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

R. v. Jones [1838] NSWSupC 80

indictment, error in - autrefois acquit - murder - manslaughter - South Creek

Supreme Court of New South Wales

Dowling C.J., 4 August 1838

Source: Sydney Gazette, 7 August 1838[ 1]

(Before the Chief Justice, and a Military Jury.)

John Jones, late of Liverpool, labourer, stood indicted for the wilful murder of Thomas Day, at the South Creek road, by beating him over the head with a piece of wood, on the 3rd of June, and causing divers wounds and bruises whereof he lingered until the 16th June, and then died.  The Attorney-General, in stating the case to the Jury, observed that the quarrel which led to the murder of the deceased man (Day) originated through that bane of society - rum.  The prisoner, deceased, and several other convicts had assembled at the house of a notorious sly-grog seller named Stephen Edwards, and after leaving, the circumstances which led to the present enquiry occurred.  The Chief Justice here interrupted the Attorney-General, by telling him that the indictment was defective, and handed it over to him for perusal.  The Attorney-General read it over, and acknowledged it to be so, and begged to have it quashed.  His Honor then discharged the Jury under that indictment, which was forthwith amended.  The error consisted in the finding of the Attorney-General (in the capacity of the Grand Jury), that the prisoner Jones did kill and murder, omitting the name of the deceased person.  Mr. Foster, who appeared on behalf of the prisoner, submitted the information could not be quashed after the jury had been sworn in, and the trial commenced.  The Attorney-General contended that it did not matter whether the trial had commenced or not, but it was competent that the information should be quashed if it was of such a nature that the jury could not found a verdict on it.  The information charged the prisoner that he did kill and murder, but did not state whom.  His Honor observed it was evident no jury could found a verdict on that information; but he would reserve the point, if Mr. Foster thought it important.  The indictment having been amended, and the jury again sworn in, the prisoner was arraigned, and the case proceeded.  The first witness called was

Bernard Reynolds, who deposed that, on the 3rd day of June last, he was an assigned servant to the Male Orphan School, at Liverpool as also the prisoner and the deceased.  On that day twelve or thirteen assigned servants assembled at the house of a man named Stevie, a free man, living at the side of the road, near Mr. Bull's.  They had some grog there, for which witness paid the man's wife with money he collected from the rest of the party.  Witness had got grog there twice before.  Day, the deceased, was a bullock-driver to the Orphan School, and the prisoner was baker.  On that evening a row took place, after leaving Stevie's, on the road near Mr. Bull's.  The party had been at the grog-house before that, in the afternoon; they returned home shortly after sun-down, and returned again in the evening - the deceased, the prisoner, and several others were there - Michael Glynn, James Dawson, and John Brown, all servants of the establishment.  The party remained drinking until about eleven o'clock, when they left.  They had five bottles of rum between them.  On the way home, when near Mr. Bull's the prisoner, deceased, witness, and Glynn were walking together - the prisoner and the deceased man (Day) were first; some words arose between them respecting a man named Potter, another assigned servant of the establishment; the deceased said Potter was a -- dog, and he would pay him off for jacketing him to his master; the prisoner replied Potter was as good a man as any there, and he was not there to answer for himself: the deceased then said to Glynn ``you are as big a dog as he is," and struck the prisoner with his fist in the eye; the two then closed, and had some falls together.  Witness was standing behind, and did not at first interfere, but when he saw the deceased had the prisoner on the ground, he went up to pull him off; the deceased then put his head under witness's legs, and threw him down, and while he was on the ground he kicked him in the groin.  Witness laid on the man, and could not move; he was not drunk, but was sensible, they had all been drinking, the deceased seemed most drunk.  While witness continued lying on the man the rest went away, except the deceased, who stood by talking to him.  While he was there two of Mr. Bull's assigned servants came up, and asked what was the matter?  Witness told them he had been kicked by the deceased; the deceased was standing there, and said if he had done so he was sorry for it.  After witness had been lying on the ground bout ten minutes or a quarter of an hour, the prisoner Dawson and Glynn returned, and the latter asked them (witness and the deceased) to return, but witness said he was not able.  At this moment while he (Reynolds) was lying on the broad of his back he hoard a scuffle, and some one remarked that Day was killed; witness was on the ground, and could not see what occurred, and he could not get up on account of the kick.  After a short time he scrambled on his side, and saw the deceased lying on his side, and the prisoner standing close by; he said nothing; some of the others said it was not the hurt, but the effects of the drink that effected the deceased; one of them (Campion) said, the prisoner had struck the deceased; witness did not notice what reply was made; Campion also said something about a stick; witness did not see any near; Glynn observed it was a treacherous blow, but witness was not certain whether he alluded to that blow, or the one that had been struck by the deceased previously.  The deceased could not speak at the time, but after a time he partly recovered, and got up and walked away; witness and the prisoner assisted him as far as they could.  The deceased wished to be laid down, ad recognized the prisoner, and made a rush at him.  The deceased was left on the road.

