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Colonial Cases

R. v. Johnstone, 1840

[manslaughter]

R. v. Johnstone

Supreme Court, Bombay
8 December 1840
Source: The Bombay Times, 12 December 1840

 

[R. v. JOHNSTONE.]

Bombay-Local: Question by another Juryman Cross examined by Mr. Cochrane.

GAZETTE, December 9.

   The Supreme Court was very fully attended yesterday to hear the trial of Mr. Johnstone, a Pilot belonging to the Harbour of Bombay, for manslaughter.  We have given a report of the trial at length.  Sir Henry Roper was on the Bench, and the Prisoner's Counsel, Mr. Cochrane, prayed that an entirely European Jury might be empannelled, which was acceded to by the learned judge.  When they had been sworn in according to custom, Mr. LeMessurier, the Advocate General appeared as Prosecutor for the Crown and Messrs. Cochrane and Howard were Counsel for the Prisoner.

   George Walker Johnstone, a Pilot, was indicted for manslaughter of one Shaik Abdoola, late Tindal of the Pilot Boat No. 6; to which charge the prisoner pleaded not guilty. Mr. LeMessurier, the Advocate General, opened the case for the prosecution, to the following effect:-

   Gentlemen of the Jury, - The Prisoner at the Bar, stands indicted under the name of George Walker Johnstone for manslaughter of Shaik Abdoola, late Tindal of the Pilot Boat, No. 6, belonging to this Harbour. 

   The Prisoner is appears was employed on the 31st October last to Pilot a Ship, named the "Amazon," out of the Harbour of Bombay; after having done so he returned in his Boat to the Harbour, and went on Board the Herculean, a Ship then lying at anchor off the Apollo Bunder; at nine o'clock he left this Vessel in his Boat accompanied by two Europeans, the Captain of the Vessel and a Mr. Cox.   On reaching the Bunder steps, he desired the deceased to take his box on Shore, which Shaik Abdoola refused to do, assigning as a reason that during the day, the men had not broken their fasts, it being a religious day with the Mahommedans, but that after they had taken their meal, the box should be sent to Mr. Johnstone's house; upon this Mr. Johnstone got annoyed, and requested that his order should be obeyed immediately; high words ensued, and Mr. Johnstone struck the Tindal; upon this he remonstrated, threatening to report his conduct to Mr. Roberts; this it appears further aggravated Mr. Johnstone, who then with his Umbrella either thrust or struck  the Tindal, and the wound being inflicted on the left eye and touching the brain, he died.

   From the evidence which I shall produce, Gentlemen, I hope to convince you that this act was wilfully committed.  On the Prisoner being wounded he was conveyed to a Godown, and remained there during the night, a Surgeon was called in, who sent him in a Palankeen to the general Hospital; here he lingered for six days, at the end of which period he died, in consequence, as I shall prove to you, from a post mortem examination of the wound inflicted by Mr. Johnstone.

   Sir H. Roper. Can you produce evidence whether it was a thrust opr a blow, because of the former, the crime would amount to murder?

   The Advocate General. - I know my Lord, I think I can produce evidence that it was az thrust.

   Mahomed Salee Rogay, was then called.  I am a Lascar belonging tyo Pilot Boat, No. 6.  On the 31st October last about eleven o'clock, I recollect embarking with the Tindal and ten other men, making twelve in all, (not including Mr. Johnstone,) to Pilot a Vessel called the "Amazon" out of the Harbour; at half past 9 the same evening, we returned to the Dock yard having been previously on Board the "Herculean," where we picked up two European Gentlemen.  When we came to the stairs Mr. Johnstone requested one of the Lascars to take a box to his House, the Tindal said, "'tis now half past 9, let the Lascars take their food first, and then the box shall be taken."  Upon the Tindal saying this, Mr. Johnstone began to beat him with his fist.  I saw him strike him  over the head and breast, and while he was beating him one of the Lascars took the box and left the boat.  Mr. Johnstone still continued beating him, upon which the Tindal said, I have not committed any fault, why beat me?  The Tindal was sitting at the rudder at the time.  The Tindal again said, you are beating me without any fault, I shall report it to Mr. Roberts.  Mt. Johnstone still continued beating him, and took up an Umbrella from the [deck] of the Boat and struck the Tindal with it.  He Mr. JOHNSTONE, afterwards thrust it at him, the Tindal was sitting down at the time; this is the Umbrella (points to one in Court).  I saw the thrust made at the eye of the deceased, when it was made he fell down.  We then sent Balloo, a Lascar, to call Mr. Johnstone, and tell him that Shail Abdoola's left eye had fallen out, and that he was dying.  Balloo came back saying that Mr. Johnstone would not come, and had threatened him.

