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

R. v. Guyse (1828) Sel Cas (Dowling) 307; [1828] NSWSupC 29

autrefois acquit, indictments, error in, manslaughter, boxing match, sentencing discretion

Supreme Court of New South Wales

Trial, 7 May 1828

Source: Australian, 9 May 1828

TRIALS.

William Guyse was put upon his trial on an indictment, charging him with committing manslaughter, in slaying one William Gibson Whitfield (or Wakefield, as the name was also described in the indictment) on the 12th of April last.[1 ]  The indictment having been read by the Clerk of the Arraigns, the prisoner's Counsel requested that it might be read again distinctly and audibly.  When the Clerk came to the reading over of the name of the person described as deceased, Counsel requested the man to be spelled, which was accordingly done.  The name ran as follows  "William Gibson Wakefield."  In another part of the indictment the name was written "William Gibson Whitfield."  Upon this Counsel for the prisoner submitted to the Court that it was clear, where a variation in the name, as in the present indictment, happen not to beidem sonans, the error must prove fatal to the indictment.

After a few minutes pause, the Court, addressing Mr. Garling, who officiated in the room of the Attorney or Solicitor General, in the conducting of the prosecution, observed, that upon the indictment the prisoner would have to be discharged.

Mr. Garling assented to the necessity of doing so, from the incorrectness discovered in the indictment, but submitted the propriety of the prisoner's further detention, till such time as he should take, and act upon the opinion of the Attorney General in the case.

The Jury were then called over, and in the ordinary way asked if the prisoner were guilty or not guilty.  A verdict to the latter effect was returned: upon which Counsel moved that the accused be allowed to enter into fresh bail to appear when called upon, and moreover to be furnished with a copy of the indictment under which he had been already tried.

To these applications the Court saw no objection.  In the first place the prisoner having been already out on bail up to the period of his appearing in Court, there could be no harm in receiving the renewed application, and in the next place the prisoner's Counsel was entitled to a copy of the indictment for which he applied.

The prisoner, upon entering into fresh bail, retired from the Court.  His Counsel intimated that his object in applying for a copy of the indictment, was to give notice of plea in bar of a second indictment being preferred in the same case, should the Attorney General be disposed to present such a one.

 

Source: Australian, 9th May 1828.

A plea of antrefois acquit was put in by the prisoner's Counsel, but the Court over-ruling this objection, ordered the trial to be proceeded by with.  The prisoner was found guilty, but in consequence of the strong recommendations in his favor by several respectable persons, as being at all times a very peaceably disposed man, the Jury recommended him to be merciful consideration of the Court.  The Judge promised that this recommendation should be attended to,  Remanded in custody for judgement.

 

Forbes C.J. and Dowling J., 8 May 1828

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

[pp 113-114]

[Where an indictment for manslaughter, the prisoner was charged with killing the deceased

who in the introductory and concluding part of the indictment charged by a wrong surname

as Whitfield for Wakefield and the mistake was discovered after the jury were charged but before the merits of the case were gone into, and an acquittal recorded, Held that this acquittal

was no bar to a  second indictment charging the name of the deceased corrected for the prisoner was never in jeopardy upon the first indictment.]

[p. 113]

 

Thursday 8 May 1828

Present Forbes C.J. & Dowling J.

The King v William Guise

The prisoner was indicted for feloniously killing and slaying a person named Edward GibbonWhitfield at Sydney on the 12th April, by striking him divers mortal wounds in a pugilistic contest.  The indictment charged him in the outset with feloniously killing and slaying one William Gilbert Wakefield and after setting out the manner of the death charged that "so the said William Guise feloniously killed and slayed the said William Whitfield and concluding [p. 114] with the usual averment by the Attorney General that the prisoner had feloniously killed and slayed the said W.G. Wakefield.  So that in the commencement and conclusion the deed was described by the wrong surname of Wakefield and in the middle, with the word "said", before it he was called by his right name of Whitfield.  To this indictment the prisoner pleaded the general issue of not guilty.  After the Jury were charged with the indictment but before any witness was sworn the mistake in the name of the deceased was discovered; whereupon Forbes C.J. directed the prisoner to be acquitted, but ordered the prisoner to be detained in order to answer a second indictment for the same felony.  A second indictment having been prepared, with the right names of the deceased [p. 115] the prisoner was again arraigned this morning upon that indictment, and thereupon put in a plea of auterfois acquit.[2 ] with a prout palet per recordum.  The Attorney General replied new trial record.

