and on receiving a reply in the affirmative, he said "go out of my room you old scoundrel ;" spoke to him once or twice before he left the room. He then heard deceased's voice in the passage ; heard him say, "now I have got the axe I'll knock the old beggar's head off," or words to that effect. Upon this he (prisoner) jumped out of the bed and took up the gun, and the moment he saw him inside the door he shot him. Witness asked what the gun was loaded with, and he replied "shot," and that he had shot him with the left hand barrel. Witness found a double-barreled gun in the room, and upon examination the left hand barrel appeared to have been recently discharged. He saw also an axe in the passage partially covered with chains and rubbish, which had to be removed before the axe could be taken up. Witness stopped there all night -- sent two messengers to Bathurst for medical assistance, and the next morning put Rogers on a dray and brought him to the Bathurst Hospital. On the morning of the 19th of January, witness saw deceased, when he said, "Ah my boy, I am fast going, I am not long for this world." Prisoner appeared to have been drinking very hard, but was able to distinguish right from wrong. There were seven or eight people in the room, but none of them quite sober -- Rogers also smelt very strong of liquor. He recollected the prisoner saying that spirits had been stolen out of the house and also a watch. He searched for both but found neither. At first he was stupid from liquor, but some two and a half hours afterwards, becoming more collected, he repeated the statement he originally made. He did not see an axe in the possession of deceased.

George Thompson deposed that he was a horse- driver in the prisoner's service and knew the deceased, who was a reaper in prisoner's employ. The prisoner had been drinking during the fortnight prior to his shooting deceased. He heard the report of the gun and shortly afterwards Brandy Hot said, oh my God! George, give me a drink of water; Barton has shot me. The prisoner and deceased had previously pulled each other about in his presence. Catherine Byrnes was in the same room in a state of liquor.

Catherine Byrnes desposed that she had been married twenty months, and lived with Mr. Barton, with whom she was sleeping on the night deceased was shot. She was not very sober at the time of the occurrence, having partaken of rum and water rather plentifully during the day. In the course of the night three or four of the men who were drunk rushed into the prisoner's room, and behaved indecorously, one of them seizing her by the foot, which caused her to give the alarm. The gun was in the room at the time she heard the shot fired, by which deceased was wounded,

Henry Smith deposed that he was a reaper in Mr. Barton's service at the time deceased was shot. The latter was on familiar terms, and had been drinking with the prisoner, who was intoxicated in the early part of the day, but was sober towards evening. He heard the gun discharged, and saw the men carry deceased into the kitchen, who was wounded in the lower part of the belly. (This witness was sentimentally drunk and blubbered in a most amusing manner whilst giving his evidence.)

Dr. Busby deposed that he was Coroner of the district, and requested Dr. Machattie to attend deceased whilst lying in the hospital, who called upon him frequently. He died on the 19th rather more suddenly than expected, and owing to this circumstance he did not take his dying declaration -- did not communicate to the prisoner that he was in a dying state. Dr. Machattie's evidence went to show that deceased despaired of recovery from the very first.

Edward Watson Rogers deposed that he was the son of' the deceased. He saw his father on the night he was shot. On the 15th, he appeared conscious of his approaching end, and said to me -- "my boy I am done," and desired him to send for a clergyman. About two hours before his death he said he would not be many minutes more in this world. Deceased made the following statement to him : "Barton called me into his room to give me some grog, and when I went inside he refused to let me have any. Upon my saying I would have some, I perceived the woman Catherine Byrnes reaching something to the deceased, and the next moment I was shot." His father and the prisoner had been on intimate terms for four years, and on the 19th, he recollected the former saying that he was as much to blame as Barton; and that he could not make out how it was that Barton shot him.

Mr. Holroyd in addressing the jury informed them that they would have to decide whether the gun went off accidentally or otherwise -- if accidentally, their duty would be to acquit the prisoner. Under any circumstances, however, there was nothing in the evidence to show malice, and the charge of murder therefore fell to the ground. It appeared that the prisoner complained of a watch and some liquor having been stolen, and it might be that under the impression that thieves were in the house he had fired without knowing at whom. The deceased as appeared from his son's evidence had confessed that he was quite as much to blame as the prisoner, and although not very definite, this expression ought to have its due weight in the minds of the jury.

