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

R. v. Tufts [1838] NSWSupC 6

murder - Turee - sheep shearing - convict service - shearers, payment in liquor

Supreme Court of New South Wales

Burton J., 14 February 1838

Source: Sydney Gazette, 22 February 1838[ 1]

(Before Mr. Justice Burton and a Military Jury.)

Edward Tufts was indicted for the wilful murder of John Jones, by stabbing him in the groin with a pair of sheep-shears, at Turee, on the 21st October.

James Burgess, overseer to the late Mr. Jones at Turee, in the county of Bligh. - Mr. Jones died on the 27th October about 3 o'clock; I recollect the Saturday night before his death; we had been sheep-washing, Mr. Jones attended it; Mr. Jones, Tufts, and me came home together; Tufts was a ticket-of-leave man employed by Mr. Jones, to whom, I believe, he had been assigned; Mr. Jones told me to give the men a glass of grop each as they had worked hard and washed upwards of eight hundred wethers; I gave them a dram glass full of rum each; some shepherds came in about eight o'clock; Jones gave every shepherd who reared a lamb for every ewe £5 as a premium; Thurston, one of the shepherds, received £5, and craved very hard for some spirits; Mrs Jones said she could not give it as she had not enough for the sheep-shearing; Mr. Jones said she had better give a little, and I believe Thurston got some spirits, but I do not know how much; I afterwards saw Thurston with some spirits in a pint pot; William Lilly, another shepherd, was called in and received £3 10s.; he went out and I afterwards went into the kitchen; I then went up to Tuft's hut; Lilly and me had a quarrel; Mr. Jones heard the noise and came up and told me it was no place for me, and I went to my own room in a place joining the house; I had been asleep a little while when I heard Tufts calling Mr. Jones a robber and other names; Tufts was not tipsy; I got up, put on my clothes, and went to my door, and heard him call him all the thieves, robbers, and vagabonds he could set his tongue to, and said he had robbed him of four hundred sheep; John Wilson, the blacksmith, came by, and I said if Mr. Jones will put up with this he will put up with anything, the blacksmith went to Tufts' door and Tufts asked him if he was going to take a pill for Jones; the blacksmith went round to the left and I went to my master and said if you put up with this you will put up with anything, and Mr. Jones said that he did not mean to put up with it and would settle with him another day; Mr. Jones came out and sung out to Tufts, I will settle with you another day; Tufts came from his hut and appeared to walk to the left, and then walked past me towards Jones who was on my right; I then heard Jones say, Tufts you have murdered me, oh Ann Jones I am a murdered man; I cannot say how near he went to Mr. Jones, I did not see him nearer than two rods because there was a kind of parting; I saw Tufts within about half a rod when he went round a corner; when Jones said he was murdered I could not see him; Tufts made a run towards the blacksmiths' shop followed by Jones, who went a step or two and then turned to his own door; I then saw Jones throw the shears down saying those are the shears that murdered me; when Tufts passed me I did not see any thing in his hand; these are the shears, when I saw them there was blood near the point and the point was bent as it is now; Tufts went towards his own hut and said, I have settled the old sweep at last, he repeated it several times; this was about two minutes after he came from Mr. Jones; when I first saw Tufts after Mr. Jones called out, he was running from the house; Mr. Jones was wounded in the side of his groin and his thigh; a doctor was sent for; Mr. Howell came; this was on Saturday, the 21st October, and Mr. Jones died on the following Friday; a few minutes after my master was in the room I apprehended Tufts, he made no resistance; when he was lying on the floor in the kitchen, he said he was very sorry that the old man must die but he knew the shears touched the bone; these are the trousers the deceaed [sic] had on; I saw these holes they correspond with the place where the wounds were; (the trousers were completely saturated with blood) the deceased never walked nor got out of his bed afterwards.

Cross-examined - I was drinking no where that night; I only took one glass of spirits; I was not drinking, I did not swear I was; it was in the prisoner's hut I took the glass of rum; I was not drunk before I went to bed; I do not know how many bottles of rum were drunk; I only saw some in a pint pot; I never heard the prisoner make any threats towards Mr. Jones; the prisoner was expecting that the deceased would give him some sheep after shearing, and he was depending upon his signing a petition for his emancipation in Oct he had mentioned it that day; the deceased was a passionate man at times; the prisoner's shirt was not torn that night that I knew of, but I lent him a clean shirt to go to Court in; Tufts kept a woman, who asked me to lend him a shirt; I have drawn rum from Mrs. Jones in part of my wages; it was the custom to supply the free servants with rum, the convict servants could not get it; the free servants could only get a small supply; I never knew the free servants sell it to the convicts; I do not recollect that the prisoner paid a pound for a bottle of rum for him and me to take to Tonga; the woman that lived with the prisoner was a free woman; there was a woman living with Shepherd at a station about six miles off.