   We then carried Ahaik Abdoola to Mr. Roberts' House; it was then ten o'clock at night.  On reaching the house, Mr. Roberts said "the night is far advanced take him away, I will see him tomorrow;" we then took him to our Godown, and kept him there till next morning.  Mr. Roberts wrote a chit to the Doctor, who came and ordered the Tindal to be taken to the General Hospital.

   He was taken there by some boatmen of No. 4 boat.  The sixth day after this he died.  I saw him taken from the goodown in a Palankeen.

   Crioss Examined by Mr. Cochrane. - Balloo went after Mr. Johnstone, he would not come and see what he had done.  Mr. Johnstone abused me, the other Europeans that were with him could plainly hear what Balloo said. I myself saw the eye fall out of the socket.  Mr. Johnstone also saw it, and the two Europeans.  The Tindal said nothing else but what has been related, the beating first began with the fists.  Shaik Abdoola was much beaten before Mr. Johnstone struck him, or thrust at him with the Umbrella, there had been no disputes, no words, nor any disturbance in the boat before this.  I was about two fathoms from the Tindal at the time this occurred, the boat has an awning to it.  I pull one of the last oars; the moon had set at the time, it was rather light.  Mr. Johnstone's house is distant from the Bunder steps about 400 to 500 yards.  It is close to the Accountant general's Office.  It was during the beating of the fists that the box was taken to Mr. Johnstone's house; the Europeans were sober, there had been no violent conduct during the day, nor  any quattel with the Tindal.  Mr. Johnstone only threatened Balloo, when he went to tell him what had taken place, he did not strike him.  I have never said it was a back handed blow, it was a thrust.  Mr. Johnstone thrust at Shaik Abdoola 3 or 4 times, but I did not count the number.  I did not see the tindal lay hold of the umbrella, or attempt to do so.  I do not know Mr. Cox except that he was one of the Europeans in the boat, the Witness here pointed out Mr. Cox.

   Cross examined by the Advicate general. - It was last month I went to the Police Office, on the 22nd November, 1840.

   Questioned by Sir H. Roper. - Did you see the magistrate, Mr. Le Geyt, attest your deposition at the police office.

   Answer, I did, I saw him sign it, after it had been read to me.

   Question. - Was the awning of the boat furled or not at the time of this occurrence.

   Answer. - When we left the herculean the awning  was open, not furled.  It is always so.

   Janarden Diwady.  I am employed in No. 6 Bunder Boat.  I went on the 31sdt October last with Mr. Johnstone, the Pilot, and the Tindal Shaik Abdoola with 10 men, to pilot o vessel named the "Amazon" out of the harbour; after we performed this duty, we returned;  on our return we went alongside a vessel called the Herculean. It was about 8 o'clock, the sun had set at the time; at 9 o'clock, Mr. Johnstone and two other gentlemen got into the boat and we rowed to the Dock yard Bunder; when we arrived there, Mr. Johnstone said "Tindal take the box to my house."  The Tindal replied, "the men have had no Meals to day," upon which Mr. Johnstone struck him several times with his fists over the breast and head.  Mahomed Ally Rogay said, "as you are beating the Tindal we will take the box, before we go to supper."  He still continued to beat the Tindal, who kept asking him "why he did so, as he had committed no fault, and that he would report him, Mr. Johnstone, to Mr. Roberts."

   Mr. Johnstone, then struck him with the Umbrella, the Tindal was sitting at the rudder at the time, Mr. Johnstone was in front of him, the blow was struck back handed, it was partly a thrust.  On Mr. Johnstone and the 2 other Europeans leaving the boat, I observed that the Tindal's eye was out.  Baloo, a Lascar went after Mt. Johnstone to acquaint him with this, he returned by himself.  We then took Shaik Abdoola to Mr. Robert's House; when Mr. Roberts saw him, he said,' I will see tomorrow'; he was taken to a Godown and left there for the remainder of the night. - In the morning Mr. Roberts gave us a note to the Doctor, who ordered him to be sent to the General Hospital, he was taken in a Palanquin. - I did not see him again till he was lying dead in a Room in the General Hospital.