His Honor in summing up, said there were many circumstances in the case which tended to negative the supposition of malice. He therefore thought they might proceed as upon a case of manslaughter. The statement made by the deceased deserved the consideration of the jury because it was supposed to have been made under the solemnity of death, and that statement would go far to negative the supposition of malice on the part of the prisoner. This was one of the most disgraceful affairs that could possibly occur. Here the master and the servants were all drunk together, but although when drunk some men become completely mad yet they are very properly held responsible for their action under such circumstances, because by their own acts they bring the madness upon themselves. Drunkenness, therefore, could not be esteemed an excuse for crime. His Honor recalled the jury after they had retired to point out to them the fact that the prisoner had not appeared to interest himself at all in the fate of the deceased after the affair happened, nor even to make any inquiries about him.

The jury found a verdict of manslaughter against the prisoner. He was remanded for sentence.



FORGERY.  George Bowman pleaded guilty to the charge of forgery and was sentenced to hard labour on the roads or other public works of the colony for the period of three years.




Mary Hide was indicted for stealing, on the 8th of February, £11, the property of John Birt on, at Bathurst.

John Barton stated that some time in the early part of the month of February he was in Bathurst, and met the prisoner about eleven o'clock p.m. She asked him to give her a ball ; he excused .himself on the ground that the public houses were all shut, when she said if he would go to her house she would give him a glass of wine. He went with her, and shortly after he had taken the wine he felt very drowsy and said he must lay down. She took the handkerchief from his neck, and he told her it contained two £5 and one £1 notes, when she-remarked it would be all right in the morning. However, when he awoke the money was gone, and not being able to obtain  any satisfaction from the prisoner he gave her in charge.

Mr. Holroyd briefly addressed the jury for the defence. Verdict not guilty. The prisoner was then discharged.




Tuesday, February 28th.


Colin Henry was indicted for stealing £13 and some silver from Matthew Pries alias Matthew Maysfield, at Carcoar, in February 1853, and pleaded not guilty. He was defended by Messrs. Holroyd and Stephen.

From the evidence it appeared that Price called at a public house kept by the prisoner at Carcoar, and partook of some supper, with which he drank the greater portion of a bottle of porter, the remainder being drunk by a person who goes by the name of ."brickey." Shortly afterwards he became so far stupefied that he fell down underneath the verandah, and although perfectly sensible  was incapable of assisting himself. -Whilst in this condition the prisoner came to him and rifled his pockets of the amount named. In cross-examination by Mr. Holroyd, witness afforded considerable amusement by his quaint English. He had been transported for breach of trust, he re- marked, which now meant embezzlement. He borrowed his alias Marsfield to leave England with; had been a policeman, overseer of a chain-gang. The robbery was committed in February, hut he did not have the prisoner apprehended until October following, .-Samuel North, Esq.. P.M. of Carcoar, proved that the deposition stating that the prosecutor partook of tea, not porter, was written by himself. Tea might have meant the meal and not the particular commodity.

William Montagu Rothery, Esq., J.P., decreed that Price informed him of the robbery at the end of March upon his return from Sydney, and that he subsequently spoke to the prisoner about Price's money, who denied any knowledge of either the robbery or the money. But was so drunk that he could not make anything of him. He saw him frequently afterwards, but never sober. The prisoner had his license renewed after his first interview with him.

MrHolroyd addressed the jury at some length, dwelling upon the discrepancy between Price’s evi-dence at Carcoar and in court, and the length of time which had elapsed between the alleged robbery and the prisoner's apprehension. He also referred to the very improbable story at his perfect self-possession whilst under a hocussing process, and contended strongly for the innocence of the prisoner.

His Honor in summing up, condemned the lax discipline of the Carcoir bench which allowed a case of such a serious nature to sleep for eight months.

The jury retired for a short period and found a verdict of not guilty. The prisoner was therefore discharged.





Samuel Welham was indicted the third time, for the willful murder of George Melville, at Mudgee, on the 29thSeptember,1842. He pleaded not guilty, and was defended by Mr. Holroyd.

