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

R. v. Williams [1842] NSWSupC 50

murder - manslaughter - drunkenness - domestic violence - Campbelltown

Supreme Court of New South Wales

Stephen J., 12 January 1842

Source: Sydney Herald, 13 January 1842 [1]

            This prisoner was indicted for that on the 15th September last, at Sugarloaf Hill, near Campbelltown, he did shoot and murder one Ann Williams with a musket. The prisoner pleaded not guilty.

            His Honor remarked, that the Solicitor-General had nothing to do with the drawing up of the information, but he was desirous that something like accuracy should be attended to in drawing up these papers; he made this remark in consequence of hearing in the information just read, that the offence was charged as having been committed against the statute made in such case and provided, but he knew of no statute against murder, it was an offence at common law and ought to have been described as such; any person acquainted with the law of England might well be surprised at such an informal indictment.

The Solicitor-General who appeared for the prosecution after giving an outline of the case proceeded to call witnesses; when Thomas O'Brien deposed - I am a farm servant living beyond Campbelltown, at the Sugarloaf Hill. I lived in the house of the prisoner with a housekeeper of mine named Margaret Mead, on the 15th September last; there were several persons there drinking wine that day; I went out and lay down on the grass and was nearly asleep when I heard a gun go off the shot of which struck Mrs. Williams. Before that took place, Mrs. Williams was lying drunk on the bed, and I heard the prisoner say to a man named William Warwood, who was in the house, "I will give you my wife for your horse and cart;" on which Warwood said "no, but I will give you my mare and harness for her." After Mrs. Williams lay down in bed, Warwood who was also in liquor, lay down on the foreside of the same bed but afterwards rolled on the floor - we were all drunk, and had been drinking all night; I think it was in jest that the prisoner and Warwood were talking about the exchange of the woman for the horse and cart; I did not hear any quarrelling between the deceased and the prisoner; I did not see the gun fired, but I saw the smoke and heard the report; I saw the prisoner standing with the gun in his hand, and the woman lying about five yards from me. When I went up to the prisoner he said "see what I have done." I then went to Campbelltown and reported the circumstance to the police; on my return the prisoner said it was a bad job he had shot her, and must suffer for it; they must therefore bury her in the best way they could.

Cross-examined by Mr. Callaghan. - I lived about four months in the same house with the prisoner and the deceased; he always treated her with the greatest kindness and affection; it was the harvest time, and it is usual for the settlers before reaping to get in a little wine and spirits to treat the neighbours, and it was on one of these occasions that the drinking referred to took place. This witness's deposition at Campbelltown was put in and read, from which it appeared that immediately on the gun being fired off the prisoner said, "It is a bad job, I did not think there was anything in the gun;" the witness admitted that such an expression fell from the prisoner on the deceased being shot; he then went on to say, it is as likely as may be that I loaded the gun as I had it the day before shooting hawks; I used to have it daily, and generally took it in loaded; it was the prisoner's gun but I used to borrow it; I am confident that I left the gun loaded on the day before.

Re-examined. - I never heard any quarrel between the prisoner and his wife about her lying drunk on the bed with the other man Warwood; I heard the prisoner joking with Warwood about selling his wife; on the morning I heard the prisoner say he would shoot the deceased if she would go out; Margaret Mead was present, and heard what was said; I was not sober at the time; I had just had a sleep.

By the Court. - We had been drinking in that neighbourhood for several weeks; Margaret Mead is my kept woman; I am a native of the colony, about twenty-three years of age.

His Honor told the prisoner to take warning and immediately give up drinking, as he had an awful instance before him of what it led to, as it had been the cause of one persons' death, and of the prisoner taking his trial for his life; another evil, which it led to was the grossly immoral conduct the witness admitted he was guilty of in living with the female Mead without being married to her. If he had a respect for her, and she was a suitable person, he ought to marry her and live with her. If not, he ought to keep from her, as he was breaking the laws of God by living in such an immoral manner.

Margaret Mead deposed - I am a single woman; I came to the colony free many years ago, quite young with my mother. I saw the deceased about a quarter of an hour before she was shot; I was in an outhouse when she came to me to get the prisoner to fetch her some water; I said, "never mind, I will get O'Brien to bring it for her;" about a quarter of an hour after I heard the prisoner say, "take care, old woman, or I'll shoot you," on which I heard the gun go off; I went out of the outhouse and saw her wounded; the prisoner immediately began crying, saying "was it possible he had shot his poor old woman after living so long with her;" before she was carried into the house her clothes caught fire from the flash of the gun, and I was called on by the prisoner to put out the flames, which I did; he seemed to be very sorry for what had been done, and called to me saying "for God Almighty's sake, if you have any mercy, come and save my poor old woman from being burned, for I have shot her." The prisoner always treated the deceased with kindness and respect.

Cross-examined. - I have known the prisoner and deceased for two years; they were always living affectionately, he was always joking with her, and I do think he was speaking truth when he said that he did not know that the gun was loaded when he fired; she died almost instantaneously and was drunk as well as the prisoner at the time, but he soon became sober.