By the Court - These women were not married then, one of them is married since; they were both fond of drink, the prisoner's woman particularly, she was always craving for rum; a man named David Gill used to bring rum on to the farm sometimes, I do not know whether he had a license; there was a place about three or four miles off where rum could be got; whilst the men were shearing and washing they had had three bottles between eleven of them; the prisoner had some of it; it was served out by me at four different times; they were in the water about five hours, and had one glass going in, two while they were in, and one coming out; I did not go into the water but had the same rum as they had; I do not know whether the prisoner's woman was off the farm that day; I saw no strange men there that night.

John Wilson - I was blacksmith at Turee; I was assigned to Mr. Jones; I was at the sheep-washing; after coming home I went to the men's hut, and when coming up again at night about nine o'clock I heard a voice; the sheepwashing was over about three o'clock, I had a little to drink after I got home, I dare say about three glasses, which were given to me by a free man named Thornton; I heard the prisoner having some words with my master; I went to the prisoner's hut and he told me to go away to my hut; Mr. Jones came up and asked me what I was doing; I said I knew I had no business there and went towards the overseer's hut; about an hour after this I heard some high words, the prisoner was against his own hut; I heard the prisoner saying something about some sheep; I was about six yards from them; I was not tipsy; they were talking angrily, the prisoner called my master names; I do not recollect what names; on my oath I do not know what names; the master was walking in front of his own house, I did not hear him say anything; the prisoner went into the hut and came out again immediately; I do not know whether he had any thing on his head; he went as if going towards the back of the building, and then turned short and came to the house, he passed me within two or three yards, and almost directly I heard Mr. Jones cry out that he was murdered, and I saw the prisoner run away; I ran towards my master, who said, catch him, and I went a few yards after the prisoner and then turned back to my master who had got into his bedroom and was down on his hands and knees.

Cross-examined - I had three glasses of rum that night; I was not drunk, and did not swear that I was; I did not see any body drunk; I drank the rum in the kitchen; the deceased was a violent, passionate man sometimes; the deceased had not drank anything that night that I know of; rum was sold on the farm; when it was there any of the men could get it; I don't suppose they could get all they liked; I have bought rum, a pint was the most I could get at one time; I have no doubt that I have got more than one pint in one day; I do not recollect who paid for it; I got it from Miss Christie, and I suppose I must have paid her for it; I swear I paid for none at that last sheep shearing; I do not know that Mrs. Jones sent for ten gallons for sale unbeknown to Mr. Jones; I have fetched rum to the blacksmith's shop for men not belonging to the establishment, but it is a long time ago; I did not see the prisoner's shirt torn that night.

Alexander Busby, Esq., J. P. - I took this deposition from the late Mr. Jones on the 23d of October; the prisoner was present, charged with stabbing his master; it was taken at Turee, the residence of Mr. Jones; it was taken down by me as Mr. Jones gave it, read over to him, and signed by him in my presence; the prisoner asked Mr. Jones if he thought he entertained any malice towards him, and Mr. Jones replied that from the expressions used by the prisoner he thought he had.

Cross-examined - I think that Burgess admitted before me he had been drinking, Wilson did the same, by my impression is that they said they were sober enough to know what had occurred; Mr. Jones was reputed to be a violent man; it was reported that rum was sold in the establishment; the deceased's application for assigned servants was refused at the September session, the assessors did not consider him a proper person to have servants; I did not tell the prisoner I considered him the victim of the illegal sale of spirits.

By the Court. - I am a sheep-holder; as a matter of opinion I should say it is not necessary to issue spirits to men at the sheep shearing, but it is generally done; as regards the health of the men, my opinion is that it is not necessary; it may be considered necessary as it is the custom; I believe there are not wanting instances of sheep being washed without; Mr. Charles Blaxland, it is reported, has done so; I have done so myself when I happened to be without spirits, -- the ration of tea and sugar was increased as a substitute; I believe, to a certain extent, it is the custom to supply servants with spirit; there is a great thirst among free labourers at that season of the year for spirits, and if they are not liberally supplied they will not work, and persons who are dependent on them are obliged to comply with them; about three years ago I hired free men, and the uproar on the farm in consequence was great; their demands were unreasonable, but there was no refusing them, and the whole establishment was in confusion; I have managed to do without them since; I think the practice of supplying servants with spirits for pay does prevail at that season of the year -- I mean as remuneration for extra labour, not for money, but I have heard for money; I should say a free man would not be satisfied with a pint of spirits per day; I found it necessary to leave off supplying spirits.

