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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Stack and Hand [1824] NSWSupC 15

murder - petty treason

Supreme Court of New South Wales
Forbes C.J., 26 August 1824
Source: Sydney Gazette, 2 September 1824

 

Petty Treason and Murder. - James Stack and John Hand were indicted for feloniously, wilfully, and traitorously assaulting their master, Michael Minton, in the district of Evan, on the night of the 8th of August last, from the wounds of which he died. The information comprised four counts, severally charging the prisoners with having perpetrated the deed by means of a knife, an axe, a hammer, or a musket.

In opening this terrific case, the Attorney General observed, that the relation in which the prisoners stood with the deceased would have to be proved; but, should the testimony of two witnesses to that fact, as regarded the crime of petty treason, be wanting, then it would be competent for the Jury to judge of the evidence as affecting the prisoners for the crime of murder. The confession of one of the prisoners, the Attorney General informed the Court, would be offered in evidence. By this admission it must appear that the prisoners were present aiding and assisting in the crime; and that, were it urged to have been perpetrated by others, it would be manifest that the premises were too well guarded, by dogs at that season of the night, to allow of a silent or uninterrupted intrusion. That the prisoners were in a condition to execute this fatal mischief, was also to be proved; and that it was totally improbable, as well as impossible, that any one else but them could have effected the deed. It would be shewn that the prisoner Stack had a part of the property in his possession; and, moreover, that the death was occasioned by arms, and other deadly weapons, in the house.

Dr. West, Resident Surgeon at Windsor, deposed, that he was called on to examine the body of Michael Minton, the deceased, at his house in the district of Evan, on the morning of the 10th instant. It was lying on a bed. He ascertained that a pistol ball had penetrated the back, but had not entered far, owing to the circumstance of an interception by the bedding. A musket shot had perforated the fleshy part of the left arm. The throat was cut almost from ear to ear - the jugular vein, and all the larger vessels were divided. Several fractures were observable upon the head. One was just above the left eye, which had the appearance of infliction by a hammer. Three or four other fractures evidently were perpetrated by blows from an axe, or some similar implement. From the nature and complication of these wounds, Dr. West was most decidedly of opinion that the poor old man could not have survived over five minutes. - Mr. Rowe, who appeared for the prisoner Hand, made some enquiry of Dr. West as to the circumstance of his client having been under his medical care in the Windsor Hospital; but as this case appeared totally irrelevant to the case in point, it is not entitled to further consideration.

