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

R v Collins [1835] NSWSupC 64

murder - manslaughter - provocation, cooling of the blood - provocation, cuckold - provocation, sexual jealousy - Murrumbidgee River -squatters' runs, isolation - Female Factory - insanity

Supreme Court of New South Wales

Forbes C.J., 7 August 1835

Source: Sydney Herald, 13 August 1835[ 1]

 

Friday - Before His Honor the Chief Justice and a Civil Jury.

Samuel Collins, a native of the Colony, stood indicted for the wilful murder of James Hillas, at the Murrumbidgee River, on the 3rd March last, by shooting him with a pistol loaded with powder and ball, which inflicted a mortal wound on the body of the said James Hillas, of which he instantly died.  The prisoner pleaded Not Guilty.  Mr. Wentworth was retained by the relatives of the deceased on behalf of the prosecution; and in an impassionate address to the Jury, detailed the circumstance of the melancholy case, as it would be laid before them in evidence; observing, that painful as was the duty which devolved upon them, they would find no alternative but to pronounce the unhappy prisoner guilty of the dreadful crime of Wilful Murder.  The following witnesses for the prosecution were then called.

John Purcell. - I remember the 3rd March, the day on which Mr. Hillas lost his life; I was then in the service of the deceased, and resided with him at the Murrumbidgee; on the evening in question, a few minutes after tea, it being then between eight and nine o'clock, the dogs suddenly began to bark; there was no person present but the deceased, Mrs. Collins the prisoner's wife, and myself; I got up on hearing the dogs, and went to the door, where I was met by the prisoner, who had a pistol in his hand; I said ``hello Sam," and put my hand upon his shoulder, he told me to stand back; the deceased was sitting near the door and rose up to shut it, when the prisoner fired; the bullet entered the body of the deceased who exclaimed, putting his hand on his breast ``Oh, my God I am shot," he went towards the bed, and almost immediately expired; I stayed by him until I saw him die, I then went out to ascertain how many persons there were, when I saw the prisoner standing at the distance of about 30 yards in front of the hut, he had a brass barrelled pistol in his hand; as soon as he saw me, he pushed towards me, and I being apprehensive that he wanted to take my life also, I ran away as fast as I could and he ran after me; the river crossed the direction in which I ran, and having no alternative to save my life, I plunged in, at a great risk of drowning, as the river in that place was very deep, about four or five rods wide, and I could not swim; I was too much agitated by the fear of being shot to consider the danger of crossing the river, at that place, though the risk I ran of being drowned was as great as that of being shot, I had not time to look for a suitable crossing place; I got over the river somehow or the other, I was so frightened I cannot tell how; I did not see the prisoner follow me, I ran as fast as I could without looking behind me to Mr. Thorn's station, which is about two miles from Mr. Hillas's hut; I found four or five men there who were strangers, and gave the alarm of the murder of Mr. Hillas, they took two muskets and accompanied me back towards Mr. Hillas's; we had not got above a quarter of a mile from Thorn's when we met the prisoner coming towards us with the pistol in his hand, the men hailed him but he made no answer, but rushed towards us presenting his pistol, one of the men fired; the ball struck him in the breast and he fell, I then ran up to him as he lay on the ground, and took the pistol out of his hand; it was then loaded, and appeared as if it had been snapped as the hammer was down and the priming was on of the pan, it was loaded with ball, two charges; don't know when the pistol was snapped, I took him in custody and gave him up at Goulburn; I had no conversation with him as to where he got the pistol, I never saw it before; there was some mention made of his having got it at Mr. Rose's, but I cannot swear it was the prisoner who said so; the distance from Rose's to the residence of the prisoner is about twenty seven miles, 15 from Rose's to Hillas's, and about 12 miles from Hillas's to the prisoners, he said he had come from Shelley's and Mr. Rose's that day, in a conversation I had with him on the way to Goulburn.

Cross examined. - The dogs barked and I went to the door and met the prisoner coming in, I knew who he was; I did not tell the deceased that ``Collins was coming," I only spoke one word ``hello Sam," the deceased did not tell me to keep him out, he never opened his lips about it, at that time, nor anything to that effect; it was not in consequence of such directions, and my effort to put him out that he presented his pistol, I did not see him until my head was against his breast at the door; from the time the dogs first barked until the deceased was shot two minutes had scarcely elapsed; I did not attempt to push him back before the pistol was presented.

