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

R. v. McGregor and Maloney [1834] NSWSupC 13

murder, elements of - provocation - women defendants in crime - jury of matrons - causation in law - Illawarra- jury, doubts about verdict

Supreme Court of New South Wales

Burton J., 22 February 1834

Source: Sydney Gazette, 25 February 1834[1 ]

 (Before Mr. Justice Burton, and a Jury of Military

Officers,)

Sarah McGregor and Mary Maloney were indicted for the wilful murder of Charles Waldron, Esq. at Springhill, Illawarra, by violently throwing him on the ground, and beating him on the head and face with their clenched fists on the 14th January last, from the effects of which he died on the 28th following.  A second count charged Sarah McGregor with inflicting the injuries, and Mary Maloney with being present, aiding and abetting.

The Solicitor General stated the case.  Mr. Rowe defended the prisoners.

Mrs. Jemima Waldron being sworn, said the deceased Captain Waldron, was my husband; on the 14th January last, I resided at Springhill, Illawarra; my family then consisted of my husband, myself, and twelve children, nine of whom were living with us; the prisoners were our assigned servants, and had been with us only eight days; my husband had lain rather later than usual on that morning, but he went out about half-past 7 o'clock, to give some directions to the men on the farm; he returned in about half an hour; it was the first morning I had ventured from my bed since my last confinement, and my husband felt rejoiced at seeing me rejoin the family breakfast table; shortly after coming out of my dressing room, I observed that the verandah had not been washed; my husband was then sitting in it, smoking his pipe, which he had been recommended to do by his medical adviser; the two prisoners were to have performed this duty alternately, in order that it might not fall too heavily on one; it was the duty of Sarah McGregor to wash the verandah on that morning; she was putting wood on the parlour fire; I said to her, Sarah, the verandah has not been washed this morning; she answered, it has; Mary Maloney came into the parlour at the moment, and I told her also that the verandah had not been washed; Sarah observed, yes, Mary has done it; I said to Mary Maloney, I do not call you to account for not doing it, as it is not your duty, but Sarah's; my husband overhearing what passed, called out, Jemima, don't let them persuade you it has been done, as I will take my oath water has not been on it; he then called Mary Maloney into the verandah, and said, look at the ashes which I knocked out of my pipe last night, and the carpet upon which I placed my feet; she replied, those are not the ashes of your pipe but of mine, as I was washing the place; she then commenced the most horrid imprecations, and calling Capt. W. a b--old soldier, said, ``may h--and d--b--you all in the house; my husband then said, this is not language for me or my family to hear, and he followed her out towards the kitchen, which is detached from the back part of the house, by a small yard between them; by this time, Sarah McGregor had got up from the parlour fire, and I smelt spirits upon her; I asked her respecting it, but she denied having drank any, and went towards the kitchen where Mary Maloney was making a great noise; I followed to the back hall door, and saw my husband leaning with his right arm against the kitchen door, and holding his pipe in his left hand; he said, Mary you shall go to the Beach, meaning the Police Office as it is usually called; her language was at this time a continuation of the most horrid cursing; Sarah said, if Mary goes I will go too; we came together, and we will go together; Cat. W. replied, Sarah you have done nothing to induce me to send you, and you shall not go; she said, I will, and you shall see that I will give you reason to send me; she then rushed at my husband, and struck him with great violence on the right side of the neck; he fell immediately on his left side; there was a descent of about 14 inches, where he was standing, and he fell with great force on some rough stones, with which the yard is paved; Mary Maloney then followed him up, and struck him repeatedly with her clenched fists, while he was lying on the ground; the hat which he had on was much bruised in the fall; they both repeatedly struck him in the face and neck, with all the force they could command; he could not extricate himself, and I repeatedly called out to the men about the place to come and help him, but none came; two of our men, named Rawlings and Logan were unloading wood from a dray at the back of the house; from the noise of the women, and the cries of my children who flocked around me, these men could not perhaps have herd the call of my