Thomas Jones was next called. - He lived in the service of the deceased 11 months, and was a fellow-servant with the prisoners at the bar. His master's farm was in the district of Evan, and there are several houses near to, and in a line with that of the deceased, his late master. The Nepean river is half-a-mile distant from the house. Leary's house lies between Minton's and the river. His deceased master came home from Richmond upon the evening of the murder, about sun-set. When he supped, the deceased retired to the inner room to bed: there were only two rooms in the house, with the exception of a passage about 3 feet wide. At the time his master went to bed there were the following persons in the house, viz. Mrs. Minton (the wife); two children; Catherine Spalding (the wife's sister); the two prisoners at the bar; one John Wright, and the witness. In the whole, there were four crown servants [1] on the farm, who had been variously occupied during the day. Between 8 and 9 o'clock when his master was in bed, his mistress despatched him, the witness, to the house of one Mary Peckham, at the distance of half-a-mile with a sheet and shift to be made. These articles were delivered to him by the prisoner Stack through a skilling-window; who told him, that in the event of his master waking, he would report him as being in the barn; and accompanied him a short distance on the road. When he arrived at Mary Peckham's, some conversation took place between her, the witness, and one James Danks. He had not been in the house more than three minutes when the report of a gun was heard. The woman remarked, that that was "Old Minton" firing; which the witness denied, as he had left his master in bed; but the sound coming in that direction, he thought it best to return, not having remained on his errand, in the house, above five minutes. When he left home his fellow-servant, John Wright, was not in the house. When within 6 or 7 rods of a large tree that stands contiguous to the deceased's house, he saw the prisoner James Stack, and a woman whom he supposed to be Mrs. Minton, his mistress, in company, going towards a drain at the foot of the hill, which lies between the dwelling and the river. He swore it was Stack, but could not so clearly identify the person of his mistress, though he was pretty conscious it could be no stranger, as his master was particularly strict against allowing people to go across his farm. For the space of three minutes they were lost sight of; but, on the witness continuing to make for the house, he overheard some inaudible conversation - the parties spoke very low. Suddenly the prisoner Stack came up the side of the hill, and observing the witness, enquired "who was there?" "Jones," was the reply. He then ran up, clasping his hands, and loudly exclaiming, "My God - my God! my master killed!" In answer to some questions put by the astonished witness, the prisoner (Stack) replied, that five men rushed into the house, and killed their master. He said that the mistress and children were safe; and that Mrs. Minton was gone to a neighbour's house to make an alarm. All this time the witness had not seen the other prisoner (John Hand), of whom Stack seemed to know nothing. Accompanied with Stack, the witness proceeded to the house; he wished the former to enter, but excessive agitation apparently prevented him from a compliance in this instance. The witness glanced in at the front room, and conjectured he saw a man stretched out by the right side of the fire-place, who appeared to be on fire. Stack told the witness he should know two of the murderers. There were two good-sized dogs on the farm; he never knew them to bite any one; but they invariably barked at strangers. That evening he did not hear these animals give any alarm, only when the gun fired, and that was but momentary. His master kept a fowling piece or musket, and two pistols in the house. About the premises there were also two axes and a hammer. The axe, which was most commonly in use, could not be found up to the night of the murder, as it was sought after for the purpose of keeping up a fire. He, the witness, saw no strangers, or bush-rangers, about the premises, either prior or subsequent to the dreadful transaction. Several of the neighbours flocked in upon the alarm becoming general. His master was habituated to visit the fields in the evening to ascertain whether the cattle and horses were safe. The prisoner Stack, who was the overseer of the other men, was not very much esteemed till of late by his mistress, Mrs. Minton; but, latterly, her familiarity with this man (Stack) was obvious. At one time she was in the habit of continually expressing a dislike of him to his master, her husband. The two prisoners at the bar were not the most friendly till recently. The witness stated that the prisoner Stack was a faithful overseer, and that he had no personal animosity against him. He was not more than half-an-hour gone to Peckham's, during which short interim the bloody deed had been accomplished. His master was accustomed to discharge a pistol every night. The axe and gun produced to the witness in Court, he verily believed to be the property of the deceased.

John Wright, in the same service with last deponent, deposed, that his master went to bed immediately after supper; he saw him undress, and close the bed-room door. The men, that were in the house, consisted of the two prisoners at the bar, Thomas Jones, and the witness, together with Mrs. Minton, her sister (Catherine Spalding), aud [sic] two children: there were no strangers present. Between 8 and 9 o'clock his mistress gave him a dump, and directed him to go to a neighbour's, about 3-quarters of a mile off, and pay him that piece of silver for some butter which she owed him. The name of the man was Sells. He left the two prisoners, the only men present, in the house - Jones, the former witness, being sent out previously. At the distance of half-a-mile, the report of a gun arrested his attention, as it came from his master's house. He went to the house of Sells, and after some difficulty, occasioned by the opposition of the dogs to his entrance into the premises at that hour of the night, he delivered the coin into the hands of Sells, and returned homewards. On the way he met John Hand, one of the prisoners, who exclaimed that he was "a happy man;" for, since his absence from home, the house had been filled with robbers, who had murdered the master. He enquired if they were still there, to which Hand replied that he thought they were gone. Hand then prevailed on the witness to accompany him to Weyham's, a neighbouring settler, to give the alarm, and obtain assistance in so frightful an exigency. Mr. Weyham immediately despatched 4 government men, with the witness and the prisoner Hand. They leaped over his master's fence; the dogs came barking at them; but the witness quieted the animals, which he observed; to his knowledge had not barked before that evening; though it was usual, upon the approach of strangers, for them to make a great noise. The house was in a cloud of smoke. He, the witness, by means of a fire, soon procured a light. It should have been stated, that upon the witness gaining the scene of blood, he found Jones on the spot before him, afraid to enter. His master was lying within a foot and a half of the fire-place; the shirt, which he wore, was consuming; his night-cap was a short distance from the body; and the blood was running, in a stream, from under the head, into the fire. The vital spark had been driven away, but the body was not yet cold. Some of the bedding was also on fire. The prisoner Hand was one of those who sat up all night with the corpse. Fuel was wanted in the course of the night, and the axe was missing. That which is in Court belonged to his deceased master; as also the gun, pistols, and the hammer. Mr. Minton used to keep the gun at the head of his bed.