The Attorney-General having opened the case, called Margaret Soyer who deposed that on the evening in question she accompanied the prisoner and deceased from Mudgee on a dray, the latter of whom was driving. When they had arrived at a brick ground about a mile from Mudgee, prisoner desired deceased to leave the dray; a dispute arose in the course of which the prisoner who resided at the place went into his tent and fetched out a gun, which he held in a threatening attitude, at the same time ordering prisoner off the ground. A scuffle ensued in which prisoner, deceased, and a man named Johnson who was very drunk were concerned, and it was during the scuffle that the piece went off and deceased was shot. Deceased struck the prisoner after the gun was fired and fell. This witness was cross examined at some length by Mr. Holroyd, with the object of testing the respectability of her character, but nothing transpired to shake the credibility of her testimony.

John Biggs deposed, that he lived 300 to 400 yards from the prisoners, and upon receipt of information that deceased was shot, went to the place. He found deceased lying on the ground, and Johnson lying at some distance covered with blood. Deceased was wounded at the bottom of the belly, and a portion of his bowels protruded from the wound. The prisoner was in his tent, and upon his (witness) speaking of the shooting to him, he said, "By God, I didn't do it, Johnson shot him,"  Cross-examined by the Attorney General. He had not stated the last particular to the coroner because, as he said, "he would not be let say all he knew." He sent for Dr. Macdonald, who came and dressed and sewed up deceased's wound. Deceased said in the doctor's presence that the prisoner shot him, but he denied having done so.

Dr, Macdonald visited prisoner's place, where he found deceased suffering from a gun-shot wound at the lower portion of his abdomen. The intestines and a part of his bladder protruded. He ordered deceased, who was lying outside, to be carried into a tent,_and_ dressed his wound, and having done so, asked him how the matter occurred. At first he refused to tell him, but upon acquainting him that his case was a very dangerous one, he stated that " the old man," meaning the prisoner, had shot him. This the prisoner denied in the words, "May God strike me dead if I did. " In the course of these statements deceased remarked that Johnson was too drunk to do anything.

C. C. Patecil deposed, that he apprehended the prisoner and Johnson, and found the double-barreled gun produced outside, one of the barrels of which appeared to have been recently discharged. It turned out in course of cross-examination that although one of the barrels was loaded, the piece had passed between Mudgee and Bathurst; and had frequently been handled in court; and Mr. Patecil was in consequence severely rated for his negligence in this particular by His Honor and the Attorney General.

Mr. Holroyd, in addressing the jury for the defence, contended that as no malice had been shown; neither had any threats or malicious expressions been used. If there was a case at all before them it certainly could not be one of murder, and from the nature of the evidence he had no doubt he should be able to satisfy them that there was not even a case of manslaughter. He adverted to the fact that the prisoner had been in the habit of keeping his gun by the door, and when he saw the bullocks going in the direction of the bricks he would naturally take up the first article that came to hand for the purpose of turning them in another direction ; that article happened to be a gun. While he had the piece in his hand the struggle ensued, and while the three men were struggling together, and to use an expression of the woman's, were " all entangled," the gun was discharged. It appeared to be a doubtful question who fired the gun, and the prisoner crying out at the moment or the accident " Oh, my God, I did not do it, Johnson did it," was presumptive proof that it was discharged in the melée unintentionally. He referred to the contradictory nature of the evidence given by the woman, who in the first instance said, that at the time of the struggle Johnson was lying on the dray, and 'then that they were all struggling together. The jury should be very careful in receiving such contradictory evidence, and if of opinion that the discharge of the gun was the result of accident and not of design, the prisoner would be entitled to a verdict of acquittal at their hands.

His Honor summed up, and adverted to the confused manner in which the evidence of Mrs. Boyer was given, stating that the prisoner was entitled to the benefit of any doubt entertained by the jury.

The jury retired for a short period and returned a verdict of not guilty, the former attaching the following rider to the verdict - that the jury regretted it was not in their power in cases like the present to pronounce such a verdict as would enable the judge to punish persons for taking up unlawful weapons tor purposes of intimidation, and thereby causing loss of life.

The Attorney-General, manifestly nettled at this expression of regret by the jury, vented his displeasure by telling them flatly that they knew nothing of the law, and that the law was perfect.




Martin Killfoil was indicted for that he, on the 17th December, 18Î3, did kill and slay one Hugh Curran, at Mudgee. Plea, not guilty. He was defended by Mr. Holroyd.

