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

R v Smith and Moore [1826] NSWSupC 59

murder - Windsor - capital punishment

Supreme Court of New South Wales

Forbes C.J.,[1 ] 8 September 1826

Source: Australian, 9 September 1826

 

Isaac Smith, was capitally indicted for the wilful murder of  Wm. Green - and Denis Moore, for aiding and abetting.

Captain John Brabyn, J.P. residing in the neighbourhood of Windsor, recollected Sunday, the 20th of August last - about half-past two o'clock in the afternoon of tha[t] day was walking in his verandah, when at some distance of, the prisoner Smith and his (Capt. B's) female servant Judith Connolly were observed conversing together - saw the prisoner use some violence towards the girl, who was then on her way home from Church, and immediately despatched constable Green, (the deceased) to the protection of the girl - shortly afterwards it was reported that Green was murdered - the prisoner Smith was in custody, and had repeatedly confessed his having committed the act - the prisoner's conduct appeared to be that of a savage - he exulted in his dabolical [sic] deed, and expressed sorrow that he had not imbrued his hands in the blood of others.

Thomas Finch, in the employment of Capt. Brabyn, deposed to having heard, at about half-past four o'clock on the day before stated, cries of "murder" - they were distant about one hundred yards, or perhaps more - he hastened in the direction from whence the cry seemed to proceed, and found the prisoner (Smith) employed in encouraging a bull-dog to attack the deceased - witness requested Smith to call the dog off, when the latter threatened to "serve" witness the same way if he dared to interfere - witness left the spot for a few moments - spread an alarm - returned with assistance, and found the deceased stretched on the grass nearly lifeless - he was conveyed to the general Hospita. [sic]  The prisoner with his dog was standing a few yards off[.]  A Windsor constable who took him into custody, deposed to several unfeeling expressions having been subsequently uttered by the prisoner within his victim's hearing, such as upon his hearing a groan from Green, who lay in an adjoining room, - "Ah, you'd be settled before morning, and stiff.'  The constable further deposed, that upon prisoner being brought near to deceased's bed, the latter accused him of being his murderer.  Prisoner not only confessed the crime, but avowed that he had broken a pistol over the deceased's head.  A waistcoat stained with blood was found on the person of the other prisoner (Moore.)  He was the opinion of Mr. Thomas Allen, the examining surgeon, that the severe distinct and fatal wounds on the superior part of the head, had been produced by blows.

Smith in defence affirmed that the constable had first assaulted him, and what he had done was under the impulse of irritated feeling.  He exculpated the other prisoner from any participation in his crime.

The Judge summed up.

The Jury acquitted Moore, and found Smith guilty.- Sentence of death was then pronounced on the unhappy man Smith, to be carried into execution on Monday next.[2 ] ...

 

EXECUTION.

Isaac Smith, who was found guilty on Friday last, of having murdered a constable, named Green, in the neighbourhood of Windsor, paid the forfeit of his life on the gallows, during the forenoon of Monday.  It did not want many minutes to ten o'clock when the Sheriff entered the gaol, provided with the fatal death warrant.  At this time Smith was in one of the condemned cells, situated on the right of the right side of the prison, in communication with the assiduous Roman Catholic Clergyman, Mr. Therry.  When it was announced to the criminal that the time permitted by the just, but outraged laws of his country for repentance, and making his peace with the Almighty, was drawing fast towards its completion, he advanced for the last time towards the door of his cell, and accompanied by the Rev. Clergyman, who walked on his right - the Sub-Sheriff, several constables, and others, proceeded along the front of the prison, and through a central passage leading directly towards the yard, where stood upreared the gloomy apparatus of death.  An Officer's guard with bayonets fixed, was ranged nearly in front of the gallows, by the side of which lay on the ground a rudely constructed coffin, in such a situation as could scarcely fail of meeting the eye of the criminal on entering.  Nearly all the different felons in confinement, many of them heavily ironed, and many divested of those incumbrances, were as usual grouped together on one side - a number of spectators were crowded together on the height overlooking the rear of the prison.  Smith's step as he proceeded from the cell was firm and regular - his conduct and manner of speaking when at the foot of the gallows and after hearing the Sub-Sheriff read over his death-warrant, betrayed no simptoms of intimidation or discomposure.  He made no secret of having perpetrated the appalling crime for which he was about to atone, and attempted to excuse himself, by stating, that his unfortunate victim was the aggressor - that being aware his resisting a constable would probably subject him to transportation - he preferred drawing on himself the law's severest rigour, by sating his demoniac vengeance in blood and murder, to the former mode of punishment.  His words were uttered audibly and distinctly, but without leaving to the hearers any particular reason to infer that the wretched culprit was impressed with remorse or sorrow for the consequences of his act.  He knelt down, and remained for some time in prayer with the Clergyman.  He appeared to lose none of his firmness on ascending to the fatal platform, from whence the Clergyman descended, after communicating for some time longer, and recommending the culprit to withdraw his thoughts from a fragile existence, and address them towards his Redeemer.  For a few moments the wretched criminal was left to himself - he attempted to clasp both hands together in a posture of supplication - on a prescribed signal by the Sub-Sheriff the drop fell - the wretched man's convulsive struggles continued perceptible for several minutes after - his death appeared to be a painful one.  Smith's person was low and robust - his age about one or two-and-thirty.  His manner during trial, and on conviction was extremely hardened - it is not always that men of Smith's description wait the approach of an ignominous death with so much apparent indifference, as was evinced on the foregoing occasion.

 

Notes

[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826. In the meantime, Forbes C.J. sat alone.  This trial was also reported by the Sydney Gazette on 9 September 1826.

[2 ]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, judges gave the condemned prisoners an extra day to prepare themselves for death.  See R. v. Butler, July 1826.  The Act restricted the opportunity for clemency in murder cases: see Australian, 5 August 1826, pp 2-3.

On 10 September 1826, Forbes C.J. told Governor Darling that there were no circumstances in the case to favour Crown mercy.  Darling replied on the same day, with his decision that the prisoner was to hang: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 75-76.

Published by the Division of Law, Macquarie University