   Cross Examined by Mr. Howard. - I as standing in the boat about two fathoms from the awning, I could plainly see all that occurred, when mrt. Johnstone beat the tindal we crowded together and looked on. - The Tindall did not lay hold of the umbrella, nor did he defend himself, he was sitting down at the time and  quietly received the b,low in his face. - he said to Mr. Johnstone, "I have not committed any fault.  Why do you beat me." - I am positive the Tindal gave him no abujse - the reason Mr. Johnstone beat him was his refusing to take the box, - It was on his refusing that Mr. Johnstone commenced beating him with his fiast,  his skin about his face and breast was much bruised - It was not until after Mr. Johnstone left the boat, that I examined or paid any attention to the Tindal. - I distinctly saw the Umbrella strike the eye of Shaik Abdoola. 

   I went and picked him up, and then I saw his eye was out - when the Tindal said he would report all to Mr. Roberts, Mr. Johnstone got very angry, which I believe was the occasion of this accident. - I have been before Mr. Norton and given evidence, what was taken down was all explained to me. - Baloo went to tell Mr. Johnstone, when he had left the boat, that the eye of Shaik Abdoolla was out, and that he was dying, he asked him to come and see - I did not hear Mr. Johnstone's reply to this.  There were two other gentlemen, I did not see whether they accompanied Mr. Johnstone or not. - I stated to the Coroner that I saw the deceased struck once about his Eye, but how many times before that I do not know. As soon as he received the blow from the Umbrella he fell down - it was the last blow that was given, the eye at this time fell out, the ohther blows to the best of my belief were inflicted on the cheek and breast. The Tindal made no attempt to ward off the blows.  I will swear I  know the Umbrella, It was very much like this, (produced).

   Cross Examined by the Advocate General. - Can any person in front of the awning see all over the boat?

  1. Yes.

Question by a Juryman. - Was the Umbrella in Mr. Johnstone's hand when he struck the deceased with his fist?

Answer.  Yes, In his left hand.

Q. Did he strike the blow with his ledft hand?

Answer. No, he took the umbrella in his right hand and thrust it at the deceased.

   Question by another Juryman. -

   Q. Is it not customary for the Tindall always to carry any parcels or clothes from the Pilot Boats, to the Pilot's Houses, when they have returned from piloting a vessel out?

   Answer. Yes, It is always done.

   3rd Evidence.  Shauik Abdoolah Houssain, also called Balloo.

   Examined by the Advocate General. Witness states I belong to No. 6 Pilot Boat., and went out in her on the last day of October.  We returned to the Bunder in the Boat at ½ past nine p.m.  Two Sahibs were in the Boat with Mr. Johnstone (the Prisoner).  On arriving at the Stairs of the Pier the Prisoner said to the tindal, ":Bring up my box to my House."  He replied, Very well sir, after we have taken our meals we will do so." When he got this answer, Prisoner commenced beating the Tindal first with his fist four or five blows on the body.  The Tindal said, "Why are you beating me, if you beat me I will complain to Mr. Roberts, I am not in fault."  The Prisoner then beat him more and struck him two or three blows with an umbrella, and hit him in the eye, when he fell down; when he was striking him with his fist, he had no umbrella in his hand, but when he got up he had it and struck him first on either shoulder and then in the eye.  On which he fell forward on his face, and put his hand to his head, and I observed blood on his hand and saw his eye hanging on one side.  On this I called out to the Prisoner and followed him ashore.  Prisoner said "What's the matter?"  I said, "the Tindal's head is broken, come and see." He replied "what do you want you d----d b----r, and went away.  I went back to the Boat and lifting up the Tindal brought him on shore.  He was placed in the Warehouse that night and was sent away in the morning.  I saw the umbrella with which the blow was struck, it was like that one now in Court.

   Cross-examined by Mr. Cichrane.

   Question.  Was any one else with prisoner when the blows were struck.

   Answer. Yes; two Gentlemen, one of whom is now in Court (witness identified Mr. Cox.)  When all this happened I was sitting on the second thwart.

