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

R. v. Power [1840] NSWSupC 41

attempted murder, poisoning, children, criminal defendants, Orphan School, children, age of criminal capacity

Supreme Court of New South Wales

Stephen J., 4 August 1840

Source: Sydney Herald, 7 August 1840[1]

Peter Power, a boy of thirteen years of age, a native of Infinnan, country of Roscommon, Ireland, who arrived in the Colony with his widow mother Bridget Power, per Crusader, about the beginning of the present year, was indicted for having on the 27th June last; attempted to administer a quantity of arsenic to Mr. George Commings, the chemist and druggist of King-street, with intent to murder him.  From the evidence for the prosecution, it appeared that the prisoner had been apprenticed.  Mr. Commings in the beginning of last June; that after having been in his employ a short time he left his service, and was beaten for it, and that afterwards, in consequence of information which Mr. Commings received, he considered it his duty to ask the prisoner about a syringe, that had been taken from the shop, which the prisoner denied all knowledge of, but on searching his box, the syringe in question was found there, together with a quantity of tea and sugar; for the possession of which the prisoner accounted by saying that he had received the tea and sugar from a woman in the Orphan School, Parramatta, for the purpose of being given to some man confined in Hyde Park Barracks.  On finding these things in the prisoner's box Mr. Commings told his servant to keep the prisoner on the premises, and, at the same time told him that as he (the prosecutor) was going to Parramatta that evening, he would lay the prisoner's conduct before his mother.  Before Mr. Commings returned from Parramatta the prisoner absconded, and on the morning of the 26th of June, was returned to the service of his mother, who had come from the Orphan School with him, and when she returned him to his employer, she requested and obtained (according to her statement) a promise that he should not be sent to the watch-house; at the same time she requested the prosecutor to punish him in any other way he thought proper, and which was agreed on, but that after the mother had returned to Parramatta, Mr. Commings sent him to the watch-house on a charge of absconding, and on the following morning, the 29th June, he was reprimanded by Captain Innes and at his master's request returned to service.  On returning to Mr. Commings residence, he went into the kitchen and warmed himself, and about dinner time was set to work to clean the show bottles on the shelves in the shop.  His conduct it appeared was narrowly watched by the cook, whom he had repeatedly offended by grinning at him and otherwise giving him annoyance; about five o'clock on the evening of the 27th June, the prisoner went again from the shop into the kitchen, when Davis, the cook already referred to, fearing the prisoner had again run away by the back door of the kitchen, went from the shop through the parlour into the kitchen, where he saw him at the fire with the lid of the kettle in one hand, and a white paper in the other, from which he was sprinkling something on the fire and also putting it into the kettle.  On perceiving the cook, the prisoner immediately threw the paper and its contents into the fire and placed the lid on the kettle; the cook immediately went up to him and asked what he was doing, when the prisoner said he had only been putting some lime on the fire; not satisfied with this answer the cook took off the lid of the kettle, and seeing some white substance floating on the top of the water, he took the kettle from the fire and carried it to Mr. Coming's shopman and told him what he had seen; the shopman then took the prisoner and gave him a beating, when he said that he had been putting something into the kettle that he had taken from one of the bottles on the shop shelves, and on being interrogated as to which bottle he had taken it from, he pointed out the bottle labelled as containing Oxide of Zinc, a deadly poison.  A short time after Mr. Commings, who had been out on business, returned to the shop; he was informed of the affair and the kettle with its contents shown him, in which he observed a white substance floating on the top of the water.  This he skimmed off with a tea spoon and placed in a graduated measure glass, and was of opinion from its sparkling appearance that it was not Oxide of Zinc but Arsenic - he then poured off the water, and found a sediment in the bottom of the kettle, which he collected as well as he could, and placed in the graduated glass with the white substance that he had collected by skimming the top of the water in the kettle; he then went to Dr. Nicholson, who tested a small portion of the contents of the graduated glass, by lifting it on the point of a pen-knife and holding it in the flame of a candle, when the garlic smell enabled him to conclude that it was Arsenic.  He afterwards returned the glass to Mr. Commings, and appointed a meeting to take place at the School of Arts Theatre on the following day, in order to analize[sic] the matter in such a way as to ascertain beyond doubt what was the real character of the substance.  As the next day was Sunday the examination of the contents of he graduated glass did not take place until Monday, but in the interim Mr. Commings and another medical friend took a portion of the matter, and having analized it as well as their apparatus would enable them, they found that it showed all the characteristics of arsenic, which had been described by Professor Chrisistan in his work on Poisons.  On the Monday, Dr. Nicholson examined the remainder at the Theatre of the School of Arts, and found that after testing it in every way, excepting by subliming it and reducing it to a metallic state, the contents was arsenic.  The reason why it had not been submitted to this test was that it was a tedious process, as considerable time would be required in order to evaporate the water, independent of the operations that would have been necessary after the flux had been added - besides which Dr. Nicholson was satisfied that the various processes of testing had sufficiently proved the substance to be arsenic, he also informed the court that it was not in his power to determine by experiment how much of the poison had been originally put into the kettle, as if the water was warm it would dissolve about a seventieth part of its own weight of arsenic, but if cold, it would not dissolve more than about a three-hundreth part of its own weight of the poison: arsenic being much more soluble in warm than in cold water.  Besides, after the water had dissolved all that it could, a considerable portion of the poison would be suspended in the water by the motion occasioned by the action of the heat, and when the water was poured off would be, although undissolved, carried off by the water.  As it was there could not be less than one hundred and twenty grains of the poison in the graduated glass measure, of which he had analized the contents - In his opinion from one to two grains of arsenic was sufficient to destroy the life of any person, and therefore, if, as the cook had stated, the kettle contained a gallon of water, even if that had been cold there must have been not less than one three-hundredth part of the whole, or several ounces of arsenic in it; a quantity of poison sufficient to have destroyed the lives of five or six hundred human beings.  It also appeared from the evidence for the prosecution, that after the prisoner had returned from being reprimanded by Captain Innes, he had been cleaning the show bottles on the shelves where the arsenic bottle was, that he might have taken out some of the contents of that bottle without being observed, and that on the evening when the offence was committed, himself and five other persons would have drank tea infused in the poisoned water.

