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

R. v. Atkin, Chalmers and Milton [1828] NSWSupC 27

murder, manslaughter, duelling

Supreme Court of New South Wales

Forbes C.J., 2 May 1828

Source: Australian, 7 May 1828

Robert Atkin, John Thomas Chalmers, and Henry Milton, were indicted for the murder of Charles Penberthy, in a duel fought on the 2d of April last.[1 ]

The circumstances of this affair being already pretty generally diffused throughout the Colony, we will not go through a detail of the evidence adduced on trial, - that given by the two seamen, John Bardwell and Robert Nash, who were retained as witnesses by the crown, not differing very materially in point of fact from the evidence given before the Coroner's Inquest, which was convened the same day the affair transpired, and published in The Australian of the 4th ult.  Mr. Penberthy, the deceased, had been chief mate of the ship Elizabeth, Captain Cock, which sailed hence about a month ago, bound for the Mauritius, of which ship the two first named person in the indictment were, respectively, the third and second mates, and the third - named (Milton) was the boatswain.  The chief mate and Mr. Atkin, the third mate, having had an altercation when on board the ship, some time of Tuesday evening, the 3d ult. it was agreed that both should meet the following morning on Garden Island, in order to decide their mutual differences, provided with a loaded pistol each.  On Garden Island, off which the Elizabeth lay but a short way, they accordingly met.  Atkin being accompanied by Mr. Chalmers, the second mate; the boatswain (Milton) appearing on the ground with the chief mate (Penberthy) - four of the seamen who rowed them ashore being also within view.  On a given signal Penberthy fired his pistol without taking effect; that of Atkin burnt priming, but did not go off.  The latter re primed, but refused to fire again, until his opponent had re-loaded.  Both again presented, and Atkin's pistol again missed fire - a pin was called for to clear the touch-hole of his pistol.  Penberthy came forward with one, saying to his antagonist, "I have no animosity against you."  "Nor have I against you, "replied the other," only that you struck me."  Here Mr. Chalmers interposed, and endeavoured to bring about a reconciliation - it was ineffectual - the parties again took their ground - presented - Atkin's pistol went off, and Penberthy exclaiming, "By God," or "My God I'm done," immediately fell to the ground.  He was promptly removed on board of the Elizabeth, and shortly after breathed his last, and the surviving parties voluntarily surrendered their persons to the custody of the law.

Dr. Hughes, of the R. N. examined the body, and certified the cause of the deceased's death before the Coroner's Inquest, but having sailed four or five weeks since for the Isle of France, his evidence viva voce, was not rendered available to the crown on trial, to which Counsel for the prisoners took an objection, inasmuch as there was no positive proof produced to the Court, shewing that the deceased had come by his death in consequence of the pistol shot stated to have been discharged by the prisoner Atkin; and also from a want of proof that either of the two other persons, charged as principals in the first degree had loaded, carried, or even touched a pistol; and finally from the indictment being informal, which Counsel contended did not charge as it ought, one as principal in the first, and the two others as principals in the second degree.  To these objections the Crown Officer replied, and the Chief Justice having shewn grounds for over-ruling the objections taken, proceeded to sum up the case to the Jury.

The offence of duelling (his Honor maintained) was as murder in the eye of the law.  From that consideration the Court could not deviate.  There was the law, and they must be guided by it, and not by the practice of the day.  The first point for the consideration of the Jury would be to enquire whether they were conscientiously and satisfactorily convinced that the deceased (Penberthy) came to his death in consequence of a shot wound, as laid in the information, by the prisoner Atkin.  The best evidence that circumstances would admit, had been brought forward.  That of the surgeon who examined the body however, would have been material; but he was not to be found.  A witness who was put in the box by the Crown Officer, stated, that this person had sailed from the Colony.  But his Honor could not see that it mattered much.  For, if the Court believed what the witnesses had sworn, there could be no doubt whatever about determining on this first question.  Should the Jury be of this opinion, they would then go on and find how far the parties had been actuated by malicious feelings.  When arrived upon the ground, his Honor had collected from the witnesses, that they alluded to some quarrel that had taken place previously.  The one said "I have no animosity against you" - "Nor have I," replied the other, "but you gave me the blow."  "Yes," retorted the first, "you gave me the lie."  In consequence of this, it should appear, the parties had met to seek reparation; the one against the other.  The testimony of all the witnesses strictly coincided in the narration they gave of the affair.  It was clear (his Honor continued) that whatever causes of provocation there might be, to bring about a contest like the one under consideration, that one fighting a duel with, and slaying his fellow-being, is guilty of murder.  The next question then for the consideration of the Jury, would be, whether there were any accessaries in the affair, aiding either one or both of the parties (Atkin's or Penberthy); and on this head his Honor was of opinion, that strong evidence had been given to shew that Chalmers had acted as an abettor in the duel; but with regard to the other prisoner (Milton), his Honor thought it only fair to say, that from the evidence it did not appear he had taken any active hand in the business, but stood by as a spectator.  His Honor continued, he had certainly known cases where Judges, in putting a case like the present to the Jury, had left it a matter of discretion with them, to soften their verdict to manslaughter; but then there must be an absence of all unfairness proved to have been exercised by the survivor.  Lords Hale and Hawkins laid duelling to be murder; and these high authorities went so far as to say, that a party would not be justified, but be guilty of murder, who should accidentally meet another, quarrel with him on the spot, and kill his adversary, notwithstanding the destructive weapon had been put into his hand by the aggressor.  His Honor however had told the Jury what was the practice now-a-days; it was a practice which his Honor knew to prevail with very able judges of the present day; but it was a dictum which he could hardly take upon himself to lay down.