Mary Gilmore deposed that, on the 17th December last, as she was passing O'Brien's yard, she saw a man lift a paling, and, with both hands, strike Curran on the head ; saw Curran fall down, but he got up again presently, and led his horse away. The man who struck the blow went around to O'Brien's door, but witness could not swear that prisoner .was the man. Curran and the man who struck the blow were the only persons-in the yard at the time.

Mr. Charles O'Brien, innkeeper, of Mudgee, knew the deceased, who was at witness' house on the 17th December, and drank too much grog. Prisoner was also there, and said the beggar had been taking his stirrups and girths,

Cross-examined by Mr. Holroyd; Had known the prisoner five or six years ; did not believe he was a quarrelsome man, and on the day in question he was none the worse for liquor ; deceased had had three or four glasses, and was rather fresh.

Michael Gowan deposed that he saw prisoner on the 17th December, who told him that he and deceased knocked each other down. He knew the deceased, who died on the following morning.

C. C. Patecil apprehended the prisoner in O'Brien's yard, and saw the deceased, who was covered with blood. The prisoner remarked that Curran struck him first, and that he thereupon returned the blow.

Dr.King deposed that he attended an inquest held ever the deceased on the 19th December, whom he had seen prior to his death, and found him insensible from a wound upon the left side of the head. There was a second wound, but both were superficial. From a postmortem examination subsequently held, he discovered that the skull was fractured and that a considerable quantity of blood was extravásate  upon the brain.

C. C. Patecil recalled the weapon with which the blow was inflicted could not be found.

Catherine Curran deposed that she saw the prisoner in O'Brien's yard, and was informed by him that he was the man who struck her husband.

Mr, Holroyd, in defence, contended that whilst it was a subject of deep regret that the unfortunate man had fallen beneath the hands of the prisoner, it must be admitted that there were strongly extenuating circumstances. The deceased, who was a large powerful man, had first struck the prisoner, who possibly might believe his life in danger, and if so, he was justified in what he had done. Nothing, moreover, had been adduced to show that he had searched far for a weapon, and the probability was that he seized a paling which was close at hand and had struck and killed deceased under the influence of passion.

His Honor having explained the law upon the distinctions between murder and manslaughter, reviewed the principal features of the case, after which the jury found a verdict of guilty without leaving the box. The prisonar was remanded for sentence.




Maurice Dalton was indicted for the willful murder of William Oxley, on the 29th April last, at Mudgee. He pleaded not guilty, and was defended by Mr. Holroyd. Attorney, Mr. Serjean.

James Lucas Brandon deposed that about one o'clock on the morning of the 20th April, he was proceeding homeward, playing a clarinet, when the prisoner walked up to him, and after asking him what he wanted playing that b-----y thing, knocked him down. He applied to constable Oxley for assistance, who advised him to go home.  He did so, and shortly afterwards stones were thrown at his door and upon the house. Again he went for Oxley for assistance, who came out, and no sooner made his appearance than the prisoner accord him in these words, "You are a b-----y trap; I know you by your buckle.” Upon proceeding to the spot he found deceased lying senseless and bleeding, the wound having been inflicted on the side of the head.

Cross-examined by Mr. Holroyd- He frequently saw the deceased upon duty afterwards in Mudgee-never saw -him the worse for liquor, but recollected taking a glass with him on the Thursday 'before his death.

William Freeman saw the prisoner at Mr. Arthur Cox's on the 29th April last, who was making a great noise. Ho ordered him away, and was requested by him not to tear his shirt. In a moment afterwards prisoner seized a big bludgeon, which he threw inside upon the bed in which his wife and children were sleeping- At this time the prisoner had a stone in his hand. Ho saw the deceased, who was capable of walking unsupported.

Dr. Macdonald attended the deceased, who had a wound upon the side of the head, which did not appear to be dangerous.  Besides this he subsequently discovered, when holding a post mortem examination upon the body another and more serious wound at the back part of the head, but from which no external injury appeared. He had no doubt but the blows accelerated, if they did not cause his death. There was a considerable effusion of blood upon the brain. Cross-examined by Mr. Holroyd-He did not know that the deceased drank, but he had the appearance of a free liver. He saw deceased a few days before his death, and heard of his falling over a scraper ; from that period he had a succession of apoplectic fits, which continued until death,

David Picton saw the man, whom he did not know to be the prisoner, near Brandon’s, at whose house he threw two stones. Shortly afterwards he saw Oxley leave his house and heard him speak to this man, whom he named Dalton, and who in reply called him " b---y trap." A moment or two afterwards he saw Dalton strike the deceased with a thick stick, which pulled him to the earth ; blood flowed freely from the wound thus caused. He (witness) might be twenty yards from them at the time Brandon and he stood near each other.