husband, but they must have seen him lying on the ground, and they did not come to save him from the fury of the women; my son Charles, who is 12 years of age, came from an adjoining servant's hut, to his father's relief; I was making a feeble effort to go towards him, but by this time he had risen from the ground; two more of our men who were in a work shop under the same roof as the kitchen, and who must also have witnessed what occurred, came at last to my repeated calls for help, and one of them, a carpenter, laid hold of Mary Maloney; my husband then came towards the hall door; his arms fell, as he attempted to raise them; I said my dear, you are hurt; he looked at me with a fixed stern countenance, and feebly answered, oh! no; I then said to Mary Maloney, you vile and wretched woman, what have you done to my husband; she replied, you call me a wretch, do you know what a wretch is? and immediately turning round, she exposed her person to my view, that of my husband, our family, and servants; I said my dear, I shall never be able to look up again in presence of the men on the farm; my husband said come in, and shut the hall door; he placed our men servants round the house, to prevent the prisoners offering us farther violence; the prisoners were in a most ungovernable rage, and made use of the most dreadful language, such as I had never before heard; they both wished short life to the b--old soldier; they also called my husband a b--old b--; the men might have prevented the blows he received on the ground, if they had jumped from the dray; I perceived an instant change in my husbands eyes; I saw no marks of violence on the head, but I knew at once that he was seriously injured; the prisoners called out, we will have our clothes, and Sarah McGregor made her way to my daughter's bedroom window, in which she broke three panes of glass; my daughter jumped from her bed, and begged for her life, and I , in order to pacify their rage ordered their clothes to be given them; my husband wrote a few hurried lines to Captain Allman, the Police Magistrate of the district, who came remarkably hasty; he also dispatched a short note to a neighbour named Shoubert, who came to our assistance; my husband said, ``is the tea made? give me a cup, for my tongue is dry;"  I was handing him the cup and saucer, when he said, ``Jemima, my head is falling," and I immediately perceived his head to be violently shaking; the right side of his mouth was contracted towards the eye; he also said, ``look at my hand - I can't touch the tea, and I then saw that the whole right side was paralysed; this sensation came on about 25 minutes after the assault took place, and immediately after the messenger was dispatched for Captain Allman; his voice was imperfect; the prisoners threatened to run the b--old soldier through with a carving knife, and I therefore sent one of the men into the kitchen to secure the knives, which was done; my husband by this time could not move; he did not complain; he seemed to have no inclination to speak; I spoke to him repeatedly, bur [sic] he did not answer me; when Captain Allman, came the tears came in my husband's left eye, but none in the other; the entire right side was dead; he faintly articulated; ``my dear friend, I have not a hand to give you," when he feebly raised his left hand; Captain Allman went to secure the prisoners; after they had gone I put my husband to bed; Captain Allman advised a medical man to be sent for, and Dr. Montagu Grover arrived about noon; my husband had not been as well as usual for some time, but he was not seriously indisposed; Dr. Imlay had before recommended smoking; he was not in an infirm state of health; he was 53 years of age; he had never before been affected with paralysis; he was an active and a healthy man - none in the colony more abstemious, and not given to sudden bursts of passion; he was the best of husbands, fathers, and masters; he was not in a great passion with Mary Malony, but on the contrary was very calm; I saw no blood, nor any external injury on his head; he continued in a state of continual dosing; there was no noise in his throat, but a redness and swelling on the left side of his face and head; he continued in that state until the 28th of the month, when he expired a little after 4 o'clock in the afternoon; he never left his bed from the 14th, and his articulation was imperfect, and only occasional ever after; he seemed only once during his illness perfectly to recognise me, and he then spoke of his children, for whom he hoped the Lord would spare him for a few years; he knew his case required great attention, and great assistance, and he therefore sent for Dr. Imlay, who arrived eight days fatal occurrence; he seemed to know Dr. Imlay whose name he pronounced imperfectly.