   Question. Did the tindal lay hold of the umbrella at all.

   Answer. No. (Witness withdraws.)

   Dr. McLennan called into Court and duly sworn.

   I am a Surgeon in the Hon'ble Company's Service.  I was in charge of the Native general Hospital in October andf November.  I remember that a Tindal belonging to a Bunder Boat was brought in about half past Ten one morning.  I think his name was said to be Abdoolah; he was quite insensible, the left eye dislocated, and on the cheek; he remained in a state of insensibility, and died on the morning of the 6th, the cause of his death was injury to the brain proceeding from a wound in the orb.

  There was a post mortem examination.  I found extensive fracture of the bone composing the socket of the eye, and the base of the scull, with suffusion of blood on the surface of the brain, and considerable suppuration, in consequence of the inflammation proceeding  from that cause.  He was bled, leeched and properly treated.  The injury must have been caused by some foreign body inflicted with great external force upon the eye, an umbrella like that upon the table could produce the injury, but considerable force must have been used.

   Cross-Examiued by Mr. Howard.

   Question. Was there any appearance of blows of the fist on the face.

   Answer. No; I don't recollect any.

   By the Court.

   Question. Is the bone of the orb very thin.

   Answer.  Yes; it is.

   Question. - Was the fracture deep in the socket of the eye.

   Answer. Yes, it was rather above the dentre, about an inch and a half deep; the bone was broken in many small  pieces.  The instrument which caused the injury must have been pointed, and have entered at least an inch and a half to have produced the fracture; a long stick or some pointed substance must have been used, if an umbrella, it must have been with the point, and not the handle that it was done. The bone which was fractured forms the roof of the orb and the flow of the ascull on which the brain is disposed.  I trace the course of the foreign body which caused the fracture.  The deceased might have sat up a few minutes after such an injury, but I don't think he could have done so long.

   Quesrion by a Juryman.  How many hours do you think the man had received the injury before he was brought to Hospital.

   Judging from the appearance of the eye several, probably 6 or 7 hours.

   Question. Supposing he had been brought to the hospital soon after the accident had occurred and a Surgeon had attended him within half an hour of the time, would it have been the means of saving his life.

   Answer. I think it would not have been possible to save the man's life under any circumstances, even if he had been brought half an hour after the injury was indicted. - Witness withdraws.

   Mr. mark Cox called into Court and being duly sworn states.  I am Superintendent of the Apollo Cotton Screws.  I know the Prisoner and remember landing from a Boat on the 31st of October last, at 9 o'clock in the evening; in the Boat were captain Grindall, the Prisoner and myself, the Tindall and Boatmen; it was a sort of twiling.  The boat had an awning.  There was scarcely light enough for the trowers to see what took place in the after part of the Boat.  On our arrival at the Pier, the Prisoner ordered one of the Boatmen to bring his Box up to his House.  The Tindal immediately countermanded his order and said, the man should being it in the morning.  The prisoner asked him, "who her was to countermand his orders;" he then took up his Umbrella, but did not strike him a blow in my presence.  The Tindal caught hold of the Umbrella and made use of the word "Sook."  Some other words passed, but I did not know what they were.  I saw no more and heard no more.  The Tindal caught hold of the Umbrella in the middle, this was at the beginning of the affair.

   Captain Grindall and I went out first, and the prisoner followed in less than two minutes.  I did not see the Prisoner strike any blows with his fist.  I must have seen them or heard them if such had taken place.  I have known prisoner about 2 years, not intimately. I have only met him occasionally in the Streets.  I do not know whether captain Grindall is here or not.  "THE HERVULEAN" has sailed.  I ascended the stairs to the top of the Bunder, and the Prisoner came up after me; no native followed us or said any thing to us.  I can take my oath that no man of the Boat's Crew came after the pilot.  I did not hear any coarse expressions from Prisoner, never heard the words D----d B----r when I was on the Bunder.  I only understand a few words of Hindoostanee, the Tindal spoke the Moorman's language.  He said "NUHEEN": when he countermanded the Pilot's order to bring up his Box, and added 'BUREE FUHUE LIYEGA" or some words of that sort.