Mr. E. Bailey proved that a charge for a violent assault was preferred against Dalton, who was committed to take his trial at the Quarter Sessions, on the 30th January. Some time after Oxley died and an inquiry was held upon his remains. The depositions were written by him as clerk of the Court at Mudgee.

This evidence closed the case for the Crown. Mr. Holroyd addressed the jury on behalf of the prisoner.

This case, he said, involved a charge -of murder without malice, as from the evidence which had been given it was impossible to conceive that the prisoner could have been actuated by any such feeling. There was nothing before the jury to show that they were even acquainted, and from the nature of the wounds the blows must have been of a trivial character. When the witness Freeman reached deceased he was standing upon his legs, and could not, therefore, have been very seriously wounded. There was moreover a discrepancy in the testimony of Picton and Brandon, which showed plainly that both could not speak truth. The former estimated the distance at which they stood at the time deceased fell at 103 yards, whilst they later fixed it at about 20. Clearly this was no case of murder and he could not for one moment imagine how it was to be reduced even to manslaughter upon such trumpery evidence.

According to Dr. Macdonald's testimony,  the deceased_had a predisposition towards apoplexy, and this predisposition was increased by ardent spirits of which it appeared probable he partook. It would also be fresh in the recollection of the jury that the deceased had fallen against a scraper a few days before his death, and had then most probably received the injury at the back of the head, which caused apoplexy, and hastened his death. To his mind it appeared that an assault was the worst charge that could be fixed upon the prisoner. He then called Constable Ashton, of Mudgee, who knew the deceased, and remembered that on the 29th February, 1853, he had a fit about 7 miles from Mudgee, and was insensible for about three quarters of an hour, but had never seen him in one before nor since. Witness attri- buted  his illness on that occasion to the fact that they had been travelling all day with a flick of sheep, and deceased had not broken his fast. About 15 days after the assault, deceased was on duty and went with a letter for the coroner to Cloudy Bay, and did not return until the following day.

Mr. George Taylor, Innkeeper, of Mudgee, remembered deceased’s going to Cloudy Bay in the early part of May in last year ; it was after the assault; had never seen him in a fit until he returned from Cloudy Bay. On the morning after his return, heard some one screaming, and on going out saw deceased on the ground in a fit ; knew that he had been on duty occa- sionally after the 29th of April, Cross-examined by the Attorney-General: The wound in the head was not quite healed at "the time he went to Cloudy Bay, and witness thought he was not able to do as much duty as before the assault. He did not appear to suffer from any other cause than the wound in the head.

Mr. Alexander Watt was called to give the prisoner a character. He said he had known him for ten or twelve years, and on one occasion had employed him during the harvest ; had also heard other persons speak of him, and believed that when sober, he was quiet and well behaved, but when in liquor very violent. Beyond this he did not know very much about him.

The Attorney-General replied and made same stringent remarks about gentlemen appearing to give prisoners a good character of whom they knew but little, the natural consequence of which was that the cases of those who really deserved a good character were materially injured.  In reference to the case before the court he cited some cases to show that it was a matter of no importance whether the deceased was aged and infirm, or young and strong, but if his death was accelerated by the conduct of the prisoner the charge against him was sustained. He also directed the attention of the jury to the expression used by the prisoner at the time of the assault, calling the deceased a " b-----y trap," for kicking him after he had knocked him down, and said if deceased had drunk too much or taken too much exercise after the assault it would not make an atom of difference ; for Dr. McDonald had declared that death had resulted from the effects of the blows upon the head.

His Honor, in summing up, laid before the jury very clearly and distinctly the  difference between murder and manslaughter, and said that in cases of homicide the law presumed the existence of malice; and it was for the defendant to show that he had just cause for his conduct in the affair. After reiterating the evidence he left the case in the hands of the jury.

The jury found a verdict of manslaughter against the prisoner, who was remanded for sentence.

Outcome of trial, SMH, Wednesday 15 March 1854; Maurice Dalton was found guilty of manslaughter and sentenced to 5 years hard labour, the first two years in chains.

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