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

R v Jones [1830] NSWSupC 78

murder, power to deliver verdict of manslaughter

Supreme Court of New South Wales

Dowling J., 26 November 1830

Source: Sydney Gazette, 27 November 1830[1 ]

(Before Mr. Justice Dowling.)

Thomas Jones was indicted for the wilful murder of Llewellen Hopkins, at Sydney, on the 29th October last.  The information charged the prisoner with having, on the day above stated, inflicted sundry mortal wounds, fractures, and contusions, on the head of the deceased, with a paling, from the effects of which he died on the following day.

Mr. W. H. Moore conducted the prosecution; Mr. Therry was of counsel for the prisoner.

It appeared in evidence, that the deceased, who was upwards of 60 years of age, lived with the prisoner, who is a milkman, and, at the time the fatal occurrence took place, resided in Upper Pitt-street, there being no other persons living in the house. - According to the testimony of several witnesses, the prisoner and the deceased always lived upon the most friendly, and even affectionate terms, with each other; and from the whole of the circumstances developed on the trial, there can be no reason to doubt that the prisoner was incited to the commission of the rash act which deprived a fellow-creature of his existence, by the effects of intoxication, possibly rendered more violent from some ill-timed provocation given by the deceased; of which, however, there was no actual proof.

On the evening of Sunday the 29th October, the prisoner was seen in a state of intoxication, and engaged in an altercation with a neighbour, about some trifling milk score.  At this time a paling was observed in his hand.  Shortly after he was noticed lying down in the yard outside his house, and, after a little time, the deceased came out and seemed to be endeavouring to persuade him to go in doors, but not succeeding returned himself into the house, closing the door after him.  Presently the prisoner arose and went in, and after a short time had elapsed a noise was heard about the premises, which attracted some constables to the spot, and the deceased was found standing in the yard, with the blood flowing from a wound in his head; the prisoner being all the time shut up in the house, and behaving in a very riotous manner.  After examining the deceased, it appeared to the constables that the cut then on his head was very slight; and, as he declined making any charge against the prisoner, they went away, first advising the deceased not to go near him, nor to sleep in the house that night; - a caution which, unfortunately, he neglected to take.  About an hour after, the uproar was renewed, and where they found a number of people assembled, and the deceased reclining against he wall, in the yard, bleeding copiously from several fresh wounds on the head, and quite insensible.  The prisoner was among the persons present, and, upon its being asserted by several that he had inflicted the wounds, he asked the deceased if he had beaten him, who, at first distinctly replied ``Yes," and then, as if recollecting himself, ``No."

The unfortunate man was conveyed in a cart to the General Hospital, where he lingered, in a state of total insensibility, till the following morning, when he expired.  Dr. Mitchell proved that the fractures on the skull, and the consequent extravasation of blood caused death.  He also stated, that he believed the wounds to have been inflicted with a blunt weapon, probably that set forth in the information, to which very considerable force must have been supplied.

The jury, after a minute recapitulation of all the evidence, together with such comments as the learned judge deemed it proper to make, found the prisoner guilty of manslaughter.

Mr. Therry here rose and stated that he had to submit to the court a point of law which suggested itself to him in the course of the trial, namely, that the jury had not the power to find a prisoner guilty of manslaughter, on an indictment for murder.  The learned gentleman then proceeded to state that the power formerly exercised by jurors in returning verdicts of manslaughter, in cases where the indictments were for murder, was given them by statute - the 43d, Geo. 3, c. 113.  Now, he contended, as that statute was wholly repealed by Mr. Peel's Acts, and no similar provision in cases like the present being to be found in the existing criminal code, that a verdict of manslaughter could no longer be supported on an indictment for murder.

The learned Judge overruled the objection.  His Honor stated, that juries had the power of returning verdicts of manslaughter on indictments for murder, at common law.  The Act of Parliament referred to by counsel, had reference merely to the punishment of the offence of manslaughter.

His Honor, then, after a most impressive address to the prisoner, sentenced him to be imprisoned for twelve calendar months.

 

Notes

[1 ] See also Australian, 3 December 1830.

Published by the Division of Law, Macquarie University