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

R. v. Dogherty [1838] NSWSupC 43

attempted murder, meaning of attempt - Liverpool

Supreme Court of New South Wales

Burton J., 2 May 1838

Source: Sydney Gazette, 5 May 1838[ 1]

Bridget Dogherty was indicted for attempting to administer a certain quantity of oil of vitriol to one Elizabeth Clegg, with intent to kill and murder her, at Liverpool, on the 14th December.

The Attorney-General briefly opened the case, and called -

Mr. G. Graham. - I reside in Liverpool; the prisoner has done the washing for the family for the last three years; Elizabeth Clegg is an orphan fatherless and motherless, and has been in my house the last five years; when I and Mrs. Graham leave home together we leave the house in charge of Elizabeth Clegg; some time in December last, a little girl of mine complained of a headache and lay on the bed; when she lay down she found a phial; I took out the cork and a little of the mixture it contained fell on the sofa cover, and upon asking Mr. Pritchard, the druggist, he told me that it was oil of vitriol; knowing that Elizath [sic] Clegg was the only person who had access to the room, I asked her about it, but she denied all knowledge of it; a short time before I left some spirits out which were not accounted for, but the matter had passed; when I questioned the girl closely she told me that she got it from Biddy Dogherty; after seeing Mr. Pritchard I sent a constable for the prisoner.

Cross-examined. - Clegg said she got the vitriol for bugs; I never put vitriol into my liquors; I never discovered that any had been put into it; I made a complaint of some run having been made away with.

Elizabeth Clegg. - I am fourteen years of age; I have been living with Mr. Graham a long time, ever since my father died; in December last, Bridget Dogherty gave me some oil of vitriol; she gave it to me to kill myself, because Mr. Graham was going to bring me before the Court because I did not give the money right that Mr. Graham was away one day; he said he would bring me to Court in November, he did not do it; Bridget Dogherty knew nothing about the money; I gave all the money to Mrs. Graham; I gave her fifteen shillings; half a gallon of rum and two gallons of wine were left out, which I sold all but a pint of run and half a gallon of wine; I gave the money to Mrs. Graham the next morning when she asked me for it; I told Biddy Dogherty that I was going to Court and did not want to go; she gave me the vitriol and told me she would show me how to make it the next time she came down; I don't know who paid for it; Bridget brought some clothes home while Mrs. Graham was out, she got no rum nor wine; the money I received I kept in a drawer in a room next the tap-room; the prisoner was not in that room; I was in charge of the house; I did not tell Biddy that I wanted to kill myself; she told me if it was found I was to say it was to kill bugs; I never spoke to Bridget Dogherty about killing myself.

Cross-examined. - The prisoner spoke about the vitriol first; I did not know what the vitriol was; Mr. Graham beat me, because I would not tell him where it came from; I did not like it because I did not know how; she said nothing about mixing it with the spirits and the wine; I did not tell the prisoner to get the vitriol for me in her own name; I did not know it was vitriol.

Mr. William Pritchard. - I am a druggist residing at Liverpool; the prisoner came to me for some oil of vitriol on the 14th of December last; she called for three-penny worth; I gave her an ounce; that is quite enough to kill any one; she told me she wanted it for Mrs. Allan with whom she then lived; about two hours afterwards, Mr. Graham shewed me what I believed to be the same bottle of vitriol; it was charged to Mrs. Allan's account.

Cross-examined. - I have known the prisoner for some years; she bears a good character as far as I recollect; she came to me one or two days before, and asked for vitriol, and went back to enquire what kind of vitriol she wanted; she said she wanted oil of vitriol.

Mr. Graham. - The prisoner had been at the house the day the vitriol was found, but not in the room where it was found; I have no reason to suppose the prisoner would do me any malicious injury.

Elizabeth Clegg. - The prisoner did not tell me what to do with the vitriol; I never asked her for it.

The prisoner's defence was that she was sent for the vitriol by the little girl, and was told to get it in somebody's name, because if it was for Mr. Graham, the druggist would not sell it.

Mr. a'Beckett submitted that the evidence of Mr. Pritchard as the prisoner got it in a false name was some corroboration of the girl's statement.

His Honor said that he thought even if the girl's statement was true, it did not amount to an attempt to administer; it appeared to him to be a parallel case with a person giving another a dagger, telling him that he would shew him how to use it.  If the dagger were used, the party giving it could be charged with being an accessary before the fact, but the man giving the dagger did not amount to an attempt at murder.

After a short conversation, His Honor said he would leave the case to the Jury.

The prisoner in the most correct manner protested that she was sent for the vitriol by the girl Clegy [sic]; and did not know what was wanted with it.

In putting the case to the Jury, the Judge said that he was of opinion, that the mere giving another a deleterious drug, did not amount to an attempt to administer.  Mr. Justice Willis happening to come into Court at the time, was consulted on the point by His Honor, and who also was of the same opinion; the Jury was therefore directed to acquit the prisoner.  Not Guilty.

 

Notes

[ 1]See also Australian, 4 May 1838; Sydney Herald, 7 May 1838. This case was also recorded in Burton, Notes of Criminal Cases, vol. 34, State Records of New South Wales, 2/2434, p. 115.

Published by the Division of Law, Macquarie University