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

R v Burke and Donohu [1826] NSWSupC 14

murder - Bringelly - South Creek - capital punishment, dissection

Supreme Court of New South Wales

Stephen A.C.J.,[1 ] 3 March 1826

Source: Australian, 9 March 1826

 

James Burke was indicted for the wilful murder of John Cogan, at Bringelly; on the 7th of January last; and Cornelius Donahu as an accessary after the fact, in harbouring and concealing the said Burke.

Richard Burke deposed that he was at the house of one McGill on the evening of the murder, both the prisoners were there; they were sitting at McGill's door with Mrs. Cogan, the wife of the deceased.  Shortly after Michael McGlynn came up and asked Mrs. Cogan to go to a house about a mile distant, which she refused.  Burke took her by the arm and led her a short distance from the house.  Cogan just then rushed from a haystack and knocked the prisoner Burke down, he got up and went back to the house; Donahu then coming up was also knocked down by the deceased.  This witness did not see more of Burke or Cogan till he heard McGill cry out, the man is murdered.  McGill was observed with an axe in his hand, and Burke was heard saying to him, "it is you who have killed him."  While this dialogue was passing, McGill was standing over the body, and Burke a rood and a half distant.  McGill threw down the axe when he thought himself observed.  Cogan about a fortnight previously had charged McGill with stealing a keg of rum and a garment from his wife.  McGill's testimony was a contradiction to the former, it went to prove that as he was standing by the deceased, Burke came up and struck deceased under the ear with an axe, which felled him at his feet.  McGill in attempting to take the axe from him, narrowly escaped himself.  Burke again struck the deceased on the shin bone.  Donahu then came up and made a blow at McGill with a hoe,, which struck into the ground.  Donahu was heard to say, in English, to Burke, "don't strike poor Cogan," and immediatel [sic] after, directly the reverse in Irish.

Mr. Justice Stephen summed up; from the conflicting nature of the evidence, it was competent for the Jury, if they thought circumstances warranted such a step, to give the prisoner Burke benefit of clergy, by finding him guilty of manslaughter only.  With regard to the prisoner Donahu, the evidence adduced did not implicate him as an accessary before the fact.  He was therefore ordered to be detained, to stand trial as accessary after the deed.

Against the other prisoner the Jury returned a verdict of Guilty.

Sent[e]nce of death was passed in the usual form, and carried into execution on Monday.  Some particulars may be seen in another column. ...

 

EXECUTIONS.

On Monday[2 ]morning the execution of those unfortunate beings, Corbett and Burke, at an early hour attracted a rather unusually large concourse of people; they occupied the heights overlooking the gaol wall, from whence every preparation connected with the gloomy, but necessary, act of depriving a fellow being of existence, may be distinctly observed.  Corbett had been in the employment of Mr. Hayes, at the South Creek; he had assisted the bushrangers in the attack on the house, and subsequent spoliation of that gentleman's property.[3 ]He confessed his guilt, as well as the justice of that sentence which condemned him to close his mortal career with a painful, an ignominious death;---that pardoning mercy which justice could not but deny him here, he trusted he might look for in an hereafter; and, with a true heart, forgave all who might have been concerned in his condemnation.  Burke, when about to ascend the scaffold, confessed to the sub-sheriff his guilt of the offence alleged against him---it was murder, the appalling crime of murder.  A man named Cogan had met his death from some human hand; his skull was fractured.  Suspicion fell on the present unfortunate culprit, he managed to evade the pursuit of justice for a short time; but was detected, brought to trial on Friday last, and doomed to expiate his crime on the gallows.  The unfortunate man declared his crime to have been totally unpremeditated; that intoxication paved the way for its committal, and when the quarrel with the deceased did take place, he had no intention to commit murder.  Some suspicions had been unjustly attached to the deceased's wife, relative to the present transaction, which he felt anxious to contradict.

At half past nine o'clock it was intimated that all was ready; when upon a given signal, the drop fell, and death soon took possession of his victims.

After hanging the usual time, the bodies were lowered into their coffins; that of Burke's was conveyed to the Military Hospital for dissection.[4 ]

 

Notes

[1 ] Forbes C.J. was on sick leave from 23 February 1826 until 29 May 1826; John Stephen was Acting Chief Justice in this period: see Australian, 23 February and 3 June 1826.

[2 ]6 March 1826. In this case, as in many other murder cases, the trial was held on a Friday and the prisoner condemned to die on the following Monday.  This was consistent with the provisions of a 1752 statute (25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder).  By s. 1 of that Act, all persons convicted of murder were to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday.  By holding the trials on a Friday, the judges gave the condemned prisoners an extra day to prepare themselves for death.  See also Sydney Gazette, 8 March 1826, on these executions.

[3 ] See also R. v. Patient, Morrison, Roberts and MacCullum, March 1826; R. v. Hogarty, How, Bailey and Laragy, March 1826.  Other cases concerning the South Creek robbery were reported in the Australian, 2 and 9 March 1826; and see Sydney Gazette, 4 and 8 March 1826, and 26 April 1826.

[4 ]Under (1752) 25 Geo. II c. 37, s. 5 (An Act for Better Preventing the Horrid Crime of Murder), the judge was empowered to order that the body of the murderer was to be hanged in chains.  If he did not order that,  then the Act required that the body was to be anatomised, that is, dissected by surgeons, before burial.  The most influential contemporary justification for capital punishment was that of William Paley, The Principles of Moral and Political Philosophy, 1785, reprinted, Garland Publishing, New York, 1978, Book 6, chap. 9.  He argued that the purpose of criminal punishment was deterrence, not retribution.  As Linebaugh shows, the legislature's aim in providing for anatomising was to add to the deterrent effect of capital punishment.  In England, this led to riots against the surgeons: Peter Linebaugh, ``The Tyburn Riot against the Surgeons", in Hay et al. (eds), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, Penguin, London, 1977.

 

 

Published by the Division of Law, Macquarie University