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

R v Morris [1831] NSWSupC 57

attempted shooting - assault - Sheriff's officer, assault on

Supreme Court of New South Wales

Trial, 31 August 1831

Source: Sydney Gazette, 1 September 1831[1 ]

Daniel Morris was indicted for feloniously and maliciously discharging a pistol at one John Clifford, with intent to do him some grievous bodily harm, at Sydney, on the 19th of July last.  Not Guilty.

The same prisoner was then indicted, on another information, charging him with a common assault.

It appeared in evidence, that verdicts having been recovered in two cases, against the defendant, in the Court of Requests, executions were taken for the amount, and placed in the hands of Fitzpatrick, the bailiff of that Court.  Fitzpatrick deputed one of his assistants to proceed to the defendant's house and make the levy, who, on arriving there, read his warrant to the defendant's wife, she being the only person present, and then went away leaving the prosecutor in possession.  Subsequently the defendant came in, and, after some communication with his wife, demanded the prosecutor's authority for being in the house.  The proecutor informed him, upon which the defendant asked to see the warrant, which the prosecutor refused, but, being unable himself to read, offered, if a third person were called in, to allow that person to read it to the defendant.  An altercation arose, and the defendant laid hold of the prosecutor by the collar, and attempted to turn him out of the house.  A servant to the defendant then came in, and read the warrant to him; but even after that, the defendant went into an inner room, brought out a pistol, which he fired off, but not at the prosecutor, told him if he did not immediately depart he would knock his brains out, and finally forced him out of doors.  The pistol, as appeared by the evidence, was charged with powder only, and was stated to be kept so charged by the defendant, for the purpose of frightening away the neighbours' poultry, which were accustomed to stray into his yard.

Mr. Rowe, of counsel for the prisoner, took some objections in point of law, which were overruled by the Court.

The defence set up by the defendant was, that having been two or three times fined, for prisoners of the crown, absent without leave, being found on his premises, he supposed the prosecutor might be a person of that description; and, as he refused to produce his authority for being there, he turned him out of the house.

The learned Judge summed up the evidence, and told the Jury, first, with respect to the objections raised by the defendant's counsel, that the prosecutor was legally in the house of the defendant by virtue of the process of a Court of competent jurisdiction; and, secondly, that the acts stated to have been done by the defendant, after the warrant had been read to him, amounted, in law, to an assault, if they believed the evidence.

The Jury found the defendant Guilty.

His Honor, in passing sentence, said he did not believe that the defendant, in discharging the pistol, intended to do any injury to the prosecutor, and confirmed as that opinion was by the verdict of the Jury in the last case, he thought it but justice towards the defendant to state it.  But His Honor had also to do justice toward the public; and, as it was of the utmost importance that the process of Courts should not only be executed, but executed peaceably, and the persons to whom they were entrusted protected in the execution of their duty, he could not refrain from passing such a sentence as the circumstances required.  At the same time, the Court would take into consideration the presumption which appeared, that the defendant was not in a state of very great affluence, and would not therefore impose such a fine as might probably entail distress upon his family, or consign him to imprisonment.  The sentence of the Court under all the circumstances, was, that the defendant do pay a fine of £10 to the King.  His Honor, however, wished it to be understood, that the mitigated sentence passed in this case should not be looked upon as proceeding from the want of a just sense of the very great impropriety of acts like these, but from a merciful consideration towards the defendant.

Notes

[1 ] See also Australian, 2 September 1831; Sydney Herald, 5 September 1831.

Published by the Division of Law, Macquarie University