Cross-examined by Mr. Rowe - The kitchen is on the left side of the back hall door; it is about 24 yards from the verandah to the kitchen, the door and window of which were wide open, and fastened back; my husband was standing at the door with his pipe in his left hand; James King was in the work shop which is only temporarily separated from the kitchen; he is a carpenter, and must have heard and saw all that passed, but he did not give any assistance; there was nothing to prevent my both hearing and seeing all that happened; I did not see him raise his clenched fist; if he had done so in the position in which he was standing, I must have seen it; he never entered the kitchen door, nor did he make use of any ill or provoking language; from the very great rage the prisoners were in, I judge they must have been drinking spirits; I never quitted my husband's side; the fall was on his left; and the paralysis was on the right side; the blows were given with the greatest possible violence; he was lying at least ten minutes on the ground; there was a bruise on his right thigh extending towards the hip; the prisoners had no shoes on at the time; I never knew my husband to lift his hand to a servant since I married him; he did not attempt to strike Sarah McGregor.

(Mrs. Waldron gave her tedious testimony in an impressive and distinct manner, and her coming into Court in a deep mourning dress, with her infant in her arms, tended to increase that sympathetic feeling, which the melancholy detail seemed universally to excite.)

The testimony of Mrs. Waldron was mainly corroborated by that of her son; with this trifling exception, that his father betrayed slight symptoms of anger and excitement, two or three days prior to his decease, at hearing mention of his son being about to be sent on horseback for some meat.  Opposed to their joint evidence, two witnesses who were produced for the prosecution, swore positively that Captain Waldron repeatedly called the two prisoners d--b--, and threatened, and even shook his fist at them; these men, however, (William Wade, and James King)were the two who were at work in the carpenters'; shop, while the assault was being carried on, and who refused to come to the assistance of their master.

Francis Allman, Esq. being sworn, said I am Police Magistrate at Illawarra; I was sent for hastily to Captain Waldron's residence on the morning of the 14th January; I arrived there about half-past eight o'clock; Captain Waldron and I were brother Magistrates; I found him lying on a sopha [sic] in his parlour, in a very agitated state; he had lost the entire use of his his [sic] right side; we were old brother officers, and he shed tears when he saw me; I advised a Medical gentleman to be sent for; the last time I heard him speak, was I think, the day before his death; he faintly articulated ``Allman," on my presence being announced to him; I took the affidavit of service of the subpoena in this case, on Dr. Montagu Grover; I do not know the reason of non-attendance; I believe his wife is considered in a dying state.

[The witness Grover was three times called on his subpoena, and not answering, an attachment was granted against him.]

This closed the case for the prosecution.

On being called on for their defence, the prisoner McGregor handed in a written statement, which was read by the officer of the Court.  It was to the effect that reports of a most injurious tendency, had been industrously [sic] circulated to their prejudice, respecting the injuries they had inflicted on their deceased master, but they entreated the gentlemen of the jury to dismiss this from their minds, and dispassionately to weigh their case, which they reposed with confidence in their honour and integrity.

Francies Allman, Esq. being recalled by Mr. Rowe, said I saw Captain Waldron frequently after his illness; almost every day during it, and sometimes twice a-day; he never spoke to me after the first day, except on the occasion I have before mentioned; from the seventh day of his illness, I did not entertain the slightest hope of his recovery; the deceased was a very thin spare man; I am of opinion he could be provoked to sudden and violent bursts of passion; he was the very contrary of an intemperate man in his living; he was a most humane good man; there were no marks of violence whatever on the head; Dr. Grover attended the deceased on the first day of his illness.

Mrs. Waldron recalled by the Court - I did not leave my husband from the time I first say him on the ground, until I got him into the house; he never after walked either in the yard, or the garden; what the witnesses Wade and King have sworn in this respect is absolutely false.

This concluded the prisoner's defence.

Mr. Justice Burton proceeded to charge the jury.  His Honor stated, that he lamented there was not the evidence before the Court, of the medical gentleman who attended the deceased in his illness.  The law officers of the Crown however, were not to blame for this circumstance; as they had done their utmost to procure his attendance.  It was usual, in cases of murder to have the evidence of a medical man, but he did not apprehend that it was necessary.  He would however read over his notes of the evidence, and in the mean time send for a surgeon whose opinion he would recommend the jury to hear, before they arrived at a conclusion in the case.  With respect to the facts of the case, as they bore on the law of murder, he would inform the jury, that if the death of a human being was occasioned by violence inflicted from any unreasonable revenge of an expressed, or implied provocation, the act amounted to the highest degree of culpable homicide.  There was a case on record in a book with which every member of the legal profession was conversant, of a boy having been taken by the owner of a field, in the act of stealing wood from it, who inflicted the severe punishment of tying the lad to the tail of a cart, and dragging him over the field.  Death was the consequence that ensued, and the law judging the correction used, as an unreasonable mode of revenge, the offender was held to be guilty of murder, and he was executed.  His Honor mentioned this fact, to direct the jury, should they arrive at the conclusion that a case of provocation had been established. 

