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

R v Lockhard [1833] NSWSupC 1

murder - self defence - Bushranging Act - bushrangers

Supreme Court of New South Wales

Forbes C.J., 1 February 1833

Source: Sydney Herald, 4 February 1833[1 ]

James Lockhard was indicted for the wilful murder of Murdoch Campbell, Esq. by shooting him with a gun loaded with powder and a leaden bullet, on the left side of the head, near the left eye, at Upper Minto, on the 15th January.

Registrar. - How say you, are you guilty or not guilty?

Lockhard. - Unless the money is returned to me that was taken away, I won't say a b--y word.

Court. - Let not guilty be recorded.

The Attorney-General opened the case.

John Butcher, examined by Mr. Kerr - I hold a ticket of leave, and was in the service of Mr. Campbell, Harrington Park; I remember 15th January; I was cleaning wheat and loading a dray at sun-down; we heard a noise in a hollow; we looked round, and saw some men running across the field; we thought we heard the cry of ``stop thief;" Mr. C. sent his servant to fetch his blunderbuss, and when it had been delivered to him, he ran down towards the man that was a-head; Mr. C. told him to stop, to see who, and what he was, and what he wanted on his land; Mr. C. lowered his piece from his should to his hand, and the man turned round, fired, and shot Mr. C. dead; I was about four rod away; I was near enough to swear to and identify him; I saw Mr. C. fall; he never stirred after; he was wounded in the head, just above the left eye; the blood flowed freely, and he was quite dead; after Mr. C. was shot, I went up to the man, and he pulled out two pistols, and told me to keep off, or he would serve me the same; the man kept going up the field; another man fired two shots at him, but he got away among the brush and rocks towards Bringelly; two days after I saw the man at Liverpool; and knew him immediately; when he shot Mr. C. he had on a black jacket; at Liverpool he had no jacket when I first saw him, but he put it on in the Court; it appeared to me like a coat with the tail cut off; I saw that when he was running away; (looking at the prisoner) I swear that is the man who shot Mr. Campbell.

Chief Justice. - James Lockhard have you any questions to ask this witness?

Lockhard. - I have none.

By the Court. - I knew the man at Liverpool by his features and general appearance, as well as his clothes; I had very little doubt when I came to look at him.

Thomas Eccles, examined by the Attorney-General - I am an assigned servant to Mr. Mowatt; he lives at Narralan; a road separates it from Mr. Campbell's farm; I was lying in front of my hut on the 15th January in the evening, when I saw a man coming in the direction from Campbell Town; he had a long gun on his shoulder, and I saw one pistol; I suspected he was a bushranger for whom constables were in search; I followed him up; he turned round and looked behind two or three times; I followed him on to the farm of Mr. Mowatt, and reported to the overseer that I suspected a man, going down the road, was a bushranger; the overseer, I, and the blacksmith followed him; the overseer was armed, and asked who he was, and he said a constable; the overseer told him to show his freedom; he took the piece from his shoulder and cocked it, saying, if he did not keep off he would shoot him; he then made off towards Mr. Campbell's high ground; we followed: he got over Mr. C.'s fence, and presenting his piece told us not to follow; we then made an alarm, and shortly after one of Mr. C.'s men came down, and made towards the man within a rod, and then turned back; I shortly after saw Mr. C. make towards the man; some discourse passed, but I did not hear what; Mr. C. approached within a few rod, when the man put his long gun to his shoulder and fired; I was distant about sixty yards; I did not see Mr. Campbell move after the shot; it killed him; while we were after the man, he dropped a bundle on Mr. C.'s ground; I picked it up; it contained two small loaves of bread, the skirts of a coat, and some sugar; the skirts were dark blue or black; I gave it up at Mr. C.'s house to a man who was a stranger to me; after Mr. C. was shot, the man crossed into a bush paddock; we followed, but lost sight of him; from the opportunities I had I am able to identify the man who shot Mr. Campbell; that is the man at the bar who shot Mr. Campbell; I did not examine the body of Mr. C. after he was shot.

The prisoner had no questions to ask this witness.

George Gray, examined by Mr. Moore - I am assigned to Robert Smith, at Bringelly; I have known the prisoner at the bar about a twelve month; on the 16th January I saw him in George Hambridge's paddock, who was his master; I was at work in the garden, when prisoner called, and said, ``George, I want you;" he had two pistols in his hands, and said ``don't be frightened George, you can do me a kindness;" I said, what is it Jemmy; he said, ``I'm short of ammunition, and will give you ten shillings if you will give me a little;" I told him it was not in my power; he said it was, that he had seen my master go out in the morning with a mounted police man, and he would got to the house and have it right or wrong; I said, ``Jemmy, you had better throw those things away," meaning the pistols, ``and go back to your master;" he said ``that won't do; I shot a man last night, and only one pistol in primed out of two; I said, its easy to take a little out of one and put it in the other; he said ``how's that, I've been trying but can't;" I then caught the pistols out of his hands, and said I will shew you; he replied, ``mind you do'nt shake the priming out of the big pistol;" I then told him he was my prisoner, and must go along to my master's house; he said he never would, and seeing him on the move, I told him if he did not, I would shoot him; he opened his shirt, and said ``shoot away;" he then squared up with his fists, and finding he would not come, I cooed; a boy came down with a tomahawk; I then said, ``Jemmy, will you go up;" he replied, ``No," when I took the tomakawk and hit him with the back part; he fell on the ground, and I fell on him and pinioned his hands, and sent the boy home for a pair of handcuffs; I handcuffed him and made him walk to my master's house; when I got him there I searched him, and took away 13s., a pen-knife, some shot, and an old book; I then put him to another part of the room, and chained him until the Liverpool constables took him away; after I had him in custody, he told me where the gun was, and I found it in his master's paddock, lying by a dead apple tree, and the ramrod in it; it was not hid; I took it to my master's place; the prisoner was dressed in a black coat, with the skirts torn off, a straw hat, and white cord trowsers; (a jacket produced) that is the one he had on.

