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

R. v. Tancard [1841] NSWSupC 16

murder - manslaughter - boxing match

Supreme Court of New South Wales

Stephen J., 8 February 1841

Source: Sydney Herald, 9 February 1841[1]

            Before the Mr. Justice Stephen and a Common Jury.

            Stephen Tancard, of Sydney, was indicted for the murder of Richard Ralph, on the 2nd November, in a boxing match at Blackwattle Swamp, and Charles Leonard was indicted for being present, aiding and abetting.

            The prisoners were defended by Messrs. Windeyer and A. Backett; the latter for Tancard, and the former for Leonard. The defence of the latter was, that he went to the ground for the purpose of preventing the fight, and there was but one witness who was on the ground who had deposed as to his calling out "time," while that witness had been contradicted by all the others. Tancard's defence was, that the deceased had incited him to fight him by throwing up his hat in Parramatta-street, and offering to fight any man in the street; that after a round or two the prisoner offered to give up the fight, which the deceased refused to do; and that the deceased told him that unless he continued the fight he should polish him off, and therefore he was necessitated to continue the fight in self-defence. Evidence was also given in favour of the character of the prisoners.

            In putting the case to the jury, His Honor stated, that notwithstanding the ingenious arguments used by Mr. Windeyer, he was bound to tell them that boxing or fighting was an illegal act, not only according to the opinion of Justice Foster, who was one of the highest authorities that could be quoted on criminal law; but also on the authority of Blackstone, Sir Matthew Hale, Sergeant Hawkins, and on that of East's Pleas of the Crown (page 207). If these authorities were not to be relied on, he did not know what authorities could be quoted in criminal courts of justice. But even the reasonableness of the question must convince every intelligent person that fighting with the fists was a most illegal act. Was it to be endured in any Christian community, that two men were (as in the present case) first to degrade themselves by the use of intoxicating liquors, and then to beat, lame, kill, and murder each other? At the very least, the offence was manslaughter of the most aggravated description; and he would even go further and instruct the jury, that if, in any case of death by boxing, it should be proved that there was malice among the causes which led to such contests, and that the parties wagered on the decision of such quarrels, then the offence became murder. It was of the utmost importance to the welfare of the community that the provisions of the law should be strictly enforced, to suppress such abominable, brutal, and disgusting practices. It had been said by the learned counsel that boxing was a national amusement. But he would put it to the common sense of the jury, what amusement could there be in such illegal acts? Was it to be tolerated for an instant, in such large towns as this, that mobs of disorderly blackguards should be drawn together for the purpose of contemplating a couple of infuriated drunkards shedding each other's blood? He considered it but justice, in the case of the principal Tancard, to state that there were a number of mitigating circumstances in his case, all of which would go in his favor as to mitigating his punishment, should he be found guilty; but all that the jury had to do was to decide on the evidence. The jury retired for about five minutes, and on their return acquitted the prisoner Leonard, who was discharged; they found Tancand guilty, but strongly recommended him to mercy, on account of his previous good character, the provocation he had received, and his offering to give up the fight. His Honor ordered the prisoner to be remanded till he had an opportunity of consulting His Honor Mr. Stephen, as to his sentence, which should be as mild as consistent with public justice, as the ground on which the jury had recommended him to mercy were such as the Court would pay attention to.

Dowling C.J., 15 February 1841

Source: Sydney Herald, 16 February 1841[2]

Stephen Tancard, who had been convicted before Judge Stephen of manslaughter, was then placed in the dock, when the Judge before whom he had been convicted informed him that he was happy to say, that, from the evidence adduced on his trial, that it was in his power to say that the case of the prisoner was very different from the other charges of a similar description which had been tried before his Honor the Chief Justice : the prisoner had received a good character, and the Jury had, in the exercise of their discretion, recommended the prisoner to the merciful consideration of the Court. He had since the conviction, ascertained by enquiry that the prisoner, up to the time when he committed the offence, had been well behaved in the colony, and, therefore, he, as a dispenser of the law was anxious to give full effect to that character; but he could not shut his eyes to the evil effects of prize fighting, which had been so ably exposed by his Honor the Chief Justice, and which he trusted would receive publicity as it deserved, His Honor here gave an outline of the evidence, and sentenced the prisoner to one month in Sydney Gaol, in consideration of the confinement the prisoner had already endured, and intimated that he should also consider it but fair to the prisoner to inform His Excellency that the said outline was a full answer to all the offences charged against the prisoner, and that if he endeavoured in future to keep his character as it appeared before the court at present, that the charge for which the punishment was awarded, should prove no objection to his receiving in due time such indulgencies as he was likely to be a claimant for.

Notes

[1]              See also Sydney Gazette, 11 February 1841; Australian, 11 February 1841.

[2]              See also Sydney Gazette, 18 February 1841; Australian, 16 February 1841.

Published by the Division of Law, Macquarie University