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

R v Carter [1833] NSWSupC 104

witnesses, non-attendance of - murder - drunkenness

Supreme Court of New South Wales

Dowling J., 15 November 1833

Source: Sydney Herald, 21 November 1833

William Carter was arraigned at the bar, indicted for having on the 18th day of September last, assaulted, cast, thrown, kicked in various parts of the body, Richard White, which occasioned his death on the 12th day of October following.  A Coroner's inquest had sat on the body, and brought in a verdict of ``wilful murder against the prisoner, William Carter."  The Coroner had been in Court, but was at this moment absent.  When the witnesses were called, namely - Alexander Cuffell, Richard Carter, Thomas Sparrow, and William Davis, only one of them, Alexander Cuffell, was to be found.  His Honor said, let the witnesses be called on their recognizances.  Public justice must not be interrupted in this way.  The Attorney General said that the witnesses had not entered into recognizance.

His Honor. - Let the Coroner come forth - ``He is not here."  Let him be sent for.

Coroner. - There were three witnesses at the inquest who promised to attend.

His Honor. - This will not do; your duty as a Magistrate should teach you better.  I shall fine you, and lay the matter before the Judges.  Richard Carter, father of the accused, is not in attendance; and here is life at stake!  The other witnesses (who had again been called) are not here.  Scandalous!  Public Officers paid, and not to do their duty!  Not a witness here !  I am not finding fault with you Mr. Attorney General; but I shall fine you all if this occur again; and I beg you to take notice of it.  Let the case stand over till to-morrow morning, and let the Officers do their duty, or I will fine them most heavily!

[We are happy to perceive that His Honor is determined to stop the abominable proceeding that have hitherto disgraced our Law Courts.]

 

Dowling J., 16 November 1833

Source: Sydney Herald, 21 November 1833[1 ]

 

Saturday. - Before Judge Dowling, and a Military Commission.

William Carter was indicted for the wilful murder of Richard White, on the evening of the 18th day of September last, at the house of Richard Carter, father of the prisoner.  The said Richard White, died at the Hospital on the 12th day of October following, in consequence of alleged injuries at the hands of the prisoner.

William Cathill, surgeon to the Benevolent Asylum, deposed to the deceased having been brought to the Hospital in a weak state; that he found a scar on the left thigh as if from the kick of a man; that he had some obstruction which eventually caused mortification of the abdomen, of which he died on the 12th day of October last; Dr. Bland had been applied to, and attended the deceased, but at too late a period to prevent disolution; there might have been injury from kicks, but he was not aware of it at that time; he performed an operation on deceased, which for a short time relieved him, and he was able to speak; if proper remedies had been applied earlier, they might probably have saved the life of the deceased; there was a mark on the left thigh as from a blow; no marks on the body of the deceased to induce an idea that he came to his death by violence.

Richard Carter, father of the prisoner, living on Brickfield-hill, deposed that he was sitting on the sofa in his front room on the evening of the 18th day of September last, about nine o'clock, and Richard White was lying by the fire-place, when his son (the prisoner) knocked at the door; and he refused to let him in, and desired White not to admit him; his son, however, got  somehow into the house, and attacked the old man, Richard White, dragged him up by the collar, threw him down, kicked him about the belly, and then jumped on his body with his knees; he was a weak old man, troubled with a rupture in that manner, that he could not but be weak; the old man complained he was hurt, and said ``I will take my bed and go over to Billy Davis', for I am a dead man, I am a murdered man!" he went over to Davis', and took his bed with him; Davis is gone up the country; he let his house, and said I will go up the country; Davis was on the Coroner's inquest; I don't know what White and my son had words.  I did not hear any thing said; White refused him admittance; I will not allow any body to come into my house after nine o'clock at night; White did not open the door I am certain; I cannot say who did; I heard no words, very few words; what I have got to say is this here, ``he told me he would serve him out."

Mr. Rowe for prisoner. - You seem to have great animosity against your son.