John Bowley, assigned to Mr. Bull, deposed, that on the evening in question he had been drinking at the house of Stephen Edwards; the prisoner, the deceased, and several others were there.  No quarrel occurred in the house, which they left between ten and eleven.  A quarrel occurred after witness had parted from the rest.  When witness afterwards came up, Reynolds was on the ground, and the deceased (Day) standing near; the prisoner and Glynn came up, Glynn asked him to go home; Reynolds said he was not able.  At that moment the prisoner struck Day with a stick; it was a sapling (the stick was produced and identified; the sapling so called was either a young gum tree, or a limb of a large one; it was about six feet long, and at the thick extremity about nine or ten inches in circumference).  Witness did not see the stick in the prisoner's hand until the deceased was on the ground; witness' mate called out to him to catch the man who killed him; the prisoner ran away with the stick which he dropped a few paces off; he (Bowley) ran after him, and brought him back, and picked up the stick, which he afterwards threw over a fence.  Campion was talking to Day at the time he was struck.  The prisoner said nothing when he was brought back.  The deceased continued lying on the ground about half an hour; he was taken up by Reynolds and the prisoner, and they assisted him to walk, which he was not well able to do.

Matthew Campion, assigned to Mr. Bull stated, that he had been at Edwards house that evening, but was not present when the quarrel commenced, witness saw the blow struck; when witness went down to the road the deceased was standing there, and showed witness some witness some marks on his shoulders where he had been bitten; Jones was not there then; he came up in about a quarter of an hour with Glynn; Glynn asked Reynolds to come home; no words or quarrel occurred between Jones and Day at the time, but the prisoner took a stick from behind him, and struck the deceased on the side of his head, and knocked him down; Jones said nothing before he struck the blow; the deceased could not see Jones coming up (witness identified the stick); witness called out to Bowley to hold the murderer; had had three glasses of rum.

John Bull proved the finding the deceased in the road about eight o'clock the next morning; his attention was attracted to him by the barking of his dogs; his head exhibited several wounds, and appeared in a bad state; he was cold and shivering, and was insensible.

Dr. Hill, of the Liverpool Hospital, deposed, that the deceased was received into the Hospital on the 4th of June, and lingered until the 16th, when he died.  There was a contused wound on the right side of the head, and a more severe contusion on the left.  On opening the head after death, witness discovered a large quantity of extravasated blood on the brain caused by exterior violence, in his opinion caused by the blow of a blunt instrument, similar to the stick produced; the deceased remained in a state of insensibility while in the Hospital.

The prisoner said nothing in defence, but called Michael Glynn, who deposed that the prisoner did not walk above twenty yards after he had been struck by the deceased before he returned, when the deceased again attempted to strike Jones, but the latter avoided the blow, and he fell on the ground, and that Jones did not strike Day, who he said was a very violent man in liquor.

James Dawson was called; he had seen no blow struck, but he saw the prisoner standing near with the stick in his hand after Day was on the ground; he did not think the prisoner could have been away more than a minute or so before he returned.

Mr. Sadler, of the Male Orphan School, and Mr. Weston, the Governor of Carters' Barracks, were called to give the prisoner a character.  They described him as a man not violent when under the influence of drink, but argumentative.

His Honor in charging the jury directed them to consider chiefly whether the prisoner had had sufficient time after he had been struck by the deceased to deliberate before he returned and struck the blow (if they were satisfied that he had done so), or whether he was still under excited feelings.  The jury found him guilty of ``Manslaughter." - Remanded.


Dowling C.J., 18 August 1838

Source: Australian, 21 August 1838[ 2]


John Jones, indicted for murder, and found guilty of manslaughter, was placed at the bar.  His Honor in passing sentence, remarked that the jury had, fortunately for him, taking a very merciful view of the prisoner's case, which was worked with a malignity of heart, and a desire for blood, which would have warranted them in finding him guilty of murder.  There had been proved, a deliberation in the manner of his committing the act, which shewed that his mind had been bent on shedding blood, but as the jury had returned a verdict of manslaughter, his life would be spared, but only on condition of his spending the remainder of his life in irons at Norfolk Island.  Sentenced to be transported for life to Norfolk Island.



[ 1]See also Australian, 7 August 1838; Sydney Herald, 6 August 1838; Dowling, Proceedings of the Supreme Court, Vol. 152, State Records of New South Wales, 2/3337, p. 121.

[ 2]See also Sydney Gazette, 21 August 1838.

Published by the Division of Law, Macquarie University