The learned Judge then went through the whole of the evidence, commenting upon such parts of it, as had a direct bearing on the case.

It being intimated that Dr. Hosking was in attendance, Mr. Justice Burton stated to that gentleman the particulars on which the Court required his professional opinion, but the jury interrupted His Honor, and hinted that they could decide wtthout [sic] the evidence of the medical gentleman.

Mr. Justice Burton - I take it upon myself to recommend the jury to receive the medical opinion of the person who has been provided for that purpose.  His Honor then again read over his notes of the evidence of the symptoms which appeared in the deceased's case.

Mr. Peter Hosking, being sworn, said - I am of opinion that the dryness of the deceased's tongue merely indicated fever in the system, without having any reference to the paralytic affection under which he was labouring; paralysis might have been induced by anger, or by other cause of mental excitement; I collect nothing extraordinary from the vomiting of the deceased, which follows in cases of paralysis arising either from external injury affecting the brain, or by the natural rupture of a vessel, with effusion of blood on the surface of the brain; a blow must be sufficiently severe to rupture a blood vessel in or upon the brain to cause paralysis; paralysis arises from compression, not from concussion of the brain; I never knew, nor heard of a case of paralysis induced from concussion of the brain; compression may arise from fracture of the skull, or from the natural rupture of a blood vessel on the brain; paralysis cannot occur in my opinion, except in cases where the brain is materially injured; I cannot conceive that paralysis could arise from a blow, of which there was not considerable marks of external violence; I do not conceive that paralysis could be occasioned from a blow, which did not manifest itself, until 25 minutes after the injury had been received.

Cross-examined by Mr. Rowe - I do not conceive that a person could be cool, and collected for 25 minutes after the infliction of a blow sufficient to cause paralysis; a person so situated, must have suffered considerable external injury; cases of this nature require the patient to be kept with the utmost care and quietness; disturbance might increase the symptoms; it might induce a greater effusion of blood from the ruptured vessel; anger or excitement after paralysis might aggravate the symptoms, and produce fatal consequences.

 Mr. Justice Burton suggested to Mr. Rowe that there was no necessity to protract the present investigation, enough had perhaps been proved for the object.  His Honor then left the case for the consideration of the jury, directing them not to decide hastily, but to weight the case with deliberation.

The jury retired for about a quarter of an hour, and returned with a verdict of Guilty of Murder, but recommended the prisoners to mercy, on the ground, that when they committed the offence, the fatal effects were not contemplated.

The learned Judge told the jury, that if their opinion was formed that the death had ensued from the unlawful and unprovoked violence of the prisoners towards their master, he was of opinion that the crime amounted to the legal definition of murder.  But he would advise them to reconsider their verdict, and say whether their recommendation coupled with his explanation would reduce the offence to the milder one of manslaughter.[ 2]

The jury persisted in their verdict, which was recorded.

The Solicitor General, having prayed the judgment of the Court.

Mr. Justice Burton passed sentence of death upon the prisoners, awarding public execution on Monday morning next, and their bodies to be delivered to the surgeons for dissection.

On the sentence being pronounced, the prisoner Maloney loudly denied all intention to murder the deceased, and put it to the Judge and Jury, whether two unarmed females could have foreseen the awful consequences of their attack.  The prisoner McGregor dissolved in tears, and pleaded pregnancy.  They were then removed from the bar.

His Honor ordered William Wade and James King, to stand committed to take their trials for wilful and and [sic] corrupt perjury.

The trial excited a lively interest, from the circumstance of the accused, being young women of prepossessing appearances, one of them of such mildness of countenance, as to render a conclusion of her disposition to commit so horrid a crime quite irreconcileable [sic].  The Court was crowded to excess, and the adjournment did not take place until 8 o'clock.

