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

R v Stock [1833] NSWSupC 7

attempted murder - soldiers, relations with civil population

Supreme Court of New South Wales

Forbes C.J., 20 February 1833

Source: Sydney Gazette, 23 February 1833[1 ]

Stephen Stock was indicted for feloniously and maliciously shooting at one John Connor, with intent to kill and murder, on the 3d of Jan. last.  A second count charged the prisoner with an intent to maim; and a third with intent to do some grievous bodily harm, on the day and year last aforesaid.

Mr. Williams, on the part of the prisoner, objected to the jury being composed of officers of the 17th regiment, by a private of which regiment the charge was brought; but withdrew his challenge.

The jury being sworn,

John Connor examined by the Attorney GeneralI am a private in the 17th regiment; I know the prisoner at the bar; on or about the 3d of January 1 was going down King-street, when he called out, ``there goes the bdy soldiersno military government nowit is not Governor Darling's time nowit is General Bourke's;" I said to one of my comrades if there was a watch-house near hand I would put that man into it, and enquired if he knew of one; I said I would keep watch where the prisoner went to, and sent to the serjeant-major to acquaint him of his conduct; I then followed him to a certain house in Pitt-street, and stopped outside till he came out; he went down the street before me; at length I asked him if he were a prisoner or a free man; he said he was as free as my; I asked him what was his name; he answered ``Stephens;" I heard a man whispering that that was not his name, and then asked him where he lived; he said ``I am not afraid to let you know where I lodgecome and I'll show you;" I followed him up Pitt-street; he turned up a passage, and suddenly turning round seized my bayonet and dragged it from my scabbard, but I wrenched it from him; the prisoner then went a few paces further up the passage; there was a man leaning over the fence named Deneen; a woman met us in the passage, who asked, ``what do you want with the soldier?" I asked if she knew the prisoner; ``yes," she replied, ``he lodges with mewhat do you want with him?"  I told her he had offended me grossly; she then requested me to come into her house, for the man was drunk, and told me not to mind him; the prisoner said, pointing to the man leaning over the fence, ``this man knows me;" I asked his name, and was told ``Stephen Stock;" I asked where he lodged; he said in the house opposite, pointing to the house; the old woman on this said ``be off out of this, you by soldier, what do you want here?" when she found I would not enter her house, and catching the prisoner by the arm, dragged him into the house, I followed; and an old man coming in his shirt to the door, exclaimed he would blow my brains out if I did not be off out of that; he had no gun in his hand; the prisoner opened a window opposite to me and presented a piece at me, saying ``Be off out of that, or I will blow your brains out;" he drew the gun back again, but coming in the door, the old man told him to give me the slugs in the gun if I did not start out of that; I then left the premises; while my back was turned and at a distance from the prisoner about 100 yards, I heard the report of a piece, and something which sounded like shot struck a chimney near me; I was eighty to one hundred yards when the gun went off; it seemed to come from the house I had left; I turned round, and looking in that direction saw two men at the door, one was in his shirt, and the other dressed; I cannot say whether they were the old man and the prisoner or not; I am certain the gun was loaded with either buck-shot, slugs, or ball; they might have been pebbles; had the gun been discharged from the door where I last saw the prisoner, the shot would have taken the direction where I stood; I saw the chimney two days afterwards; it was full of marks; pebbles would not have caused those marks at that distance; the plaister was knocked down on several places but I cannot swear that it was caused by slugs; the chimney at the time of the discharge of the piece was about 6 yards distance from me.

