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

R v Smith [1836] NSWSupC 71

murder - Marulan - capital punishment, first native born executed

Supreme Court of New South Wales

Dowling A.C.J., 11 November 1836

Source: Sydney Gazette, 12 November 1836[ 1]

MURDER.

Before the Chief Justice, and a Civil Jury.

James Smith stood indicted for the wilful murder of John Haydon, by cutting his throat with a razor, on the highway between Bungonia and Murulan, on the 22d of September last.  Mr. Therry briefly opened the case, and called

James O'Neale - I take the mail from Bungonia to Marulan; on the 22d September, was carrying it to the latter place; saw nothing then; on returning I found upon the road a body, thought it was asleep; when I came up to the man I saw a razor laying across his breast, and also a box key; saw the razor bloody on his breast, and his head fairly turned back; he was quite dead; I had passed the same way about an hour before, but then saw nothing; when I perceived the body, I looked and saw some sawyers working near the spot; I brought them to the body and left them in charge of it; I went then for the police at Bungonia; the body was dressed in a blue jacket and fustian trousers; the lining of his left hand pocket of trousers was turned; the breast of the clothes and the ground were all bloody; I think no man could cut his own throat in that manner, and then lay the razor and key in the mode they were upon his breast.

Cross-examined - Have travelled that road for two years alone, and never been stopt.

Samuel Maylor - Am a rough carpenter; I met O'Neale in September last; he came to the sawyer's hut; we had some tea, and then proceeded to the body; I went first to borrow a blanket; after that searched for a track; found a bloody track 200 yards across the bridge, when there I saw a black hat and handkerchief; at the back of a little bush close to the bridge a dog was lying down near the spot; I went back to the body, and stopt till Dr. Reid came; when Dr. Murphy and Mr. Futter examined the body, but could not recognize him them; the next day when the body was carried to a shepherd's hut, I recognized his face; I believe him to be John Haydon; had seen him often before at different parts and knew him well by person, but not by name until about three months before his death.

Cross-examined - The dog was laying down, but did not follow us; the dog was 200 yards from the body; to the best of my belief the body was that of John Haydon; never saw the dog before that time, nor ever saw it in presence of the prisoner; the dog was within 6 to 10 yards when we found the hat and handkerchief.

Richard Jawers - Am a Settler at Bong Bong; John Haydon lived with me eight years and better; left me about three months ago, had with him then in going towards the New Country a dog a little brindled called ``Turkey," but nothing like the dog I have seen to-day; never saw it before; I saw Haydon alive about six weeks ago; saw him dead at the Gaol of Parramarrago, Inverary, near Dr. Reid's about a month ago; am sure it was the body of Haydon.

James O'Neale, -- I saw the same dead body lying at the Inverary lock-up, and saw the last witness (Jawyers), going to recognise the body; spoke to him upon the subject.

Richard Jawers recalled. - When he left me the last time to go up the country, he was riding a black mare belonging to me; have seen the mare to-day, it is the same.

Cross-examined. - I believe I have had the mare for three years; have rode the mare many times; she was branded J; the mare knows me, and I can swear to her; I was once in trouble but Mr. Rowe cleared me out; did not take much trouble about my cattle; I saw the mare again coming down in the custody of the police; knew her directly.

John Foy. - Am a farmer living at Boro; deceased left my house on a Wednesday morning; saw him four days afterwards at Inverary gaol, he was then dead; it was the body of the man, whom I knew as Haydon, who left my house four days before; he had a dog with him, but which was then lost; when he left my place he expressed a determination to look for it; he had a razor and a key with him, also a dark handkerchief; he was about my age; I am about thirty eight; would know the razor, and could swear to the key; he wore such a handkerchief and hat as those now produced; I found them at Lynch's in Bungonia; the hat I bought myself, and can swear to it from the size.

Samuel Maylor. - The razor, key, and clothes now produced, appear to be the same as those I saw near the body.

McCauley. - Knew John Haydon; he called at my house on the 22nd September; he was riding a dark-brown mare; went with him to the store of Mr. McGillvray; he wanted change for a £1 note; Mr. McG. could not change it; it was No. 83 upon the Bungonia Bank (note produced); that is the note; prisoner was standing outside the store when we got there; I heard prisoner tell deceased he was going down to Sydney to stand his trial; they appeared to be acquainted; prisoner and deceased went away together; the things now produced I got from Maylor: I knew the jacket; had it from Mr. Hume; the jacket I had seen worn by Smith on that very morning, and several times before; had known prisoner upwards of four months; he was overseer to Mr. Kenny, of Lake George; could recognise the jacket by particular marks it bore; the murder was reported to me about three or four hours after I had seen prisoner and deceased; I recognised the body to be that of John Haydon; I went in search to Mr. Gray's, a publican at Sutton Forest, and got there a £1 note; I got this note at Gray's house; I picked it out from some others which were in Jervis's hand, who is a butler or waiter to Gray; I took up some of Mr. Barber's men first upon suspicion, but I am now convinced of their innocence; there were wounds on the head, which seemed to have been inflicted by a hammer; might have been done by the handle of a whip.

