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

R v Carver [1832] NSWSupC 33

boxing match - manslaughter - provocation

Supreme Court of New South Wales

Forbes C.J., 12 May 1832

Source: Sydney Gazette, 15 May 1832[1 ]

 

Death by Boxing.

William Carver was indicted for feloniously killing and slaying one George Eaton, at Richmond, on the 24th of April last.

It appeared in evidence that the prisoner and the deceased - both natives of the colony - had a quarrel, originating in intoxication, when the deceased challenged the prisoner to fight on the following morning. The prisoner, it seems, thought no more of the matter; but, at the appointed hour, the deceased came to his place of residence, renewed the challenge, and upbraided him with cowardice when the prisoner seemed reluctant to accept it. Many provoking expressions were used by the deceased, and the prisoner was, in consequence, induced to go out and fight. The encounter had lasted upwards of an hour, when the deceased, either in recoiling from the effect of a blow, or retiring to avoid it - the witnesses did not speak positively either way - slipped and fell with great force to the ground. He was then carried home and a surgeon sent for, who bled him, and was leaving the house, when he was requested once more to step into the chamber and look at him; he did so, and, to use the words of the witness, "while I was gazing at him the man died." The surgeon stated that the deceased had died from the rupture of a blood vessel occasioned by some severe contusion or concussion. We must add that the evidence of this witness was most unsatisfactory, he not having taken any means to ascertain the precise cause of the death. He, however, had no doubt, he said, that the deceased died from the effects of fighting.

The prisoner put in a written statement in which he alleged the great provocation he had received, and declared "in the presence of the Almighty," that he never entertained the slightest malice towards the deceased. He also handed in certificates of good character and peaceable disposition, signed by three highly respectable gentlemen, magistrates of the territory.

The learned Judge then summed up to the following effect: The prisoner at the bar, W. Carver, stands charged before you with manslaughter on the body of George Eaton, alleged to have been committed at Richmond on the 24th of April last. Gentlemen, the offence charged against the prisoner is one which in its nature admits of a greater or less degree of penal aggravation. In some cases it is mitigated by circumstances, in other it is so aggravated that the law has attached to it the punishment of transportation for life. These, however, are matters which the legislature has wisely left for the consideration of the Court in awarding the measure of punishment: the only question for you upon the evidence, is, was the prisoner at the bar the cause of the death of the deceased George Eaton. Upon this part of the case it is hardly necessary to lay down the general principles of the law. Wherever one man is the cause of the death of another no excuse can be sat up except that it took place either by accident, in carrying the law into execution, or in defence of person, family, or property. No such defence has been attempted to be set up here; and, therefore, the sole point for your consideration is, did the deceased die form the effect of blows inflicted by the prisoner at the bar? That the deceased challenged the prisoner to fight forms no part of the case which you are to determine. He who offers a challenge is guilty of a breach of the law, and the other is equally guilty who accepts it. And, gentlemen, how much more wise the law is than those mistaken principles of honour which influence men in matters of this description, this case too unhappily illustrates. A fellow creature has lost his life - an aged father has lost his son - a family a protector - I say, therefore, gentlemen, how much wiser is the law which prohibits affrays of this description? Gentlemen, the circumstance therefore, of a challenge having been given is no justification, no excuse in the eye of the law. His Majesty has lost a subject - society has lost a member - a father has lost a son - and the prisoner at the bar is called upon this day to answer for it. All you have to consider then is, whether the evidence has or has not brought home to the prisoner the fact of having inflicted the blows which caused the death of the deceased, should you be of opinion that those blows occasioned death.

His Honor then recapitulated the evidence, and the Jury, after retiring for a short time, found the prisoner guilty, but recommended him to mercy on account of his good character and the very great provocation he had received.

The Chief Justice - Prisoner at the bar, - You have been convicted of an offence which the law ranks among its felonies. I have paid attention, in the course of the trial, to the evidence of character which has been given of you by the witnesses for the prosecution; even the aged father of the deceased has stated that he never knew any harm of you. You have also laid before the Court certificates, from respectable persons, and the jury have recommended you to mercy on two strong grounds - your good character, and the very great provocation  you received. I must own that among all the cases of manslaughter that have hitherto come before this Court, I view this in the most favourable light ; at the same time I am bound to vindicate public justice, and to communicate to the public, through your case, that the affair in which you were engaged was an unlawful affair. It has been stated in your behalf that you were unwilling to fight, but that you were provoked to it. You should have had the courage to resist the vulgar notion which led you to assert an empty name, in breaking the law, by the commission of an act which terminated in a manner that must embitter every future moment of your life. Let this be a warning to all others not to engage in such combats. I repeat that, in your person, I must show the colonists that affairs of this sort are not to be passed over with impunity; and that although the sentence which I am about to pronounce shall, under all the circumstances, be the most mitigated sentence, I must still vindicate the law whenever a case of this description shall be brought under the notice of the Court. The sentence of the Court is, that, for this offence, you, William Carver, be imprisoned in His Majesty's gaol, at Sydney, for three calendar months, to be computed from this day.

Mr. Rowe begged to suggest to the Court that the Sydney gaol was at this moment very full, and, he need hardly say, of the very worst of characters. Under these circumstances, perhaps the Court would order the imprisonment to be in the gaol at Windsor.

The Chief Justice - Let it be, then, in the gaol at Windsor, for three calendar months, from this day.

 

Notes

[1 ] See also Australian, 18 May 1832; Sydney Herald, 14 May 1832.  See also R. v. Jacques and others, 1832; and R. v. Eggleton, Sydney Herald, 8 November 1832; Sydney Gazette, 10 November 1832.

Published by the Division of Law, Macquarie University