Cross-examined by Mr. Williams--The night was not dark; had the prisoner intended to kill me, he might have shot me at the window; the marks in the chimney were examined by myself and the constables; the marks were scattered about the height of my head; the chimney was stone; I cannot swear whether it was the wind or the weather that caused those marks; I cannot swear who fired; it might have been the old man; I was in a yard appertaining to the house when I was threatened; I cannot say whether it was a musket or a fowling piece; I do not know whether a fowling piece loaded with shot would kill at the distance of one hundred yards; I walked away, when the prisoner abused me; I followed him afterwards, and saw him housed; I never said I would have him out of the house; when he came to the door I was a short distance from it, I remained there till my comrade, Higgins returned with a constable; he came before the gun was fired; he had returned to Barracks before the gun was fired; I was not on the premises when my comrade came back; I stopped ten minutes after my comrade had left, but off the old man's premises; the old man threatened to shoot me; I can't swear that it was not the old man who shot at me; there was hesitation on the part of the people present, to inform me where the prisoner lodged; the old woman treated me kindly at first, till I had informed her that the prisoner had grossly insulted me; my comrade and self did notholding the prisoner against the walldraw our bayonets against his breast, and say he should go to the watchhouse, as we would have his life; I can't say whether the old woman was present when the prisoner was requested to come to the watch-house; I might have sworn to the person of the prisoner; I don't know whether, when I left the prisoner, it would have been possible for me to find him again; the shot passed my head; I swear that the contents of the piece did not go over my head; I swear the piece was loaded; I never had any conversation with Colonel Despard about settling this matter; the night was not dark, but too dark to identify a man at 100 years; it is usual to go to barracks at half-past eight o'clock; I remained with the prisoner till this time; I can't swear who it was fired the piece.

Dennis DeneenI am a blacksmith, a free man; I reside in Pitt-street; in June last the prisoner at the bar lodged near me, in the next yard; I remember a soldier being on the premises about half, past eight on the evening of that day; he was in the passage leading to the house where the prisoner lived; there were two soldiers; I heard Stock say this man knows me, pointing to me; I told the soldier his name was Stephen Stock; the prisoner went into the house, when Tetty told him he had no business there, and ordered him to be off; the people of the house told the soldier that the prisoner was at home in their house, and he should not leave that; Stock went in, and the door was closed; the soldier remained outside; Tetty, the owner of the house, told the soldier it was his house, and ordered him out of that; the prisoner said, opening a window, if he did not be off out of that he would blow his brains out; the soldier stopped about a quarter of an hour, and then retired, when Stock, coming to the door, fired a piece in the direction of the soldier; I am sure it was Stock fired the piece; I don't think the shot could possibly have hit the soldier; when the piece was fired the angle of a house intervened between the prisoner and the soldier; the shot might have hit him had there been no house in the way; it was moonlight; the door faced the way in which the soldier went, and the piece could not have been fired in any other way; I did not see the soldier when the gun was fired off; I think when the piece was discharged that Stock could not see the soldier; I don't think the soldier was 100 yards distant; I will swear positively it was Stock fired the gun; I didn't see the barrel; I was never on bad terms with Stock; I was the soldier, Connor, draw his bayonet, and tell Stock he should go with him; I didn't see a bayonet or bayonets held to the breast of Stock; nor did I hear any one say ``You shall go with us, or we will have your by life;" I don't know whether the gun was fired for the sake of intimidating Connor; I am acquainted with the situation of the chimney which the soldier swore was struck by shot; it was wholly impossible that the shot could have reached the chimney; the prisoner might have shot erroneously, without any malice.

By the CourtThe prisoner pointed his gun in the direction of Harts; the soldier went between the two chimneys.

By the JuryHad the prisoner taken aim he might have struck the chimney.

Edward Petty, examined by Attorney GeneralI live in Pitt-street; the prisoner at the bar lived with me in January last; I remember in the beginning of Jan., seeing a soldier in my yard about 9 o'clock in the evening; the prisoner at the bar was in the house at the time; I saw the soldier going away: after the soldier went away, I heard the report of a piece; I do not know who fired the piece; no one was in the house but the prisoner and I.

By the CourtThe piece is my own; I did not load the piece; I had powder in the house; no shot of any description: I missed some powder; I did not see the gun fired; when the soldier retired, I went to bed directly; I asked the soldier what he wanted; he said he wanted a man out of my house; I told him to go to his commanding officer, or get a warrant from a Magistrate, I had no shot, nor lead of any description in the house; I live 60 yards from the street; I heard of a chimney being shot; the shot could not have struck the chimney had it been fired in the direction of Harts's buildings; it was at least seventeen minutes before the gun was fired.

By the Attorney GeneralI did not see the soldier at the time the shot was fired.

By the JuryI am not aware that the neighbours are in the habit of discharging the pieces.

VerdictNot guilty.  Discharged by proclamation.

 

Notes

[1 ] See also Sydney Herald, 21 February 1833.

Published by the Division of Law, Macquarie University