Cross-examined by prisoner - You told me you shot a man; I never said I would go to my master's house and get you half a dozen rounds of ammunition; if I had said so, I should not have taken you my prisoner.

Edwin Park, Esq., examined by Mr. Kerr - I know the prisoner at the bar; the first time I saw him was on the road to Bringelly, about the 14th of last month, the day before the murder of Mr. Campbell; he had a gun or musket, and two pistols in his belt, a large and small one; he robbed me of £1 19s 6d., and my coat; (coat without skirts produced) that is part of my coat; I swear to it as such; I was in conversation with prisoner about ten minutes; he was distant from me about three or four yards, with his musket pointed to me; I am sure he is the man.

Cross-examined by prisoner - I swear that to be my coat; I know it.

Dr. Wm. Robert Kenney, examined by the Attorney-General - I reside near Campbell Town; I was on the spot shortly after Mr. Campbell was shot; about half an hour; he was quite dead; a large gun shot wound had been inflicted in the head, over the left eye, that was the cause of death; it was a wound of great depth; I think there must have been more than one shot, or the musket was of large calibre; the wound had penetrated the brain, and would cause instant death.

This closed the case on the part of the prosecution.

Prisoner had nothing to say in his defence, nor had any witnesses to call.

The Chief Justice then put the case to the Jury, in doing so, he remarked, that before he proceeded to read the evidence to them, he would clear the case from one point that might have arisen, if the prisoner had been defended by Counsel.  By an Act passed in the 11th year of his late Majesty George IV, for the suppression of robberies and bushranging, and the harbouring of robbers and bushrangers, any person was authorised to apprehend any one with arms in their hands, if there were grounds to suppose him to be a runaway felon; therefore Mr. Campbell had a lawful right to apprehend a man crossing his fields with arms in his hands, it was to his mind quite clear, supposing the facts detailed in the evidence to be true, that he was in the discharge of a legitimate duty; had the point been raised, he should have decided at once that it was not a case in which anything like a justifying principle of self defence could arise, the case was one of evidence and identity.  The learned Judge then recapitulated the evidence, and left the case in the hands of the Jury, who, without retiring from their box, pronounced the prisoner guilty.  The Attorney-General then prayed the judgment of the Court, and the prisoner having been called up, the Chief Justice addressed him in the following words: - James Lockhard, you have this day, after a fair and impartial trial, been convicted of murdering Mr. Murdoch Campbell; the case was too clear for dispute.  You had no defence, because you could have no defence; you had no witnesses, because you could have not witnesses.  It was not possible to entertain a doubt of your guilt.  A gentleman of this Colony has lost his life from the position in which you placed yourself, and no point of law that could have been raised, would in the slightest degree have justified the act you have committed; it was your duty to have surrendered when called upon so to do by Mr. Campbell.  You appear to have connected yourself with those bands of lawless men who go armed about the country, reckless of life, knowing that whenever taken, their lives will be forfeited.  Here is a gentleman taken off from his friends and family without the slightest cause, and you are now called upon the pay the small penalty with you life.  The learned Judge then passed the awful sentence upon him, and ordered him for execution this morning, and his body to be dissected and anatomized.  The prisoner heard his sentence with apparent indifference.[2 ]

 

Notes

[1 ] See also Sydney Gazette, 1 February 1833.

[2 ] The prisoner was executed on 5 February 1833, apparently unrepentant: Sydney Gazette, 5 February 1833.

In this, as in many other murder cases, the trial was held on a Friday and the prisoner condemned to die on the following Monday.  This was consistent with the provisions of a 1752 statute (25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder).  By s. 1 of that Act, all persons convicted of murder were to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday.  By holding the trials on a Friday, judges gave the condemned prisoners an extra day to prepare themselves for death.  See R. v. Butler, July 1826.

Under the same Act, the judge was empowered to order that the body of the murderer be hanged in chains.  If he did not order that,  then the Act required that the body was to be anatomised, that is, dissected by surgeons, before burial.  The most influential contemporary justification for capital punishment was that of William Paley, The Principles of Moral and Political Philosophy, 1785, reprinted, Garland Publishing, New York, 1978, Book 6, chap. 9.  He argued that the purpose of criminal punishment was deterrence, not retribution.  As Linebaugh shows, the legislature's aim in providing for anatomising was to add to the deterrent effect of capital punishment.  In England, this led to riots against the surgeons: Peter Linebaugh, ``The Tyburn Riot against the Surgeons", in Hay et al. (eds), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, Penguin, London, 1977.

Published by the Division of Law, Macquarie University