Cross-examined - Saw other Bungonia notes, but did not look for any other than the one I had seen in possession of deceased.

James Loughlin McGillivray - I am a store keeper at Bungonia; saw the prisoner on the 22d September there about 9 o'clock in the morning; he was alone; I supplied him two figs of tobacco, he was dressed in a fustian jacket and trousers, straw hat, and laced boots; that is the jacket; whilst he was filling his pipe, I observed a button drop from his shirt, and picked it up, and placed it in the adjoining room of my store; that is the button; I have every reason to believe that is the jacket, it corresponds in every way with that prisoner wore; he had a dog with him; it was the same I have seen this morning; about ten minutes after prisoner left; deceased came in with McCauley; he handed me a Bungonia note, and wished for change; returned it to him saying, I had not sufficient change; he and McCauley went out together, and saw nothing more of them; when prisoner was in the house I enquired if his dog was vicious; he replied, yes, and at nine months old would seize a man, or words to that effect.

Cross-examined - It appears an ordinary jacket but I had not seen many like it up there before; no person except prisoner and the other two came in at the time; directly they went out I picked up the button, say ten minutes after.

John Taylor - I am a carpenter at Bungonia; I saw prisoner at McGillivray's store on the 22d Sept.; whilst working at the bench saw two men with a brown mare going away; prisoner had on a white suit, but took no particular notice.

Andrew H. Hume - I am a grazier in Argyle; I received information of a murder being committed there on the 22d September; I saw the body in consequence of information; I went in search, and found the track of a horse, which I followed to a large tree, there saw a check shirt folded up, under the butt of the tree I found a white coatee [sic] or jacket, on the left arm was fresh blood; that is the jacket; I then called a constable, and delivered over the things to him; there was nothing in the pockets; the horse had come in an easterly direction from where the body was found, and from the bridge to where the dog was found; the horse had then turned to the southward about a rod, where the jacket was found; I then tracked the horse into the old road; it had a broad round flat hoof, but without shoes.

Jowers recalled - The horse was shod when deceased had the horse, but worn very thin.

Thomas Macauley recalled - The morning I saw deceased he told me that the mare was without shoes, and that being heavy in foal, he was going to lead her down; observed myself she was unshod.

Henry Jarvis. - I am a book-keeper, and sometimes wait at Mr. Gray's at Sutton Forest; about four o'clock in the afternoon prisoner came in as if from the stable the back way; he was in his shirt sleeves, with a straw hat and a pair of fustian trowsers; he came with a dark brown mare; he had some refreshment; he asked me if I had a coat to lend him, as he had got into a row at Major's Lockyer's the night before, and lost his jacket; I then left the bar for a short time, in the interim of which Mr. Gray returned home; when I went again into the bar he was trying on a jacket, but did not buy it; before that he gave me a £1 to pay his reckoning, which was 6s.; I gave him 14s in change; that is the note; it is of the Bungonia Bank; I gave it to my master; it was the only one taken that day; there was another one in the house but it had been taken some days before; McCauley came the same day and picked it out; there was a stain upon it then; that is the same stain; will swear it is the note I got from Smith; when he got his change he rode away without a jacket; the mare he rode was heavy in foal; have seen Smith several times at my master's house.

Cross examined. - I told McCauley, that Smith had paid me a Bungonia note.

John Riley. - I live at Campbelltown; my father lives close by; on the 24th of September I was at his house; in coming from his place I met the prisoner leading a mare; did not notice how he was dressed; knowing him before, I spoke to, and asked him if that was the mare he had got the horse he had taken up to the new country; he said it was one he had got in exchange for the horse I alluded to; it was a black mare in foal; he went to my father's and had dinner, and when done he proceeded to his father's house about a mile and a half from there; I saw the mare afterwards, about the 8th of October, at Campbelltown Court House; it was the same mare Smith had at my father's.

