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

R. v. Smith (No. 2) [1834] NSWSupC 124

murder - manslaughter - domestic violence - women defendants in crime - dying declaration

Supreme Court of New South Wales

Forbes C.J., 14 November 1834

Source: Sydney Herald, 17 November 1834[ 1]

Ann Smith alias Walsh stood indicted for stabbing John Taylor, at Sydney, on the 23d Oct., and inflicting a mortal wound on the left side of the abdomen, of which mortal wound he languished until the 30th, when he died; the offence was laid in a variety of ways.  The prisoner was undefended by counsel.  On the part of the prosecution, the following witnesses were called:- 

Charles Daniels. - I am a shoemaker, residing in George street; I knew the late John Taylor - he lodged in my house; I know the prisoner at the bar; she lodged there also as his wife; I remember seeing the prisoner and the deceased together at my house; it was on a Thursday; I was laying down in bed, I was very ill; the prisoner and deceased were standing near the door; it was about eight o'clock in the morning; my working tools were near them; we were all in the same room; I heard a few angry words between them; she called him ill names; I saw a knife in her hand as she was standing near the seat; she had the knife in her hand when I first saw her out of my bed; it was the knife belonging to my working tools; she was standing at the end of the seat where the tools were; the deceased went away from the door; he returned in about two minutes, and went to the  ladder to go up stairs, and said he was stabbed by Ann Smith; she was then present; she did not say anything at the time; she did not contradict him, she said nothing; he went up the ladder to a room above; the prisoner went up after him, and shortly came down again; she went into the yard, returned into the house, and went up stairs again where Taylor was; I had no means of sending for medical assistance, but a person in the yard, who attended me, gave him some castor oil as a purgative; he had been recommended to me; I assisted the deceased to the General Hospital on the following day, where I left him; I saw him dead a few days afterwards; I heard Ann Smith say, at the time they were disputing, that deceased had struck her with a bolt that lay by the side of the door; deceased was present; deceased did not deny it; he did not say a word; he might have given her a blow without my seeing it, when I lay on my bed; I was examined at the Coroner's Inquest; I think I made the same statement; I cannot speak as to the general habits of deceased, I was but slightly acquainted with him; he had been but three days in my house.

By the prisoner. - You and deceased left the house in the morning to go to the market, in friendship with each other, and returned the same; I saw no rum brought in, nor did I hear any argument about it; I did not drink any rum with you that morning.

By the Court - The first I heard pass between them, they were calling each other iill [sic] names; there was a small iron bolt laying near the door; I think it was that she meant, when she said the deceased had struck her.

By the Prisoner. - I did not see a pipe or tobacco in your hand when deceased went out; I think you shut the door and put your back against it; that was the first time he went out; he did not say he was wounded; I don't know why you shut the door.

By the Court. - When the deceased went up the ladder, the prisoner was standing close by; the prisoner said deceased had struck her with a bolt, before deceased said he was stabbed.

By Prisoner. - I did not hear deceased say, when the door was shut, that he was stabbed, and begged you to let him in; I did not see deceased pull you by the hair; I did not see him strike you with the bolt.

By the Court. - My wife was lying in the room drunk - she was quite insensible.

By a Juror. - I was quite sober; I had not drank any spirits.

James Mitchell, Esq. - I have charge of the General Hospital; about the 24th October, I remember a man, named John Taylor, being brought to the Hospital; he was brought in consequence of a wound in the left side of the abdomen; it was a punctured wound, which had penetrated the inner cavity of the abdomen; he was in a very dangerous state; in consequence of that wound he died on the 30th; after death I examined the body, and found that the intestines had been injured and a blood vessel punctured, which had caused a great extravasation and inflammation of the parts; the wound appeared to have been inflicted with a knife; if the knife had been thrown, it might have inflicted the same wound; I have no doubt the death was caused by the wound.

John Hughes. - I am overseer at the General Hospital; I remember on the 24th, last month, that a man, named John Taylor, was admitted; he complained of a pain in his side, and that he had been stabbed; he appeared to be suffering very much; on the first night of his admission, he did not seem to entertain any idea that he would die; he did afterwards.