His Honor admonished the witness as to her future conduct, and that she should endeavour to live in a more respectable mode than she had been doing.

William Warwood who had been in the neighbourhood for 18 years, and had known the prisoner and deceased for 12 years; was asleep drunk under a hay stack when the shot was fired, and knew nothing of what had taken place till pulled out and told of it; he had been drinking there during part of the preceding day and all the night; when he saw Mrs. Williams she was dead; as soon as he was told of what had been done, he became sober. This witness never had been at a drinking bout at Williams's before.

Cross-examined. - The prisoner and deceased lived as fondly and affectionately together, as any couple on the settlement; but were both in the habit of drinking.

Patrick Ryan, a constable in the Campbelltown Police: took the prisoner into custody, when he said to the prisoner, "Williams, this is a bad job for you, how did it happen?" on which the prisoner told him that the deceased had asked him to get her a turn of water, when he said he would not, but seeing the gun at the side of the door he had taken it up, saying to her, "but I'll shoot you," and not knowing it was loaded he pulled the trigger and shot her, for which he was very sorry, as he had not had the gun in hand for a fortnight before; he also stated that he had no intention of shooting her.

Mr. Robert Pope, physician and surgeon, Campbelltown; first saw the deceased lying dead at the end of the house, on the 15th of September; she was shot in the right shoulder; the neck and shoulder were scorched; on making a post mortem examination on the following day, it appeared that a charge of small shot had entered the body near the right shoulder-blade, and passed out in front near the left collar-bone; it was such a wound as would cause instantaneous death; when he first saw the deceased the prisoner was standing by and crying for what he had done; he has known the prisoner for three years as a quiet inoffensive man; he had once seen him in liquor, when he appeared quiet. This closed the case for the prosecution.

Mr. Callaghan addressed the court for the prisoner, contending that the deceased had met her death purely by misadventure, and therefore, however much it was to be lamented that such an event had taken place, it was evident no criminal intent influenced the prisoner in discharging the gun, and if so there was no ground for the charge of murder, neither was there any evidence that ordinary caution had not been exercised - the law merely required ordinary care, and if such, he could not see that they would be warranted in returning even a verdict of manslaughter in such circumstances. He then called Messrs. Scarf and Hurley, who gave the prisoner an excellent character for being quiet, peaceable, and industrious.

In putting the case to the Jury his Honor reminded them, that however painful to the feelings, they were there to listen to the evidence and to decide whether the offence had been committed. On this point there were three questions, viz.: - Was it murder? Was it manslaughter? Or, was it no crime at all? In determining the first, they ought to give full weight to the character he had received; if they were of opinion that he fired the gun, knowing it to be loaded, with intent to strike her and do her bodily harm, then the prisoner was guilty of murder. His Honor then directed the attention of the Jury to the charge of manslaughter, which declared the prisoner innocent of any criminal intent, but implied he had not exercised all due and reasonable caution. With regard to the case cited by Mr. Callaghan, the prisoner there was proved to have taken the ramrod and tried a pistol which he imagined was then unloaded, but on snapping it the pistol went off and killed a person; but was such caution exercised in this case? Another instance of manslaughter is to be found in that of a person who gave a quantity of spirits heedlessly to a child under 10 years of age, when death ensued, and the prisoner was punished for manslaughter. His Honor also illustrated the nature of manslaughter by adverting to one of the first cases which was tried before him, where a woman was found guilty of manslaughter by having caused the death of her infant by drinking ardent spirits to excess. He called the attention of the jury particularly to those parts of the evidence which would enable them to ascertain whether due caution had been exercised by him to ascertain whether the gun was loaded or not. However painful it was for them, yet they were bound to hold that crimes and offences committed under the influence of intemperance, were as bad, if not worse, in the eye of the law, than when committed under other circumstances. If parties will indulge in drunkenness they must abide by and take the consequences.

The jury immediately found the prisoner guilty of manslaughter.

In passing sentence, His Honor remarked that the prisoner's own hand had been the means of depriving himself of one who was dear to him, that while under the influence of the awful vice of drunkenness he had hurried her into the presence of her Maker with all her crimes on her head, at a time too, when she was in a state of insensibility as to her awful situation. He also remarked that it was deeply to be lamented, that so many persons were in the daily practice of destroying their senses and reason by this demoralizing vice. Under all the circumstances of the case, he should give the prisoner the full benefit of the excellent character he had received, and but for that he would have passed the heaviest sentence which the law allowed - that of transportation for life; but as he had every reason to believe that the prisoner felt deeply the misery he had entailed on himself, and also in the sincere hope, that he would for ever forego partaking of that which had been the cause of the offence of which he was convicted; he was then sentenced to be confined in Sydney Gaol for one month, the first and last week to be in solitary confinement.

[1]See also Sydney Gazette, 13 January 1842; Australian, 13 January 1842.

Published by the Division of Law, Macquarie University