   Neither myself nor any of us were aware that a man's eye had been knocked out.  I never heard the Tindal say anything about his 'KHANAH" or "RAMAZAN," he might have said so, but I was not attending.  Prisoner did not appear much excited when called a "SOOH" by the Tindal.  He took up the Umbrella to strike him, and the Tindal had hold of it.  The stanchions of the awning were high enough to admit of a blow being given.  From the t5ime of the Prisoner ordering his Box to be taken on shore until he came on the bunderonly about two minutes elapsed.  No one could have spoken to the Prisoner on the Bunderwithout my hearing it.  He joined us clos4 to the top of the steps or a few yards from them. - Witness Withdraws.

   The case for the prosecution here closed.

   Mr. Cochrane rose, and in a very able speech defended the Prisoner to this effect:-

   Gentlemen of the Jury, - The prisoner at the bar stands charged with an offence which may be considered one of the greatest misfortunes that can happen to a man, and it is necessary for his justification, that it should be clearly shown that he did not wilfully cause the death of a fellow creature.  It behoves you to weigh well the character if the Evidence which has been adduced, to observe the discrepancies in the testimony of the witnesses and particularly of the Natives, which certainly oversteps the bounds of justice and limits of truth.  They have spoken to circumstances with minuteness which happened in a flickering and uncertain twilight.  The moon had just gone down, as was proved by every reference to an almanac, yet in this dim light, every circumstance is spoken to with accuracy, and with scarce any variation in their story.  The Prisoner, as will be proved by undoubted testimony, has ever borne the character of a humane man, his conduct has been marked with decorum and decency, but he must forfeit all claim to humanity, and be deserving of the fullest penalty the law could inflict, if the story of these witnesses is to be believed; that when informed of the injury done to a fellow creature, he refused to return to ascertain what had occurred, and broke out into expressions which I moist certainly will not contaminate the ears of the court by repeating.

   Most happily this testimony has been refuted by the evidence of Mr. Cox, while the Native witnesses have contradicted their former depositions on the fact of striking with the fist before the umbrella was used.  Most unfortunately for the Prisoner he is deprived of the testimony of Captain Grindall who would have been a material Witness.  No man can deplore the unfortunate accident which occurred more than the Pir0oaner.  That it was an accident there can be no doubt, an insolent expression was used, a struggle ensued, and in that struggle the slip of a foot or the raising of an arm might have fatally directed the instrument to the eye, and caused the death of the unfortunate Tindal. 

   The Prisoner's case seems to be deserving of the greatest commiseration, but if on the contrary, you, Gentlemen of the Jury, believe the testimony of the Native witnesses, he is deserving of the fullest measure of punishment for this unhumanity, a trait in his disposition which will be disproved by the evidence of the gentlemen on whom I shall now call to speak to the prisoner's general character for good conduct, quietness, and humanity.

   Witness for the Defence. - Captain Ross called into court and duly s worn, states. I am a Master Attendant at Bombay.  I have known the Prisoner about 14 months.  I can scarcely speak as to his character for humanity, but he has behaved himself orderly and quietly since he has been in the Department.

   (Mr. Cichrane here wished to put in a Certificate of character from Captain Low of "The Berenice," who is absent in the Persian Gulf, but it was over-ruled by the Court.)

   Mr. Sutherland called into Court and duly sworn, states.  I am a Purser in the Indian Navy.  I have known the Prisoner since June or July of 1837.  II served with him in the Berenice for about 2 years, he was Gunner.  His conduct for humanity was remarkable good.  He has been promoted to Pilot owing, I believe, entirely to his good conduct.

   Sir Henry Roper proceeded to charge the Jury, and commented at some length on the evidence.

   The Jury retired for about a quarter of an hour and on their return gave a Verdict of "Guilty," but recommended the prisoner to mercy.

   The Judge then passed sentence, and after admonishing the prisoner on the violence of his conduct, he said, "that had it not been for the recommendation of the Jury, he should have been inclined to inflict a much severer punishment.

   The sentence of the Court was, that George Walker Johnstone should be imprisoned for three months in the house of Corr5ection, and that the first and third months should be passed in solitary confinement.

# The above is copied from the Bombay Gazette with some corrections made on the authority of parties concerned.  We regret that we have been unable to give the charge of the learned Judge to the Jury; but the report of it in the Gazette we hear is so inaccurate, that we have not thought fit to transfer it to our columns. -  ED. B. T.

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