The Jury upon this retired; and after a brief consultation returned Atkin's and Chalmer's as guilty, and acquitted Milton.  The Court ordered that the former two should be brought up for judgment at ten o'clock next morning.  Upon the motion of their Counsel however, judgment was deferred till Wednesday (this day), when a mitigation of sentence will be prayed for. - Milton was discharged by proclamation.  Mr. Atkin's and Mr. Chalmers were allowed to retire from the Court-house in a chaise.

 

Forbes C.J. and Dowling J., 7 May 1828

Source: Australian, 9 May 1828

The case of Robert Atkin and George Robert Chalmers coming on next for a final adjudication, the Attorney General prayed the judgment of the Court; upon which the Clerk of the Arraigns proceeded in the ordinary manner to read the record of their conviction; viz. an acquittal on the charge of murder, for which the indictment was laid, and a verdict returned by Jury who tried the case, of guilty of manslaughter.  Being asked if they had anything to offer in arrest or mitigation of judgment, several affidavits and affirmations, tending to shew the principles upon which both had been actuated immediately or distantly throughout the whole of the affair, were submitted to the discretion of the Court.[2 ]  Those affidavits tended to shew that the affair of the duel duel had sprang from a train of provocatiens [sic] on the part of the deceased.  Letters highly complimentary to the characters of both were also put in, addressed respectively to Messrs. Atkin and Chalmers (the latter, however, was not read openly) from Captain Cock, of the Elizabeth, expressive of his warm regard for the propriety of conduct and steadiness in the discharge of their respective duties, uniformly manifested by both whilst on board his ship; at the same time that he regretted the fatal issue of the affair in which they had taken part.

Upon a candid hearing of the foregoing, the Judges remained in consultation for a few minutes, at the conclusion of which the Chief Justice proceeded to pronounce the sentence of the Court.[3 ]  They (Messrs. Atkin and Chalmers) observed his Honor, had been tried for the wilful murder of a person named Charles Penberthy, lately an officer belonging to the ship Elizabeth, which vessel, at the time of the unfortunate affair, now the subject of jurisdiction taking place, lay in the harbour of Port Jackson.  A merciful Jury who tried this case, had, however, by their verdict, mitigated the offence to one of manslaughter; consequently his Honor would not feel himself justified in treating the offence in the way of animadverting upon it, otherwise than as one precisely of manslaughter, for such he would repeat, it had been designated by the Jury.  The offence, however, on being looked at by a calm, dispassionate observer, would strike as being of a very grave character, were the consequences attendant upon it, the only matters to be looked to; for it had been productive of nothing less than depriving a fellow creature of existence.  It was possible that the hand which was the instrument of effecting so fatal a catastrophe, did not reckon upon the consequence which was the sad result of that unfortunate day.  By him (Atkin) when he went over the side of the ship to meet his brother officer, as appeared on trial, it may not have been anticipated; - but his Honor was confident that whatever the sentence about to be passed upon him that day, for the illegal act he had thus committed - illegal both in the sight of God and as regarded the laws of mankind, a sentence which the Court was inclined to be as merciful in meting out as justifiable, he and his fellow prisoner would reflect deeply upon reason never to fail in pondering upon it, and deploring it to the latest moment of their existence - deprived, as one or both had, a fellow creature of his life.  He was now lost to his friends and connections - friends who, perhaps at that moment, were fondly cherishing and cultivating the hope of his speedy return.  Who could paint their probable anguish - what words could tell the torment of their feelings, when the tidings would reach them of the untimely end that had befallen probably a brother - a relation - a beloved friend? -  It would be impossible to calculate upon the consequences.  Perhaps the deceased's was the protecting, the saving hand of aged and infirm parents.  Who could tell the consequences that might accrue to them upon the receipt of intelligence of so direful a character?  It has appeared, continued his Honor, from the affidavits handed in to the Court this day, that a quarrel of some description or other had taken place on board ship, and that it was under a sense of what was called "honour," you, Richard Atkin, were induced to accept of a challenge to go out with the deceased Penberthy.  But let me tell you, it would have been far more honorable in you, recollecting the duties you owe, as a member of society, had you avoided a step of this kind.  To proceed to such extremes as these, to satiate the ebullition of passions arising out of angry feeling, is indeed false honour.  You not only exposed your own life, but placed that of another in jeopardy - the death of your opponent was the consequence.  You permitted yourself to be hurried on this step by an impulse of feeling which the giddy world is apt to say, arises out of injured feeling, and to resent what you conceive an insult; - you satiate that resentment by causing a fellow creature's death.  When you, Atkin, labored under a sense of wrong having been done you, there was a course open to you, by which ample redress might have been obtained.  But this will teach you a lesson on the effects of taking the law into your own hands.  With respect to the other party (Chalmers) his offence, in the opinion of his Honor, was much greater than that of Atkin.  He had no passions to satisfy - no feelings to soothe, to call him to go out upon such an occasion.  He, his Honor considered, might have prevented the duel taking place; his offence, therefore, was much more serious, and were it not that it did appear before the Court, that whilst on the ground he did come to a right sense, and endeavoured to interpose in the work that had commenced, the Court would have felt itself called upon to make a signal judgment in his case, in order to shew that in the eye of the law, seconds were more guilty in the acts of the kind then under judgment, than principals.  They were not swayed by feelings of false passion and false honour.  But as it did appear, that he (Chalmers) did subsequently endeavour to pacify the parties, the Court would not be severe in its judgment.  The greater part of the punishment, continued his Honor, addressing the young men, will be with yourselves. - After receiving the mitigated sentence the Court is now about to pass upon you, it will be for you to reflect upon every matter connecting it, with anguish and with heart-felt sorrow during the remainder of your lives.  The sentence of this Court is, that each of you be kept in his Majesty's gaol at Sydney for the space of three calendar months to be computed from the period of your commitment.