            The prisoner's Counsel, Mr. Purefoy, endeavoured by a rigid cross-examination of the witnesses for the prosecution, to show that the prisoner was the victim of the cook (Davis) a freed man, who had endured most of his sentence in the service of medical men, and who by having been longer in the prosecutor's employ than the prisoner, was better acquainted with the contents of the bottles in the shop than the prisoner; also, that there was an ill feeling on the part of this witness against the prisoner; that Davis had put the arsenic into the kettle in order to get the prisoner put out of the employ.  2nd - That the poison, if not put into the kettle by Davis, it had been put in after the kettle had been removed from the kitchen to the shop, by some persons unknown.  3rd - That the witness Davis was not worthy of credence, as since he had got his freedom he had been charged with felony, and was at present on bail on his own recognizance.  4th - That as the prisoner was remarkable for his shrewdness and intelligence, it was not likely when he got his tea from the prosecutor's table, that he would have put poison into the kettle in order to poison himself together with the rest of this family.  5th - That the crime charged was of such a diabolical, description that it was impossible for the jury to believe that so young a boy could have attempted its perpetration.  6th - He also endeavoured in the cross-examination to get the witnesses to contradict each other to such an extent as to render the whole of the case improbable, and 7th - when addressing the jury he contended, that it was necessary before they could arrive at the fact of its having been arsenic, which was analised by Dr. Nicholson, that it should have been produced before them in its metallic form, which he asserted was the only indisputable evidence of the sediment being metallic.  He also contended, that even if undissolved it was improbable that arsenic would float to the top, it being specifically heavier than water, and of course, when thrown into it as alleged, although undissolved, it would sink to the bottom.

            His Honor in putting the case to the jury, went minutely over all the material points of the evidence, and left it to them to determine whether the contradictions were such as might be regarded as minute or essential, observing that it seldom happened when a number of witnesses spoke to the same fact that they agreed in every word they uttered; but so long as these little discrepancies did not materially destroy the general contour of a case, they were to be regarded as proofs of the truth rather than of the erroneousness of the whole.  At the same time he instructed them, that if they thought that the one witness had materially contradicted the other the prisoner was entitled to the benefit of the contradiction.  It was certainly lamentable to see a boy of such tender years standing at the bar on such a charge, but although the age of the prisoner might be in his favor, as regards the feelings it could have no weight against the evidence; the jury would therefore dismiss every thing from before them but the evidence and the circumstances as sworn to.  With respect to the cook, who had declined saying what he had been transported from Swansea for, that did not materially affect his credibility, as he was not bound to answer the question, and it had not been shown either by himself or by the prosecutor that his credibility had been impaired since he arrived in the colony.  If the jury had any conscientious doubt respecting the facts and circumstances detailed before them, it was their duty to give the prisoner the benefit of that doubt; but they must remember that in forming their verdict they owed a duty to their country, to themselves, and their families, as well as to the prisoner.  He also told them to form their verdict irrespective of what might be the consequence of either acquitting or convicting the prisoner, as it was their peculiar province to deal with the matter so as to acquit their consciences before God and their country.  If they should find the prisoner innocent, it would give him, and he doubted not every one present, pleasure to ascertain that a jury had consciously arrived at such a conclusion, and if on the other hand, the prisoner had committed the crime charged against him, were he to escape the punishment which it deserved, the safety of the community would be endangered.

            The Jury retired for about half an hour and returned a verdict of Guilty; at the same time recommending the prisoner to mercy on account of his youth.

            His Honor ordered the prisoner to be remanded until he should consult his brother Judges as to the mode most proper to be pursued in punishing him; as, if he had been older he should have sent him to a penal settlement for life, and most probably to have undergone his sentence in irons, as he never heard of a more diabolical attempt; he also told the prisoner that if he had any feeling, it was his duty to thank Almighty God that his intentions had been frustrated, as had but one of his intended victims perished by the poison, he should have felt it to be his duty to have ordered him for execution, even though he had been younger than he was.  He was then removed from the dock.

