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

R. v. Kinghorne [1842] NSWSupC 36

manslaughter, distinguished from murder - attempted murder

Supreme Court of New South Wales

Stephen J 28 March 1842

Source: Sydney Herald, 1 April 1842

               Alexander Kinghorne was placed at the bar charged with having on the 12th December, 1841, fired at one James Backhouse, alias Jonas Backhouse, alias Joseph Backhouse, with intent to do him some grievous bodily harm.

            Mr. JUSTICE STEPHEN said, that this case did not appear on the calendar, and enquired if the Solicitor-General intended to proceed with it before any other.

            THE SOLICITOR-GENERAL said, he was aware that the prisoner now at the bar had hitherto been out on bail, but this be said was not ready in any other case, and Mr. Dillon, the Crown Solicitor, had not yet arrived, and probably would not be in town until tomorrow.

            Mr. JUSTICE STEPHEN said, that he was willing to take this case on that account , and also because the prisoner's counsel was in attendance, but he wished it to be publicly understood, that if any prisoner who had been actually in gaol, demanded his trial, and the trial was ready, he should be bound to take such case first.

            The following jurors were sworn in, a number of those called having previously been challenged by the prisoner's counsel: Edwin Park, foreman, Thomas Raine , Robert Smith, Henry Perrier, Walter Short, Patrick White, John White, John Piper, John Joseph Ashe, John Nicholson, and Thomas Sayer.

               The SOLICITOR-GENERAL briefly addressed the Jury to the following effect:- The prisoner at the bar stood before them charged with a most serious offence, of which he had no doubt they would be glad to find him guiltless, and should such be the result he need not say that he should also be happy. He had no doubt that the prisoner was known to many of them, and as all were alike men, and had their sympathies to a certain extent, still he felt sure that no consideration whatever would induce them to give a verdict against the evidence: were they to allow themselves to be biased by any consideration whatever, it would be a gross violation of their duty. They had nothing to do with the consequences of their verdict; if they thought the evidence insufficient to convict the prisoner, why, they must acquit him; if sufficient, they must find him guilty: he would be ably defended, and he had no doubt that his learned friend, Mr. Foster, would set up a good defence for the prisoner, though he, looking at the evidence, which appeared to him to be conclusive, could not imagine what the defence could be. Mr. A Beckett then gave a brief summary of the case, and concluded by informing the Jury, that if they did not find the prisoner guilty of firing with intent to do grievous bodily harm, they might find him guilty of a common assault.

            The prosecutor Backhouse was called to the witness-box, and a considerable time was taken up in endeavouring to ascertain what was really his Christian name; he did not appear to know, but the counsel on behalf of the prisoner not making any objection on this account, the case was proceeded with.

            - Backhouse deposed: He had been sent up to Bathurst by Mr. Abercrombie with some horses to Mr. Kinghorne's , where he was to remain to look after the horses. On the 12th December he was called out of bed, and, in consequence of what was told him, went into a wheat paddock to drive out some horses which had broken into the wheat. He found one horse, and drove it out, and into the stable. On his way he met the prisoner, who, after some other conversation, told him to get in all his horses on the following day. He answered that he might, or he might not. The prisoner then said he was insolent, and that he would take him to Bathurst , and ordered him to go at once. He told the prisoner that he would not go because it was Sunday. The prisoner then went and fetched a double-barrelled shot gun from the house. He asked prisoner what he was going to do; he said he would show him, and pushed him several times with the barrel. He set the gun down, and said he would chain witness to a bullock dray, and take him in, seized hold of his arms, but afterwards let him go; prisoner then said he would allow witness a quarter of an hour to consider   whether he would go into Bathurst or not. Witness said he would go, but not if prisoner carried fire arms with him; prisoner said he would make witness go , and would chain him to a dray; prisoner went towards the door apparently taking off his coat , and witness ran off as hard as he could, and had got some thirty-five or forty yards when he received a shot in the back, on the head, shoulder, and thigh, from the double-barrelled gun fired by the prisoner; on receiving the shot, witness turned round, and saw prisoner with the gun in his hand, and heard the second barrel snapped. Next morning, witness asked for a pass, which was refused, and the prisoner said if the second barrel had gone off he would have got more pepper than he had.