By the Court. - How did you know that he entertained the idea that he would die?

Deceased, about two days before his death, requested me to send for a man, named Thompson, whom he wished to go the Police Magistrates and lodge an information against a woman, named Smith, and have her apprehended, as she had been the cause of his death; I sent for Thompson; I believe he afterwards attended him; I considered that he was then apprehensive that he was dying.

By the Attorney General. - He died on the 30th instant, on the day of the Inquest; I think Thompson was sent for on the Thursday previous to his death; he died on a Saturday.

Gabriel Thompson. - I am a bricklayer; I live near Ultimo; I knew the deceased John Taylor, he was in my service; I knew him about nine years; I employed him as a clerk or overseer; I employ several men; I never saw him the worse for liquor; I believe he cohabited with the prisoner at the bar; in the end of October last, I heard he was in the General Hospital; a communication had been left at a building which I was erecting, that a man, lying in the Hospital, wished to see me; I found him very ill; he said, Thompsom I'm no more; I told him to keep up his spirits, but he said, it was no use, as he found himself dying; he said he wished me to go and see him on the following day if he were alive, but he feared he would not; I considered that he imagined he was dying; he requested me to go to Colonel Wilson and lodge an information against a woman named Ann Smith, who had been the cause of his death, and have her apprehended and brought to justice for it; he pressed me two or three times to go to the Police Office; he said that Ann Smith asked him to fetch half-a-pint of rum, which he did, after which she wanted him to send for another, which he refused, when she took up a knife and stabbed him in his belly; I went to the Police Office and stated the circumstance to Colonel Wilson, but he appeared to be in a hurry, and took no notice of my statement; he made me no reply; I waited about for some time, and asked the constable what I was to do, when I was told I might do what I liked; finding I could not succeed in my endeavour to get the case entertained, I went away; I saw his body after death.

By the Prisoner. - The last word deceased said were ``Thompson, remember me - don't forget to go to Colonel Wilson, and have that woman apprehended.

The case for the prosecution here closed.

The prisoner called -

John Skinner. - I am attached to the Police Department; about the 23rd of last month, I heard that a squabble had taken place, and that a woman had stabbed a man in Goulburn-street, and I went to enquire into the circumstances; I went to the house of a person named Daniels, and enquired if there was not some man who had been stabbed by his wife - he said that there had been some words, but it was a family affair, and had been done away with.

Stephen Jeffry, by the Prisoner. - I heard the last words of the deceased; he said that he wished to have Ann smith taken, as she was the woman who had stabbed him with a knife; he said it was in a dispute; he expressed a wish to see the prisoner, Ann Smith, before he died.  The Court advised the prisoner not to put any further questions to this witness.

The prisoner had no further evidence to call on her behalf, and his Honor summed up the evidence, making suitable remarks for the guidance of the Jury, as to what constituted the legal difference between murder and manslaughter, with the manner in which they respectively bore upon the case.  The Jury returned a verdict of Manslaughter against the prisoner, and she was remanded for sentence.

 

Forbes C.J., Dowling and Burton JJ, 18 November 1834

Source: Sydney Herald, 20 November 1834[2 ]

 

Ann Walsh alias Smith convicted of manslaughter.  His Honor the Chief Justice observed, that it appeared on the trial of the prisoner, that the fatal result arose out of a disagreement with the deceased, who had previously used violence, when the prisoner, having a deadly weapon in her hand struck the deceased a violent blow on a vital part of the body; taking all the circumstances of the case into consideration, the Court was of opinion, that it was one in which a sudden impulse of passion had prevailed over discretion, and one which did not call for the extreme severity of the law - which would subject the prisoner to transportation for life.  The Court was of opinion that justice would be awarded, and an example held out against yielding to such impulses, by inflicting on the prisoner the sentence of transportation for seven years.

 

Notes

[1 ] See also Sydney Gazette, 15 November 1834; Australian, 18 November 1834.  For another case in which Ann Smith was charged with robbery, see Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2414, vol. 11, p. 154.  Verdict: not guilty.

[2 ] See also Sydney Gazette, 20 November 1834; Australian, 21 November 1834.

Published by the Division of Law, Macquarie University