 

Burton J., 24 February 1834[3 ]

Source: Sydney Gazette, 25 February 1834[4 ]

 

MONDAY, FEBRUARY 23th,

About 12 o'clock, Mr. Justice Burton took his seat on the Bench, and Sarah McGregor being placed at the bar, His Honor observed, that the prisoner having pleaded pregnancy in rescue of execution, sentence of which was pronounced against her on Saturday, a jury of matrons had been summoned; and directed that they should be sworn forthwith.  Mrs. Curtis (forewoman), Mrs. Leburne, Mrs. M. Byrne. Mrs. S. Byrne, Mrs. Gordon, Mrs. Chandler, Mrs, Bolton, Mrs. Levey, Mrs. Bayley, Mrs. Hawthorn.  Mrs. Carroll, and Mrs. Dowling, were then sworn to ``seareh [sic] and try the prisoner at the bar, whether she was with child or not; and thereof a true verdict to give, according to their skill and understanding."

His Honor having told them that they were sworn to try the simple fact, whether or not the prisoner was enceinte, tbey [sic] withdrew to the jury-room, where the prisoner was sent to them, and in about half an hour returned into Court, with a verdict that ``the prisoner was with child, but not with quick child."  In answer to some questions from the Court, the forewoman observed, that it would require a fortnight or three weeks to decide the case.  His Honor then told the jury that unaccustomed as they were to public duties of this nature, they had returned a verdict which the Court could not receive.  They had better therefore again retire, and take into their consideration, whether the prisoner was pregnant at all or no; - if the former, they would humanely give her the benefit of any doubt they might entertain.  After a further absence of about 20 minutes, the jury returned into Court, finding that ``to the best of their opinion, she was not with child."  His Honor having thanked them for their attendance, and informed them that an order would made out for their expenses, they were discharged.

 

Forbes C.J., Dowling and Burton JJ, 24 February 1834

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

 

[p. 163] The prisoners were tried on the 22nd inst. before Burton J. for the wilful murder of Charles Waldron Esq at Spring Hill by casting & throwing the deceased upon the ground, & with both their hands striking him on the head & shoulders, thereby giving unto him divers mortal wounds, bruises & contusions in & upon the right side of the head & shoulder, of which he languished from the 11th until the 20th January & died.

There was evidence that the prisor. had thrown the deceased down on the ground, & that while down they struck [p. 164] him with repeated blows.  He afterwards arose, & being ill, he went to bed, apparently affected with paralesis & died on the 20th January.

There were no external markings of violence on his head & shoulder as alleged in the indictment - no wounds, bruizes, or contusions sufficient to cause death.  No surgeon was examined to shew that the violence used by the prisoners was sufficient cause death, & the case was left to the jury to presume that the death arose from the casting & throwing & the blows given by the prisoners, & they found the prisoners guilty of murder but they were recommended to mercy on the ground that probably they did not contemplate the fatal consequences.

The Judge reserved the case for the consideration of his brethren.

[p. 165] The Judges were unanimous that whether the prisr. contemplated the fatal consequences of their act made no difference as to the legality of their conviction. - It was no less murder, -- though the consequences of their illegal act might not have been anticipated.

Forbes C.J. thought the case properly left to the Jury, & was of opinion that there was no need to prove that the Deceased was, as alleged, wounded, bruized & contused on the head; but he thought the conviction not satisfactory for want of sufficient evidence of the surgeon, that the death was really occasioned by the acts of the Prisoners; for as he died of apoplexy, non constant, but it might be a natural disorder.

[p. 166] Dowling J.  I am of opinion that the prisoners ought to have been acquitted, there being no constat of evidence, to shew clearly that the death was occasioned by their acts.  First I apprehend, that the allegation, that the prisr. had given by the means alleged, ``divers mortal wounds, bruizes & contusions in & upon the left side of the head & shoulder of the deceased," was a material allegation, requiring proof, because it went to shew primia facia, that by reason of such wounds, bruizes & contusions death had ensued; & secondly a malto fortiori, that there ought to be clear & distinct proof that the proximate cause of the death, was the violent acts of the Deft, though there were no actual wounds, [p. 167] bruizes & contusions as alleged.