William Sells, settler at the Nepean, corroborated the testimony of the last witness, as far as regarded the nocturnal visit, and payment of the dump. This witness added, that the deceased's former wife was killed about 3 years since; and that that was not occasioned by bush-rangers, as attempted to be urged, but was committed by a government servant living on the farm.

John Tucksford, who lived at Mary Peckham's, deposed to the fact of the witness Jones (the servant of the deceased) coming to their house on the night already stated; that he came about a sheet and a shift. While the man was in the house the gun was fired, upon which he bade the people "good night," and proceeded home, only stopping about 5 minutes.

Samuel Leary, settler at the Nepean, deposed, that he heard the deceased exclaim "O Lord!" and afterwards cry out "murder!" four times. This was between 8 and 9 o'clock; after which a gun was discharged, and not till then did he hear any dogs bark. His house is situate between the river and that of the deceased. In half-an-hour after, or thereabouts, he heard Mrs. Minton, with her children, going to a neighbour's house. He despatched a servant off, on horseback, to ascertain the cause of these disturbances.

John Baker, servant to the last witness, deposed, that he also heard the cry of "murder" four times, in the direction of Minton's house. He heard the report of the gun. At the direction of his master he was going to find out the meaning of this report, as well as the cry of "murder;" and having gained a knowledge of the distressing particulars, he returned and acquainted his master.

Thomas Weyham, another settler in the vicinity of the deceased's residence, deposed, that he heard the report of the gun about 9 o'clock. An alarm was presently made, and he despatched four of his men, to render assistance. He also followed, and, upon approaching the house, met the wife of the deceased, who told him that her husband had been murdered. He saw the prisoners at the bar. A conversation ensued between him and the witness, and the prisoner Hand. He said Minton was killed, and that "he was a dreadful man;" that he was always finding fault with him: and that it was not much matter about his being killed.

Thomas Keighan, servant to the last witness, confirmed his master's testimony; adding further, that Hand should say, that five men rushed into the house, but none of whom he would be able to recognize; and that he, Hand, had been placed against a door by the ruffians, who threatened to shoot him, in the event of turning round.

John Ablett, settler of the Nepean, deposed, that his farm is not above a quarter of a mile off that of the deceased; he heard the dogs barking exceedingly; and also heard Mrs. Minton cry "murder!" When he went to poor Minton's house, he found the four servants present. The prisoners at the bar related the same tale to him about the five men as Hand had previously mentioned to Thomas Keighan. The witness was aware that the deceased had been in Sydney on the Thursday previous, and bought a new plough.

John Fleming, servant to the last witness, corroborated the evidence given by his employer.

John Hickman, servant to Thomas Weyham, deposed, that he was one of those that went forward to render assistance, by his master's orders; and that, upon asking the prisoner Hand whether he would be able to identify any of the ruffians, he indifferently replied that he knew nothing about it, and walked off.