            Cross-examined: Was tried at the Wiltshire Assizes for horse-stealing, and transported for life; did not know that he was to obey the prisoner; could not positively say that he was under prisoner's orders; he did say that he might or he might not get in the horses; he did not consider that was insolence; he did tell Mr. Kinghorne, the prisoner, that he was not gentleman; but it was after the prisoner had laid hold of his arms. There were two other persons present; he did not recollect having said he could thrash all three of them, or daring them to touch him, as he would strike the first one that touched him; he might have said so, but he did not now recollect it. He did not hear the prisoner call to him to stop, before he received the shot; he was not aware that there was any change hanging over his head he had been in confinement ever since the affair happened, but he did not know what for: he did not go to the hospital of his own accord; he should not have gone had he not been sent there by the magistrates.

            Mr. Edward Rowling and Mr. Brassey , the other witness for the Crown, confirmed the prisoner's statement as to the discharging of the gun, and deposed that the prisoner Kinghorne had fired in the direction in which the prisoner went, but much lower; the bulk of the shot having lodged in the rails of a fence between the prisoner and the man Backhouse who was running up a rising ground, and whose whole person was at a greater elevation than the fence at the time the gun was fired. These witnesses deposed also to the extreme insolence of the man Backhouse, who had dared them to touch him, and said he could thrash the whole three of them, exclaiming as he ran off, " Now catch me if you can." The distance between the prisoner and Backhouse, at the firing of the first barrel, was from 45 to 50 yards; when the cap of the second barrel was snapped, the man Backhouse was full 100 yards off, and still running. They also swore positively that the prisoner, Mr. Kinghorne, had repeatedly called out before he fired the first shot, and again before he snapped the cap of the second.

            The overseer of the hospital deposed to having seen the prisoner, who was sent from the lock-up, and on examining him, found that four shot had penetrated the skin, one in the back, one in the head, one in the arm, and the other in the thigh; he took out one of the shots, which he now produced.

            This was the case for the Crown.

            Mr. FOSTER addressed the Jury at great length. He contended that there was no proof whatever of intent on the part of the prisoner to do Backhouse any bodily harm, and that he could not be found guilty even of a common assault, unless the Jury believed that when the shot was fired, Mr. Kinghorne was doing an unlawful act. He, however, contended, that what Mr. Kinghorne did was lawful; a felon, under his charge, after giving insolence and threats, and positively refusing to obey orders, set his master at defiance, took to the bush, and told his master to catch him if he could. What, he would ask, would have been the consequences had this man got off? He should have defended Mr. Kinghorne with confidence even if this man had died, and Mr. Kinghorne had been charged with murder: for he was as much justified in firing at the man Backhouse, as would be the soldiery who are placed by the Government over the gangs, with muskets loaded with ball in their hands to prevent the escape of prisoners. After going on with arguments at some length, Mr. Foster called -          

            Thomas Jones, chief constable, who deposed, that he had known Mr. Kinghorne upwards of seven years; that he believed him to be a humane person, and that during the period he had known him, he had never brought one of his servants to Court to be punished.

            George Rankin, Esq., J.P., since 1824, deposed that he had known the prisoner since 1825; that he considered him a person of the most humane character, and more likely to lean too much to the side of leniency than severity.

            James Walker, J.P., and J. L. Rodd , J. P., gave similar evidence.

            This closed the case.

            His Honor Mr. Justice STEPHEN summed up at great length; he protested against the doctrine laid down by Mr. Foster, that the prisoner was in the same position as a gaoler or a soldier, and gave it as his firm opinion that had the unfortunate man died, the prisoner now at the bar would have been guilty of murder. His Honor went through the case minutely; The Jury appeared however to have made up their minds at a very early stage of the proceedings, and in a few minutes after His Honor had ceased speaking, returned a verdict of not guilty.

            Mr. Kinghorne was discharged. His Honor intimating that he should represent the case to His Excellency in such a manner that Mr. K. should not be allowed to have assigned servants in future.

Published by the Division of Law, Macquarie University