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

R v Macdonald [1836] NSWSupC 29

murder - manslaughter

Supreme Court of New South Wales

Burton J., 6 May 1836

Source: Sydney Herald, 12 May 1836[ 1]

Friday, May 6. - Before Mr. Justice Burton and a Military Jury.

Ronald Macdonald was indicted for the wilful murder of Alexander Macdonald, at Bathurst, on the 18th January last.

It appeared on the evidence of Patrick Connell, a servant to George Cox, Esq., that he was travelling from the Nepean, and stopped at the Macdonalds' house to take refreshment; the deceased and the prisoner, although of the same name were not relations, and both lived in the same house; witness, who had spirits with him, gave the inmates of the house some liquor, and they all had dinner together; after dinner the deceased got on his horse and went out to gather some cattle into the stock-yard, and the prisoner followed him; and in the course of a few minutes, witness hearing a noise in the yard, went out, and saw the deceased lying dead; blood was flowing freely from his head, which had formed a pool close to the body, at which two dogs were lapping; witness returned to the house, and accused the prisoner - who had returned there before the witness - of the murder of the deceased, when the prisoner said - ``devil's cure to him, he got no more than he deserved, let him lie there and be damned;" witness, accompanied by another man, went to the stock-yard and brought the deceased to the house and laid him on a bed; the prisoner then asked witness's wife to wash the deceased (who was then alive), which she did; witness saw two sticks lying in the stock-yard, but could not identify the two produced as the same; on the following morning, prisoner said that he knew it would happen some time or other, as they had had had a quarrel for five years, and that he knew he must suffer for it; prisoner told witness that he had left the deceased once, and he wished he had remained away from him; but, by some fatality he had returned and lived with the deceased; on the following morning, when witness got up, he saw the prisoner walking backwards and forwards before the door; witness asked the prisoner how his mate (meaning the deceased) was, to which prisoner replied, ``he is right enough;" but on witness going in he found the deceased dead, and immediately acquainted the prisoner therewith, who answered - ``Yes, and I am dead too;" after the deed, a man named Fitzpatrick called at the house and offered to purchase a horse belonging to the prisoner, but he observed that he would not sell it, as, now, money was no use to him.

On his cross-examination, the witness stated the prisoner had told him that a quarrel had occurred about branding a beast, when prisoner had told the deceased that he (the prisoner) lived on the square, but that the deceased lived on the cross, and that the prisoner would not be concerned with him.

Several witnesses were called, who deposed to a quarrel having originated between the prisoner and the deceased, and that the deceased had struck the prisoner with a roping stick, when the prisoner struck the deceased in return with another stick, and repeated his blows on the head when deceased was on the ground.

John King, a material witness, swore that he arrived at Macdonald's farm on the day after the murder, and saw the deceased lying on a bed with two or three cuts on the forehead and one on the side of the head; prisoner told witness that the deceased had struck him with a roping pole, and that he had returned the blow with a stick which he had in his hand, and that they had struck one another indiscriminately until the deceased fell.

Mr. Lisombe, Coroner for Bathurst, stated that he got the account of the death of the deceased some days after the reported murder; that he tried to obtain the services of a medical man to proceed to the place where the murder was committed, but could not get one to go thither on account of the smallness of the fee, £2, which no medical gentlemen would take, as the distance was 70 odd miles from Bathurst; witness proceeded to the station and held an Inquest on the body; and had to raise the scalp from the head himself, to arrive at any satisfactory conclusion as to the cause of deceased's death; his examination of the deceased was no way satisfactory, as witness could not perceive any fracture on the skull, and supposed that the deceased's death had been occasioned by extravasated blood pressing on the brain from the blows; this, however, was merely a supposition as he could only have a private and not a professional opinion.

His Honor observed on the want of foresight in the Coroner, or as it afterwards appeared, the absence of power in the Coroner in getting surgical attendance in such cases; £2, or £3, or any other sum was insignificant when the ends of justice were in question; £30 ought to be given, if required, sooner than injustice should be done.

This was the case for the prosecution, and the prisoner made no defence, but called witnesses.

Mr. Charles Campbell knew the prisoner for fourteen years, and considered him to be a very quiet, sober, industrious, and honest man; witness had also known the deceased, who was a very passionate, intemperate man.

His Honor summed up at length, and the Jury retired for some time and returned into Court; acquitted the prisoner of the capital charge, and found a verdict of manslaughter.  7 years transportation.

 

Notes

[ 1] See also Australian, 13 May 1836; Sydney Gazette, 10 May 1836.

Published by the Division of Law, Macquarie University