Witness. - There was no words took place between them; I swear that; no angry words at all, not in the least; the angry words were in consequence of his coming in; White wished to let him in; he got into the house so far as to kill old White; no use to put cross questions to me; he was the man that broke into the house and killed White.

Mr. Rowe - Did your son blame White for not letting him in before he commenced the assault?

Witness. - He blamed White for reports about £50; that's the occasion of its taking place; before this I blamed my son for robbing me of upwards of £20.

Mr. Rowe. - Was not your son the means of your going to the Police-office, in consequence of your report in this affair?  Did you not charge him with having money in the hands of Bean?

Witness. - No.

Mr. Rowe. - Was he committed?  Was he not discharged?

Witness. - No. - he warn't committed eh!

Mr. Rowe. - Was not your conduct such as to cause you to be turned out of the Police-office on that occasion?

Mr. Rowe. - In what room of the house did this affair take place?

Witness. - What - where the murder was committed?  Why in the front room, after 12 o'clock at night; be hanged if I know what day of the week; my wife was sleeping in the next room; she cried out ``don't kill your father;" I saw White twice after in the Hospital; he was not able to speak.

Thomas Sparrow deposed to having known the deceased 14 years; he got his living by making brooms; he staid at Davis's seven days after he returned from Carter's house; no doctor or nurse attended him; I saw him afterwards at the Hospital; he told me he was very poorly; I do not know that he got injury to kill him; I saw him the day before he died, but was not at his funeral; I think he was about 60 years old; he complained years before of a stoppage of urine.

By a Juror. - Richard Carter, do you know if your son knew that the old man was ruptured?

Richard Carter. - No; but he was the occasion of his death; I don't know how much I drank that night; I was sober; I had not drank more than two glasses; I might perhaps two or three glasses; perhaps six or seven; it might be so; it might be ten; not twelve to my knowledge that night; never mind, I am cautious; I'll swear that I did not drink ten glasses; I think about three or four glasses; I don't recollect the quantity; I cannot - how can I tell how many glasses I take.

Several witnesses were called who gave the prisoner a good character for a mild and unoffending disposition; some of whom stated that Robert Carter, father of the prisoner, had been almost constantly drunk for many years past - that he would frequently take twelve or fourteen glasses of neat rum before breakfast; and that since this accusation of his son, he had often been heard to swear that he would get him hanged, and would rather see him hanged than his greatest enemy.

Mary Carter, step-mother to the prisoner, stated that she had gone to bed about 9 o'clock on the night the affair was stated to have taken place; that she was dead drunk; that Richard Carter, her husband, was about half drunk or so when she went to bed, and he was lying on the sofa, where he generally laid when he was drunk; that she heard no noise, and knew nothing of the matter; we had no spirits in the house; I went to fetch it; we might have had two half-pints or four four half-pints, or it might be eight half-pints, or I don't know how much; I went to bed blind drunk.

The prisoner, on being called on for his defence, said he knew nothing about the matter.

His Honor in summing up, dwelt upon every point of the evidence, and expressed his horror at the feeling exhibited by Richard Carter towards his son in this case.  On his testimony alone rested the alleged guilt of the prisoner, and looking to the character of the accused, the Jury would decide as to his credibility.

The Jury, without retiring, immediately pronounced the prisoner not guilty.[ 2]

 

Notes

[ 1] See also Australian, 18 November 1833, noting that the trial excited considerable interest because the father of the prisoner was the principal witness.  The audience in the court approved of the verdict of not guilty, being "horror struck at the malignant and diabolical feeling which actuated the Father both before and during the trial.  It was altogether an exhibition which, truly, for the honor of human nature, is seldom to be witnessed in a Court so generally depraved as this is."

See also Dowling, Proceedings of the Supreme Court, Vol. 90, State Records of New South Wales, 2/3273, p. 161; Vol. 91, p. 187.

[2 ] The Australian, 30 December 1833, reported that Carter was almost murdered about a month after this.  He had been carrying a large sum of money, and was very drunk, when he was attacked with brickbats.  He was rescued by a neighbour.  Several pieces of brick were taken from his head, but he was not dangerously ill.

Published by the Division of Law, Macquarie University