Mr. John Purcell, chief constable at Evan, deposed, that about half past 11 at night, upon the evening of the murder, he was directed by the Magistrate to proceed to the house of the deceased, and gain every possible information that might lead to a disclosure of the parties. In a general conversation that ensued during the night, the prisoners at the bar concurred in one tale, viz[.] that five men rushed into the house; that two of them came into the room in which they were sitting, and commanded them to stand with their faces towards the wall; another placed himself at the door with a pair of pistols, while the others went into the bed-room, and demanded Minton's money; he replied it was in the Bank, then "we'll bank you," was the reply; to which no resistance was offered either by the servants, the two prisoners at the bar, or the wife! They further added, that the murderers went off, immediately the fire-arms were discharged. From certain information that he derived next morning, he proceeded to search the premises; and from thence went towards the drain spoken to by the second witness, Jones, who said that he saw Stack, and a woman like his mistress, proceeding in that direction. With very little trouble, one of the bye-standers handed over to Mr. Purcell, the following sanguinary weapons, viz. a gun, a pair of pistols, an axe, a hammer with some human hair appending to the claw, and a white-handled case knife, covered with blood! These articles were produced to the witness, and they were identified to be the same found in the drain. They were all sworn to be the property of the deceased. - While searching the house, one of the knives were reported missing by Mrs. Minton, and the one found in the drain corresponded with those in the house. From the dwelling to the drain the ground went in a declivity towards the river. There was not the least appearance of any property having been stolen by the five bush-rangers, who were said to have committed the shocking deed.

Christopher Flood, a publican in York-street, Sydney, deposed that the deceased was in town on the 5th instant. He sold a quantity of pigs, for which he received, in presence of the witness, £98 in six 50-dollar notes, one 5-dollar ditto, and a Bank check drawn by Mr[.] De Mestre in favour of John Flood for 72 dollars, dated Aug 5[.] One of the 50-dollar notes was cashed in town. The others Minton took home with him, leaving with the witness the numbers, dates, and sums, which Mr. Flood was so careful as to take in his own hand-writing.

Thomas Hobby, Esq. Coroner for the district of Evan, deposed, that he held an Inquest on the body of Michael Minton, the deceased, on Tuesday the 10th instant.

William Cox, Esq. Justice of the Peace, deposed, that he resorted to every expedient to lead to a discovery of this dreadful transaction. The prisoners at the bar related to him a similar tale to that which was afforded to Purcell, the chief constable. They were sent to different gaols. On the 10th inssant [sic] they were brought before the Coroner's Inquest. Mr. Cox stated that he had some conversation, upon this occasion, with the prisoner Stack; in which, at first, he adhered to the old story. But, after some short time, he sent for Mr. Cox, and told him he was most unhappy in his mind, and entreated the Magistrate to direct him (Stack) how to act. Mr. Cox observed, that he could not be admitted as an evidence either at the Inquest, or before the Criminal Sessions, but that, "if he hoped for mercy," he would tell the truth, and that upon his relating the truth he (Mr. Cox) might be induced to speak favourably of him to the Court. This Gentleman was then upon the eve of recounting the nature of this confession made by the prisoner Stack, when he was stopped by the Solicitor for the prisoners (Mr. Rowe) who started two legal objections to such a confession being adopted as evidence. The first was, that terror had been exercised by the Magistrate; and secondly, that the hope of mercy was held out to the prisoner; either, or both of which, were contrary to Law, and therefore fatal to any confession so received. The question, one pregnant with the deepest interest as affecting the case, and also of general import, was ably argued by the Attorney General and the Learned Solicitor. It remained, however, for His Honor the Chief Justice to decide the point; and His Honor was pleased to observe, upon mature deliberation, that "he was of opinion that the confession could not be received; as the conversation that took place between the Magistrate and the prisoner Stack was certainly calculated to convey hope to the mind of the prisoner."

The prosecution here closed. The prisoners entered into no defence, other than by denying all knowledge of, or perpetration in, the crime.

We should fail in doing justice to the lucid and elaborate charge given by His Honor the Chief Justice, were we to attempt following up the observations that emanated from the Bench on this occasion; perhaps it will be sufficient to observe, that, after an absence of about five minutes, the Jury returned with a Verdict - Guilty[.]

His Honor the Chief Justice immediately passed Sentence of Death upon the prisoners; which decreed them to die on Saturday. [2]

 

 

Notes

[1] Convicts, assigned into private service. Though the master of these convicts, Minton himself was a former convict. His two children were born in 1822 and 1823: M. Nichols, The Hawkesbury Pioneer Register, Hawkesbury Family History Group, Windsor, 2nd ed., 1994, 127.

[2] For correspondence between Forbes C.J. and the governor about this case, see Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, p. 11.

Mary Minton, the deceased's widow, was then tried for aiding and abetting the murder: see R. v. Minton, 1824.

Published by the Division of Law, Macquarie University