Mr. Wentworth. - I would ask what that has to do with the case; there is no apparent relevancy whatever.

Mr. S. Stephen. - A great deal to do with it, I wish to shew the Jury, that it was on consequence of the expressed determination of these parties to oppose by force his attempt to recover possession of his wife, that he assumed an appearance of hostility.

Cross-examination continued. - I don't know that deceased knew who was there when I said, `hello Sam;" there are other ``Sams" in the Country besides him; I don't know any more of that name in the neighbourhood; I did not use the expression ``don't shoot me," the deceased got up from where he was sitting, for the purpose of shutting the door, which he was in the act of doing with his left hand when he was shot; the prisoner's wife had been in the habit of going backwards and forwards to the deceased, for about two months before the transaction took place; the prisoner is a stockman to Mr. Jobbins, and lived about fifteen miles from the residence of the deceased, he had the care of a good many cattle, but he might have looked over the whole in twenty-four hours; I am not aware that Mr. Jobbins is in the habit of purchasing lean cattle and driving them to his run for the purpose of fattening them, I was never employed by the deceased to go to Collin's hut in his absence, and bring Mrs. Collins to the deceased; I was never asked by deceased to do so; I never returned in company with her to Mr. Hillas, I was never seen with her; I was at Mr. Hillas's when she came there, she was brought by the stockman; I was once married, it is nothing to me what a man does with another man's wife, so he does not touch mine; the first time the prisoner came to the hut on the first occasion of his wife's absence from him, he came in a great passion; I don't know that he went to the station the second time to look for his wife, he told me so afterwards when my prisoner; on the first occasion, he saw his wife, and took her home with him, he put his arms round her neck and kissed her, saying, that if she would go home and be a good woman, he would never upbraid her with what had happened; she went with him and Mr. Hillas accompanied them out of my view; they went the short road through the bush, a person may be seen at the distance of a quarter of a mile from the hut, the dogs might not see a person approaching, if he came ``on the sneak;" he called at the hut a second time in search of his wife, and asked Mr. Hillas if she was there; Mr. Hillas said she was not; he then said that if he saw his wife there, though Mr. Hillas was a stronger man than he, he would have blood; I never heard Mrs. Collins say, if Collins came there, there would be bad doings; I saw Collins with a cow of Mr. Hillas's bearing his brand; I don't know under what circumstances he got possession of that cow, I don't know whether he bought it from Mr. Hillas or not, I don't know that Mr. Hillas made him a present of the cow; I never saw her bring anything with her but her own cloathes [sic]; I don't know whether the prisoner crossed the river in following me or not; I can't say whether his clothes were wet, he might have crossed at a shallow place; if he crossed where I did he was well wet, he was in the neighbourhood by Thorns nearly as soon as I was.

By a Juror. - Mrs. Collins employed herself at Mr. Hillas's principally in washing and repairing her own clothes; I slept in the kitchen, there is only another room besides the kitchen in which Mr. Hillas slept, there was but one bed in the room, Mrs. Collins also slept there.

John Ryan examined. - I am an assigned servant to Mr. George Shelly, I can't say what distance Mr. Shelly's station is from the prisoner's residence, our station being beyond the boundaries of the Colony, we have no correct method of ascertaining distances; I would say as near as I can guess, seven or eight miles; I have seen the prisoner before, he stopped one night at our station; I remember hearing of Mr. Hillas being shot, I cannot say it was on the same day on which I saw the prisoner, it was somewhere about the same time; he came to my hut to deliver me a pound of tea and a new pipe, I induced him to take some dinner, and I put the kettle on and prepared some tea;  I had some conversation with him about his wife, he told me he was going to Hillas's to bring her home; he suspected she had been with a man named McDonald, but he had ascertained that he was mistaken; he expressed himself certain that she was at Hillas's as he had decoyed her once before; he said he would be a laughing stock for the the [sic] country no longer; Hillas had been going round the country singing songs about him and holding him up to ridicule, and threatening that if he ever found him about his place he would knock his d-d head off; I told him that I would not be annoyed with such a worthless woman; but that I would report her conduct to Government and have her sent to the Factory;[ 2] he said he had reported her to the Bench of Magistrates at Yass Plains, but nobody ever went to look after her; and as he had heard of a plot between the deceased and her to get him transported at the first convenient opportunity, he though he might was well lose his life in an attempt to get his wife for the purpose of returning her to Government, as to have it sworn away by perjury; he understood that the plan proposed, and which was speedily to be carried into execution was to obtain some person's cattle, brand them in his name, drive them into his herd, and then give an information against him, and thus, by getting him transported for cattle stealing, put him out of their way for the remainder of his life; he seemed very much distracted in his mind, and in the midst of the most serious conversation would frequently jump up and dance in a frantic manner about the room, and distressed me to sing the song which the deceased had set going about the country concerning the infidelity of his wife; I told him I could not sing it, and that I had never heard it, he would not believe me, and commenced singing a verse of it himself, which ran thus -