Moore in support of the plea urged that the acquittal of the prisoner on the former indictment was a bar to the second indictment but

Forbes CJ and Dowling J held that as the prisoner had never been in jeopardy upon the former indictment, (upon which indeed no judgement could have been pronounced it was no bar to this indictment, and therefore ordered that the prisoner should plead over

The prisoner then pleaded not guilty and was tried.[3 ]

 

Forbes C.J., 9 May 1828

Source: Australian, 14 May 1828

William Guyse, against whom the Jury had returned a verdict of manslaughter, was next called up for judgment.[4 ]

He had been found guilty, (the learned Chief Justice observed), of manslaughter, in killing a person named William Gibson Whitfield, on the 12th of April last.  The Jury had, in its clemency, recommended him (the prisoner), to mercy  a recommendation which would have its proper influence in mitigating somewhat the extent of punishment which the Court would otherwise have felt itself bound to award.  That the prisoner was father of a family had been urged on the present trial  consideration of that, his Honor thought, should have prompted the prisoner, not heedlessly to expose his own life, nor to seek that of another.  By his agency a fellow-being had become deprived of existence.  No one, the prisoner had stated, could regret the unfortunate affair more than himself, and sufficient reason he had to regret it.  However, on a review of the case, his Honor felt disposed to allow some latitude in favor [sic] of the prisoner.  It appeared in evidence that the prisoner was the challenged party - that he went out to fight the deceased with a view of displaying a skill in the disgraceful practice to which he had resorted, rather than from a malicious disposition towards his adversary, and that the contest was prolonged by the obstinacy of the deceased, in refusing to give it up, thought frequently intreated [sic] to do so.  But the law, his Honor desired to impress upon the prisoner, would not, under any circumstances, afford its sanction to such proceedings.  It was no excuse in law, that men become engaged in a transaction having fatal consequences, merely to make a trial of superior skill, merely for sport  what was it they were to sport with?  with their own lives, and with the lives of others, on both of which the law had set its value, and would not sanction the wanton deprivation of either.  The mildest construction the Court had been careful to put upon the offence.  The contest was, it appeared to his Honor, for money, which was to become the prize of the winner; that of itself the learned Judge thought contemptible, and as reprehensible as any other part of the affair.  The sentence of the Court (in conclusion observed his Honor), upon you William Guyse, is that you pay a fine of £50 to the King, being the amount of what it appeared you staked on the cause of this unhappy contest, and that you be imprisoned till such fine be paid.  The prisoner upon this retired from the bar.

Notes

[1 ] The victim was a publican, killed in a "pugilistic contest": Australian, 7 May 1828.  See alsoSydney Gazette, 9 May 1828, and commentary, 25 June 1828.

For another case in which the prisoner was acquitted because of a misnomer of the victim, seeR. v. Byrne, reported in Sydney Gazette, 3 August 1833.

[2 ] Autrefois acquit: formerly acquitted.  A defence that the accused has formerly been acquitted of the same charge on the same facts.

[3 ] He was found guilty.  The following is the full account by the Australian (9 May 1828) of this day's proceedings: "William Guyse was again brought up and indicted for manslaughter in slaying William Gibson Whitfield, on the 12th of April last.

"A plea of autrefois acquit was put in by the prisoner's Counsel, but the Court over-ruling this objection, ordered the trial to be proceeded with.  The prisoner was found guilty, but in consequence of the strong recommendations in his favor by several respectable persons, as being at all times a very peaceably disposed man, the Jury recommended him to the merciful consideration of the Court.  The Judge promised that this recommendation should be attended to.

"Remanded in custody for judgment."

For another case in which a prisoner was convicted of manslaughter, see R. v. Cullen, reported in the Australian, 6 September 1833; Cullen was sentenced to be worked in irons on the public roads for two years.  See also Sydney Herald, 5 and 9 September 1833.

[4 ] See also Sydney Gazette, 14 May 1828.

When Chief Justice of Newfoundland in 1822, Forbes had been faced with a similar case.  John Hauton had been found guilty of manslaughter for killing John Welsh in a fist fight, which Forbes told the governor was "conducted in the fairest manner, and upon terms of perfect equality".  He went on: "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, and this case only appears to me to differ in the mode of Combat and the situation of the parties."  Some punishment appeared to be necessary, Forbes thought, and so he affixed a fine of £10 for the unlawfulness of the fighting and not for the fatal consequence which ensued, which if felt to be the subject of punishment at all should be of the most exemplary kind.  Hauton was initially sentenced to a fine of £10 plus three months imprisonment.  Forbes recommended remission of the imprisonment, which Governor Hamilton accepted.  See Provincial Archives of Newfoundland, Letter Books of the Colonial Secretary's Office, GN 2/1/32 1821-1822, pp 213-215, and see pp 226-227 for the governor's response.

Published by the Division of Law, Macquarie University