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

R. v. Magee [1838] NSWSupC 13

assault - Port Phillip - Melbourne

Supreme Court of New South Wales

Burton J., 26 February 1838

Source: Sydney Herald, 5 March, 1838[ 1]

Monday - Before Judge Burton and a military jury.

David Magee was indicted for assaulting Henry Batman, at Melbourne, on the 12th August, with intent to shoot him. A second count charged a common assault.

The prosecutor, who is chief constable at Port Phillip, was going the round of the public-houses, about ten o'clock of the night of the day laid in the indictment, when a publican, named Moss, complained to him that he had a person in his house who would not leave; Batman ordered him out, and after some demur he went out, and when he had got out about forty or fifty yards he turned round and said, "I'll put a couple of bullets through some of you  ------  to night."  About a quarter of an hour afterwards Batman was going out of the door, when he saw the prisoner standing with a gun in his hand, which he levelled and said, "now I will give it to you"; Batman retreated into the public-house, and a soldier of the 80th regiment, named Price, went round to the prisoner who levelled the gun at him and threatened to shoot him, but the soldier rushed at him and laid hold of the piece and threw up the pan, but he was unable to say whether there was any priming.  Magee got away and went to his hut where he got another gun, and used threatening language, and was not apprehended until he fell asleep.

Mr Raymond, submitted that the case must fail as regarded the first count. His Honor said, that Mr. Raymond, was correct.  If the prisoner had pulled the trigger it would have been a capital offence, and put it to the jury to say whether they believed the prisoner did level the gun at the prosecutor; if they did they were to find him guilty of a common assault.  Guilty - To be imprisoned for twelve months and to find sureties to be of good behaviour for twelve months.

His Honor directed the Crown-Solicitor to write to the Governor, recommending a gratuity of £5 to be given to the soldier Price, as a reward for the manner in which he had acted.

 

Notes

[ 1]See also Sydney Gazette, 1 March 1838. This case was also recorded in Burton, Notes of Criminal Cases, vol. 34, State Records of New South Wales, 2/2434, p. 52.

Published by the Division of Law, Macquarie University