John McAllister - Am chief constable at Campbelltown; had an information against prisoner in October last, proceeded to his father's house, and found a black mare; brought it to Campbelltown to the house of prisoner's sister; Riley afterwards saw the mare and identified it as being the same prisoner rode to his fathers; the mare is now down in Sydney, in Driver's stalls.

Richard Jowers - The mare in Driver's stable is mine.

John Dean - Am a Sergeant in the Mounted Police; apprehended prisoner near Campbelltown, concealed in the bush at the back of the church; I had a warrant from Captain Allman, upon suspicion he was in the bush; on passing along I heard a stick crack, went forward and seeing the prisoner ordered him to come out; he asked what we wanted; I said come out or I would shoot him; he came out; and in going down the road told her not to fret as it could not be helped; I lodged him then in Gaol; a mare taken at prisoner's father's house; I brought it down this morning; Jowers has seen the mare, and claims it as being his property.

Cross-examined - When his sister saw him; he was in my custody, and could not but go with me.

Francis Murphy - Am a Surgeon; saw the body of Haydon on the 22d September, lying near Bungonia, by the road side; the throat had been cut by a sharp instrument; all the vessels around the neck had been cut through to the bone; the vertebrae was partly cut; it was quite impossible had he minded for him to have done it himself; there was a wound below the left eye, which had broken the bone; another upon the left ear; these wounds were severe, but not sufficient to cause death; the body was then warm, and the wounds fresh; a razor was lying upon his breast with which I think the wound on the neck must have been inflicted.

Cross-examined - He might have had the wounds inflicted by the claw end of a hammer, and then afterwards had his throat cut.  This closed the case for the Crown.  Prisoner said nothing in his defence, but called three or four witnesses to character.  They could not speak with any degree of particularity, but had generally considered him an honest hardworking man.

The Chief Justice then went minutely though the whole of the evidence, commenting upon each part for and against as he went along, impressing strongly upon them at the same time that the evidence was chiefly circumstantial, yet in the absence of all explanatory testimony, if they believed the prisoner to be guilty, they were bound in the virtue of their oaths, to say so by their verdict.  The Jury then retired, after being absent about half an hour, returned with a verdict of -  Guilty.

Mr. Therry then prayed for judgment.  Proclamation having been made, prisoner was asked if he had anything to say why sentence of death; according to law, should not be passed upon him.  He merely asserted his innocence.

The Chief Justice then proceeded to pass sentence, in doing which he observed that he most heartily wished that the declaration made by the prisoner was true, but he (prisoner) could have no expectation that it could be believed, his own conscience must tell him that he was guilty, a Jury of his country had then found him guilty, and he the (Judge) therefore was not at liberty to think that he was innocent.  The whole course of the evidence must have convinced every one that he was guilty.  Nothing but the quickness, intelligence, and activity of the Magistrates, could have so clearly developed the various minute circumstances connected with the case.  He deeply lamented that prisoner was a native, and the first who had been brought to such an ignominious end not only for prisoner's sake, but for the credit of the Colony, did he lament it.  His father, mother, and relations must all deeply feel the disgrace thus brought upon him (the prisoner's) self.  What could have been his object so to attack a poor prisoner of the crown, without cause - without offence? except merely for the trifle of money deceased had upon him.  He entreated the prisoner if he had any particle of religion within his breast, however dormant it might have been, to call it into immediate exercise, and make the best use of the short time which was then allotted to him.  He would not dwell any longer on his unhappy case, but proceed to pass the sentence of the law.  He then passed sentence of death in the usual form, ordering him to be executed on Monday morning and the body after death to be delivered over to the surgeons for dissection.  The prisoner heard the Judge's address with much composure, except that part which alluded to his parents.  He was then removed from the dock.  The Court was crowded during the whole of the trial.

 

Execution, 14 November 1836

Source: Sydney Gazette, 15 November 1836

 

Execution. - Yesterday the utmost penalty of the law was carried into effect upon William Smith, convicted on Friday last of a wilful and atrocious murder.  Smith was a native of the colony, about thirty years of age, of a very strong and muscular frame.  He was attended in his last moments by the Rev. Mr. M'Encroe, being of the Catholic persuasion.  He made no public statement as to his guilt, and every arrangement being completed, the drop fell, and he was launched into eternity.  His struggles, before animation ceased, were long and violent.

 

Notes

[ 1] See also Australian, 15 November 1836; Sydney Herald, 17 November 1836.  On 5 August 1836, James Smith, possibly the same man, was found not guilty of the murder of James Whaling: see Burton, Notes of Criminal Cases, vol. 26, State Records of New South Wales, 2/2426, p. 62.

Published by the Division of Law, Macquarie University