Burton J. himself seemed to doubt the propriety of the conviction, &

It was agreed that he should state the opinions of the Judges upon the case, when he came to report it in the Executive Council.

A surgeon, who had been subpoened, but was prevented from reaching Sydney time enough to attend the trial, by an accident to his horse, produced an affidavit after conviction, stating that in his opinion the deceased had probably died from apoplexy, he having a predisposition to that disorder, & that in his opinion there were no marks of violence externally sufficient to have caused death.

The decd had been buried without an Inquest & the widow would not allow the surgeon to [p. 168] open his head.

It was understood that the prisr. would be recommended to the crown for a pardon.

 

Notes

[1 ] See also Sydney Herald, 24 February 1834; Australian, 24 February 1834.  The judge's trial notes are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2413, vol. 10, p. 145.

[ 2] The Australian, 24 February 1834, said that the jury returned a verdict of guilty with a recommendation of mercy. After reporting that the foreman told Burton J. that the reason was that the fatal result was not contemplated, the Australian stated: ``Judge Burton wished to put the Jury clear upon one point, if they considered the blows were given without provocation, and that they caused death it was murder as the law presumed the animus in the act; if they considered the blows had been given and were not more than any provocation that might have been received, then it would only amount to manslaughter; but if they were of opinion the blows had not been given, or if given, were not the cause of the death in that case they must acquit the prisoners." The jury then reconsidered their verdict and pronounced both prisoners guilty.

Attached to the judge's trial notes (Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2413, vol. 10, at p. 145) is the following letter addressed to ``My Dear Judge":

``You will pardon me for enclosing to you a Petition which I received late last night from the Jury of yesterday - the Medical Man being mentioned in it   I feel should not be discharging a duty were I not to observe that I am credibly informed the whole of his Deposition went to shew that the Death of Capt: Waldron was occasioned by, - not the act of the Prisoners in his case but - the bursting of a blood vessel in the head subsequently.

``Shall I leave the Petition in your kind care, or should I cause it to be presented?  In adding that you may command me to wait upon you at any moment if necessary, - which I shall consider a Pleasure, - Believe me in the Honor I feel in subscribing myself My Dear Sir, yours very sincerely and obediently,

``Thos. D. Rowe"

The  Australian of 24 February 1834 thought that the verdict was wrong, and that this was manslaughter at most.

[3 ] As it often did, the Gazette had the wrong date: the 23rd of February 1834 was a Sunday.

[4 ] See also Australian, 28 February 1834.  On the same date, the Australian claimed that this was the first time a Jury of Matrons had been empanelled in the colony.  A woman named Ann Sheridan was subsequently placed in the stocks for six hours for getting drunk and using violent language to one of the Jury of Matrons: Australian, 28 February 1834.

On 27 February 1834, the Sydney Gazette reported that ``The two women Maloney and McGregor, who were convicted on Saturday of the murder of Captain Waldreon, and ordered for execution on Tuesday morning, did not suffer according to the terms of their sentence; the Sheriff arriving at the gaol on Sunday morning, with a respite deferring their fate until to-morrow.  A very considerable degree of interest has been excited by this case, many persons being of opinion, that the justice of the case would have been fully met by a verdict of manslaughter.  The conduct of M'Gregor since her condemnation, has been penitent and becoming; but it is to be lamented that her wretched companion continues to manifest the most disgusting levity."  The Executive Council decided that they should be respited until the King's pleasure was known.  It recommended that they should be imprisoned with hard labour for three years: Australian, 28 February 1834; and Bourke to Stanley, 26 February 1834, Historical Records of Australia, Series 1, Vol. 17, p. 379.

The governors had discretion to exercise Crown mercy on behalf of all prisoners sentenced to death except those convicted of murder or treason.  In the latter cases, the final decision had to be made by the King on the advice of the British government: see Historical Records of Australia, Series 1, Vol. 12, pp 644-645; correspondence between governor and judges, 1828, Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, pp 190ff.; and see R. v. Dwyer, Kinnear, Madden and Blewit, 1825.

Published by the Division of Law, Macquarie University