The persons to whom the learned Judge addressed this affecting appeal, at its conclusion bowed, and retired from the bar.

 

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

 

[p. 88]

[Friday 2nd. May]

[Rex v Robert Atkins

Mr. Thos. Chambers

Henry Milton]

[Atkins and Chambers were found guilty, the other prisoner was acquitted.]

Before Forbes C.J.

This was an information against the prisoners charging them all as principals, with the wilful murder of Charles Pemberthy, by shooting him with a pistol loaded with ball and gunpowder.  At the trial before Forbes C.J. this day it appeared in evidence that the prisoners and the deceased had been mariners on board the ship Elizabeth.  The prisoner Atkins, and the deceased having quarelled, and a blow being struck the former challenged the latter to fight a duel.  The parties met on Garden Island and Atkins at the second fire with a loaded pistol killed the deceased.  The other prisoners acted as seconds on the occasion, and assisted in loading the deadly weapons, having accompanied the combatants from the ship to the shore, for the purpose. - It was objected by Dr. Wardell on the part [p. 89] of the prisoners that there was a variance between the information and the evidence.  The information charged that all the prisoners discharged the pistol at and against the deceased, whereas it appeared in evidence that one of the prisoners only discharged the pistol.  The information should have charged Atkins as the principal in the first, and the other prisoners as principals in the second degree.  It might be true that in the eye of the law they would be all punishable as principals, but still the information should have charged the offence according to the fact and not according to the intendment of law.  In fact, but one hand discharged the pistol.  It should have been so alleged and that the other prisoners aided and abetted Atkins.  He cited Hailes P. C. 442. 452.-

Baxter A.G. contra. said that the principals in the second degree might be charged as principals in the first at the option of the pleader.  He cited Callaghan's case.[4 ]

Forbes C.J. overruled the objection, but reserved the point for the consideration of the other [p. 90] Judges.  The case being mentioned to me, I looked into the authorities, and

Dowling J.  I am of opinion, that although in practice it is usual in this sort of cases, to charge the person who gives the mortal blow, as the principal in the first degree, and the second as being present aiding and abetting the felony as accessaries, yet as in the eye of the law they are all principals, the indictment may well charge them as such, at the option of the pleader.  In cases of this kind where all the parties go out in the prosecution of an unlawful purpose, "the mortal stroke, though given by one of the party, is considered in the eye of the law, and of sound reason too, as given by every individual present and abetting.  The person actually giving the stroke is no more than the hand or instrument by which the others strike." [Foster 357][5 ]  Upon this principle, it is laid down in Hailes P.C. [1 Hale 437. 463.  2 Id. 344. 345] that, "where the indictment chargeth, that A. gave the mortal [p. 91] stroke and that B. and C. were present aiding and abetting if it cometh out in evidence that B. was the person who gave the stroke and that A. and C. were present aiding and abetting, they may be all found guilty of murder or manslaughter at common law, as circumstances may vary the case.  The identity of the person supposed to have given the stroke is but a circumstance, and in this case a very immaterial one; the stroke of one is in consideration of Law the stroke of all.

Notes

[1 ] See also Sydney Gazette, 5 May 1828 for commentary and another version of the report of the trial; and see its issue of 9 May 1828.

[2 ] See Sydney Gazette, 9 May 1828.

[3 ] Forbes had also commented on duelling when he was Chief Justice of Newfoundland.  He told Governor Hamilton in a letter dated 27 October 1821 that "Your Excellency knows that in duels between Gentlemen, it is not usual to inflict the severe penalties of the Law, provided the parties have used no unfairness, and have met on equal terms": Provincial Archives of Newfoundland, GN 2/1/32 1821-1822, p. 214.

[4 ] A marginal note here states "Atkins and Chambers were found guilty, the other prisoner was acquitted."

[5 ] This and the next references are marginal notes in the manuscript.

Published by the Division of Law, Macquarie University