When Sam went home and found his wife gone,

He mounted a horse, and off he did ride,

It was funny to see how he scampered along

With Jobbins's butter knife slung by his side;

Across the plains he did caper and quiver,

And swore he'd surprise all the lads on the river.

In concluding the song, he said he expected to get a d--d good beating when he got there, as all hands would ``pitch into him; he knew that a man called ``Red Jim" would be there, and would assist Hillas in beating him; he pulled a pistol out of his pocket and said he would ``bounce" them with that, as it was good for nothing else; he would put no confidence in it, but would cut a bludgeon on the way which would enable him to defend himself against them; I don't know where he got the pistol; I have not been long resident at that part of the country; he said he once expected that Hillas would be the last man in the country who would serve him in that manner as he had rendered him many services, had supplied him with provisions for three months at a time, and had even lent him money out of his pocket which had never been repaid; that his wife - the most cruel of women, he had given her the most satisfactory proofs of his love for her by having frequently risked his life in crossing the river when the torrent was raging by floods, for the purpose of procuring comforts for her; he felt he had not merited the cruel treatment to which he had been subjected, and would put an end to it; he stopped at the hut three or four hours; it was after the conversation that I heard that Hillas was shot and buried; it was reported that a person named Swindells had lent him the pistol; when I found he was intent on going there, I told him that it might prevent their molesting him if he had an old letter about him which he might produce as an order from the Magistrates at Yass to deliver her up; he left my hut, and I did not see him again until the present time.

Cross-examined. - I understood that the prisoner had forced McDonald's hut in his search for his wife; I had heard Mr. Hillas singing the song mentioned by the prisoner six or seven days before that time; I believe it was composed by a man called ``Gundigy Bobby" the prisoner appeared to consider his life in danger in attempting to get his wife back; he did not seem to be in possession of his senses; he frequently appeared to forget that there was victuals before him, and jumped about as if he had suddenly lost his reason.

By the Court. - He did not appear to be intoxicated; his conduct was not like that of a man who had been drinking.

Mr. Stephen wished that the first witness might be called, as he had an important question to put to him which had escaped his memory in his cross-examination.

His Honor said that it was rather travelling out of the rule of evidence; he might, however, put it through the Court.

Mr. Wentworth observed that although extremely irregular, he had no objection to the question being put, the case being one which affected the life of an individual, he would not deprive him of the benefit of the question.

Purcell. - Was never punished, neither in this country nor any where else for perjury of prevarication, I was flogged for being of an obstinate temper, and not submitting to the orders of my master.

Henry Stuckey. - I reside at the Murrimbidgee, distant about twenty miles from where Mr. Hillas was shot, one of Mr. Thorn's men came to my house and informed me of the circumstance of Mr. Hillas's death, and wished me to go down, and I did so; I saw the deceased lying dead, the hut keeper and the prisoner's wife were present; I examined the body and found the ball had entered below the left breast, and had passed through the back, where it remained being perceivable under the skin; the body was washed, a grave was dug, and it was buried; I am not a medical man, but I have no doubt that the wound I saw was the cause of his death; there was no Inquest held on the body; I examined orally, the hut keeper and the prisoner's wife on the subject; the station is 60 or 70 miles from Yass, and 130 or 140 from Goulburn; I do not know the reason why no Inquest was held, I do not think it was because it was considered too far; it became necessary to inter the body as it was becoming offensive.

Cross-examined. - I had known the prisoner Collins abut two years, and always considered him a quiet harmless good sort of man; I have heard the deceased sing a song which held the prisoner up to ridicule as a cuckold.

This was the case for the prosecution.

The prisoner offered no defence, and the following witnesses were examined.

Reuben Hannam. - I have known the prisoner thirteen or fourteen years, he resided a considerable time near the Brick-yard at Woolloomoolloo, at which I was the Principal Overseer; I always considered him a peaceable, harmless man; I am acquainted with all his family, and have found them all to be quiet, peaceable persons; he is a native of the Colony.