By the Attorney-General - My opinions are founded on extensive experience among large establishments; I have about forty convict servants, if they were taken from me, I should be obliged to hire free men and comply with their demands; in cases of this kind I prefer convict to free labour; I have heard that free men refuse to hire where spirits are not allowed.

Burgess recalled, and examined by the prisoner - I heard that some time before this Mr. Jones drank a glass of sugar-of-lead water instead of rum; that day Mr. Jones said he was much better than he had been for years, in consequence of leaving off drinking; Mr. Jones mentioned making the mistake at the water hole.

By the jury - Mr. Jones was a very kind master. 

Mr. Mark Howell - I am a surgeon, and took my degree at Lincoln's Inn, in 1833; this is the only document I have with me; (a certificate of having attended Bartholemew's Hospital) I have not been drinking to-day; I will not swear to it; I drank a little water when I washed my teeth; I saw Mr. Jones on the morning of the 22nd of October about one o'clock; he was wounded in the groin and thigh; the wound in the groin was about give inches in length; there was about a yard of intestines protruding; Mr. Jones said, doctor, I am no more; the artery was wounded; I tied the artery up; the wound was the most dangerous one I ever saw; I dressed it ad put him to bed; he was in great pain when I first came, but he obtained relief by the dressing; I remained there until Wednesday when he died; I was in the house all the time; after death I examined the body; the intestines were very much wounded; there was a wound in the groin an inch and a half in extent, and in the thigh about an inch; the body was perfectly healthy in all respect except mortification in the intestines produced by external causes; the wound in the thigh and groin were the first cause; the wounds that I saw might be produced by these sheep shears.

Cross-examined - I heard Mr. Jones drank some sugar of lead water; that had nothing to do with producing the mortification.

The witness having given his evidence in a very flippant, disrespectful, vulgar, incoherent manner, the Judge called

Mr. Busby, who said the witness appears to me to be intoxicated; he is generally remarkably respectful; I never saw him in this way before.

The Attorney General said, that under these circumstances he would recall

Mr. Busby - I saw all the symptoms of a very severe wound in Mr. Jones's groin; the dressing was removed at Mr. Jones's request, and he then pointed the wounds out to me; he said he was suffering greatly, and I should think he must be; there was a great enlargement and discoloration of the parts; Mr. Jones spoke of his death as being to take place immediately; I expected it; I believe this to be prisoner's hand-writing; it was given to me either by Mr. or Mrs. Jones.  (Letter read from the prisoner to the deceased before his death, requesting him to be as lenient as possible.)

His Honor ordered Mr. Howell to be confined in Sydney Gaol six months, for giving evidence in a state of intoxication.

This was the case for the crown.  The prisoner's defence was - That he had taken so much rum that he could not recollect what had happened; he bore no malice to the deceased, and in fact his death was a great injury to him.

His Honor said that in all cases of murder it is necessary to prove, firstly, that the death of the person said to have been murdered has taken place; secondly, that he died by the means laid in the information; thirdly, that he died by the hands of the prisoner, and fourthly, that the prisoner did it of malice.  In consequence of the manner in which Mr. Howell had behaved, the Jury must throw his evidence out of their consideration, and must say whether, from the facts sworn to by the other witnesses, they believed his death was caused by the means stated in the information.  It had been proved that he was in good health before he was stabbed, and he took to his bed immediately after and did not get up again, and died in a few days.  If the Jury belived [sic] that the act was committed under the circumstances stated in evidence, he was bound to tell them that in law it was a case of murder.  The prisoner had stated that he had no malice towards the deceased, but if a case of homicide was proved the law presumed malice, unless circumstances arose in the course of the case to show that it was a less crime, and in looking through this case he did not see any such circumstances; on the contrary, the deadly instrument with which the deed was committed, and the part of the body in which the wound was inflicted, were facts from which the law presumed malice.  As for the prisoner's being drunk, if persons voluntarily get intoxicated they must answer for what they do when they get sober.

The Jury retired about a quarter of an hour, and returned a verdict of Guilty.  Remanded.



[ 1]This case was also recorded in Burton, Notes of Criminal Cases, vol. 34, State Records of New South Wales, 2/2434, p. 136, Burton noting that the defendant was a ticket of leave holder at the time of the trial.

In 1838, the British government announced its intention to end of the system of assigning convicts to work for private masters.  See Glenelg to Gipps, 30 June 1838, Historical Records of Australia, Series 1, Vol. 19, 461-462.  In the meantime, Governor Gipps was placing it under tighter restrictions, including the abolition of assignments of males in towns and as domestic servants: Gipps to Glenelg, 8 October 1838, Historical Records of Australia, Series 1, Vol. 19, 603-604, and see 616, 679 and 773 on the British government's approval of these restrictions.

Published by the Division of Law, Macquarie University