            The trial lasted from ten in the morning till about half-past seven at night, and from the enormity of the offence, coupled with the tender years of the prisoner, excited great interest.  He appeared to pay great attention to the proceedings, and on several occasions availed himself of the privilege of communicating with his counsel through the attorney, in order to have the cross-examination of the witnesses properly carried out for his defence; at several stages of the trial he was observed to shed tears, particularly when the Attorney-General was opening the case, when his mother was spoken of as being a widow and when the Jury returned their verdict; he has a remarkably fine countenance, but is small for his age, and has received a common education, being capable of reading and writing.

Stephen J., 6 August 1840

Source: Sydney Herald, 7 August 1840[2]

The prisoner was ordered to be brought up to day at ten o'clock, to receive sentence, as was also the boy Power, who had been convicted of attempting to administer poison.  Mr. Purefoy stated that he wished to be heard in arrest of judgment in behalf of Power, as to the defect in the evidence respecting his being aware of the deleterious nature of the arsenic, and also because he was of opinion, that an act which makes a new felony, does not extend to infants under fourteen years of age; besides there was a medical gentleman who had came out in the same vessel with Power, who could speak as to the state of the prisoner's mind.  His Honor said that he had heard of that, and should examine that medical gentleman in chambers, and on the adjournment of the court withdrew for that purpose.

Dowling C.J., Willis and Stephen JJ., 7 August 1840

Source: Australian, 8 August 1840

            Peter Power, aged thirteen years, who was tried on Tuesday and found guilty of attempting to administer two ounces of arsenic, with intent to poison his master Mr. George Cummins of King street, druggist, and family, was brought up for judgment.

            Mr. Purefoy, as counsel for the prisoner addressed the Court in arrest of judgment upon the ground, that the evidence on the trial failed to sustain the charge of attempting to administer the poison, and be further contended that a new felony could not apply to an infant under the age of fourteen years, which was the standard of distortion established by law and laid down by all the old authorities, in support of his arguments he quoted several cases reported by various authorities.

The Attorney General opposed the motion, contending that in all the old authorities the age of fourteen years was mentioned merely, as the common standard and not intending to exempt them from doli capax. He cited numerous cases in which infants under that age had been executed for murder, arsons, poisonings and similar crimes of which children under the age of fourteen were quite capable. Some children were as precocious at seven as others at fourteen, and in this colony children generally were remarkable for their precociousness. It was also hereditary in some families. If it were known that children could commit such crimes with impunity, others could instigate them to crime with perfect safety, and their would be no existing in society with any degree of security. The consequences would be fearful.

            Mr. Purefoy replied - he said all the cases cited by the Attorney General related to common law, but, in his arguments, he had not touched the abstract question of law he had raised in the prisoners favor. But if the point he contended for was laid, he presumed, (however grievous the consequence of inducing others to instigate children to such heinous crimes, with which he had nothing to do, although he should deplore it as much as the Attorney General the court would give the prisoner the benefit of it.

            The Chief Justice delivered the judgment of the Court. He said in doing so the Court took no recognizance of the merits of the case, but simply pronounced his opinion on a point of law. Mr. Purefoy had very ably and ingeniously argued the case, but the Court saw no sustainable argument in the boy's favour. He commented upon each objection separately, and gave reasons for overruling them. The only question then was, whether the boy was doli capax or not, and it turned out that no standard of disaction was fixed at fourteen years of age. The true question, however, was whether the boy was conscious of the turpitude of the crime he was committing, and was actuated by that malignity of purpose which was supposed to induce the commission of such an offence, and all the circumstances were fully gone into at the trial. Some boys were remarkably precocious at seven yeas. It was proved he had put arsenic into the kettle, and having been punished by his master, it might naturally be supposed that his intention was to poison.

            The Attorney General prayed the judgment of the Court.

            Mr. Justice Stephen passed sentence upon the prisoner. He said every thing upon his trial proved him to be a bad, wicked, and depraved boy, and his brother Judges had concurred with him in passing upon him a punishment which would have the effect of reclaiming him by keeping it in his recollection. He had, however, been recommended to mercy by the Jury in consideration of his young years, and that had also been considered. The sentence of the Court was, that he be imprisoned in the Sydney gaol for twelve months, and kept in solitary confinement one week in each month, to give him time for reflection; and care would be taken that the other three weeks of each month should be passed apart from the other prisoners, and the means of religious instruction afforded him, that nothing should be omitted which was likely to reclaim him. Remember, boy, (said his Honor) you have a mother, and sisters, and brothers, whose hearts you must not break. (Here the boy held down his head, and wept). At the same time this punishment will not last always, it will have an end, and I hope at the end of twelve months you will come out a better boy, and that your punishment will have the effect of reclaiming you.


[1]              See also Australian, 4 and 6 August 1840.

[2]              See also Australian, 8 August 1840.

Published by the Division of Law, Macquarie University