John Preston. - I knew the decease Mr. Hillas, I lived at the prisoner's hut when deceased went up there; he complained of being ill while at Jobbin's station; the prisoner was stockkeeper there; a man called ``Red Jim," used to take the cattle away to a distant part, and then tell the prisoner that he had seen them going astray; he was frequently absent on this account, at which times Mrs. Collins slept with the deceased; his bed used to be put before the fire to make me think he had slept there; she told me on one occasion that if I reported to her husband anything I saw, that she would swear a rape against me.

Cross-examined. - I was not living there when deceased was shot, nor am I living there now.

This was the evidence for the defence.  His Honor in putting the case to the Jury expounded the law of murder; it was an established rule of law, that when one man killed another it constituted the crime of murder until the contrary be made to appear; it therefore lay on the accused to shew that it took place under such circumstance, as would reduce the offence to what the law designated manslaughter.  It was clear if they believed the evidence of Purcell, that James Hillas, the deceased, had been killed by the hand of the prisoner; had he therefore made out any such case of extenuation, as the law recognised as a reduction of the nature of the offence; the evidence was of a mixed nature, partly positive and partly circumstantial, and mainly dependent on the degree of legal provocation had been given as would extenuate or justify the crime; he felt bound to tell them that nothing had been adduced which could establish one or the other.  That the prisoner had received the greatest provocation which one could receive at the hands of another there was no doubt, but to what extent does it go?  Mrs. Collins had eloped and was living in a state of adultery with the deceased; the prisoner follows in five days afterwards and deliberately shoots the deceased.  The law making an allowance for the infirmity of the human mind has laid it down as a principle, that when a man finds his wife in the act of adulterous intercourse with another man; if he at once slay them it will not amount to murder, because the human passions are assumed to have triumphed for a time over reason, but if sufficient time had elapsed to allow the judgment to resume its empire the act becomes wilful murder, malice being implied; the mere fact of elopement will not do, no man can be the avenger of his own wrongs; revenge being the attribute alone of the Most High.

His Honor cited the law of Murder from a work of eminent authority.

The exclusive possession of a wife by an individual is derived from the usages of Society and cannot be considered as mere matter of law: and taking into consideration the frail characters of the chief portion of the females who arrived in the colony under sentence of transportation, if the law paced the lives of individuals who might be suspected of criminal intercourse with them, at the discretion of others under such circumstance, it would effectually go to take away that security which the law exercises over the lives of the community.  The nature of provocation, is clearly laid down in the law books, shewing that no words or acts of insult, will amount to that degree of extenuation of palliation which the law recognizes as reducing the crime of murder.  Where a man takes away the wife of another and further becomes the publisher of the disgrace to which he has subjected the individual by his act, it cannot be viewed but as the greatest provocation a man can receive, and is a painful circumstance is the history of the case, but although the provocation be great, he felt bound to tell them that it was not that degree of provocation which was recognized by law in mitigation of the offence.  It had been attempted to be shewn that the prisoner was not right in his mind about the time the murder took place; no doubt a man so circumstanced cannot beheld responsible for his acts, because he is deprived of that reasonable faculty which guides the mind in the choice of right from wrong, but there had been nothing to establish such an assumption in behalf of the prisoner; he was no doubt somewhat excited from the nature of his visit to the residence of the deceased then labouring under a strong sense of injury as shewn in some extravagant acts as detailed by the witness Ryan; but they did not offer  any evidence which they were warranted in receiving, as to his insanity.  He had gone over the evidence as minutely as possible, and had shewn them the law regarding the crime of Murder in the clearest manner he could, and he now rested the case in their hands.  The Jury retired for about half an hour, and returned a verdict of Guilty.

His Honor, after a short but impressive address passed the sentence of death on the prisoner, to be carried into effect on Monday next, (this day.)[3 ]

 

Notes

[1 ] See also Sydney Gazette, 7 August 1835.

[2 ] The reference is to the Female Factory, which was simultaneously a prison, a barracks for female convicts, a factory, and a marriage bureau.  See A. Salt, These Outcast Women: the Parramatta Female Factory 1821-1848, Hale and Iremonger, Sydney, 1984. On the management of the factory, see Historical Records of Australia, Series 1, Vol. 12, pp 524-528.

[3 ] The devastating result of this case should be contrasted with that in R. v. Varney, 1835, heard on the same day.

Published by the Division of Law, Macquarie University