Willis J., 1 May 1838

TUESDAY. - Before Mr Justice Willis, and a Civil Jury.

Thomas Cordell was indicted for an assault with intent to murder John Macguire, at Bathurst, on the 29th October, 1837.

John Macguire. - I am a government man to George Kable, of Bathurst; I was stationed at Burragang, on the Mudgee River, in October last, I was a stock-keeper; the prisoner at the bar was hut-keeper for me; there was no other person at the hut; one night (Sunday) in October, I asked the prisoner for some supper; he refused me and I went to bed; on the following morning, when I awoke, I found myself covered with blood; when I opened my eyes, I saw the prisoner standing over me with a tomahawk, which was all over blood, as well as the prisoner's hand; when I was going to rise, he said, ``you b--r you are not dead yet," and he struck at me with the tomahawk; I put up my hand to save the blow, and he broke my finger as I now shew; it was with the edge of the tomahawk he struck; my hand was not strong enough to ward off the blow, which also struck me on the head; my head had been cut before; I asked him for a drink of water; he refused me; I said he had served me very badly, and he answered that he ought to have served me so long before; I had eight or nine cuts on my head and body; several days after, he asked me to make it up; he offered me £5 if I would lay it on the bushrangers; I asked him to get me some assistance; he refused me, and never afforded me the smallest help for nine days, during which time I could not stir out of my bed, and had no person to give me anything; I was without sustenance during that time; at the end of nine days I went to Mr Cox's station, where I got every attention; when the prisoner was at home, he used to sit at his meals and never offered me anything; no person came to the hut during that time; the prisoner remained five days after he struck me, he then bolted away; I had to crawl on my hands and knees to Mr Cox's station; I could not walk.

The prisoner, when desired to cross-examined the witness, asked a few questions as to whether he did not supply witness with provision - which the latter denied.  The prisoner appeared an ignorant clownish man, and did not deny the striking.

Samuel Curtis, Esq. - I am a Surgeon; in the beginning of November I saw the last witness; he came to me for advice; he was greatly exhausted; he had eight or nine very large scalp wounds both on the front and back part of the head; the wounds laid bare the skull, and must have been inflicted with great violence; he had also the fore finger of the left hand fractured; it was a compound fracture, and must have been given with a blunt instrument; the wounds on the head were filled with maggots; I heard the last witness's evidence; the statement tallies exactly with what he told me; he stated to me that he had been several days without food, and I should think it possible that a man might linger nine days without food; he was greatly exhausted when he came to me; I do not know how the witness came to my house; he was scarcely able to walk; the fracture of the finger might have been done with the back of a tomahawk; the skin was not cut, but the bone protruded through the skin; I did not myself observe any indication of imbecility in the prisoner; I did hear a report of it.

Mr Keck, gaoler, was ordered to be sworn by his Honor, as there was some doubt as to the prisoner being of sane mind.  Mr Keck stated that the prisoner had been in his custody about three months, during which time he had frequent opportunities of observing his manner, which to Mr Keck, appeared to be that of decided lunatic.

Richard Millage, stockman to Mr George Kable, Bathurst, knew the prisoner a short time, but never observed anything particularly strange in his manner; the prisoner went to witness's hut to ask for corn meal to make a poultice for Macguires head, which he stated to have been cut by bushrangers; Macguire was very weak, covered with blood, and had many cuts on his head; witness lent Macguire a horse to go to the surgeon's, at Wellington, but had to help him on the horse.

John Rae, a mounted policeman, stated that he apprehended the prisoner, who appeared to be imbecile, sometimes laughing, sometimes crying, and at other singing; he always denied having cut the man.

This was the case.  The prisoner stated in his defence, that the prosecutor, a few days before the deed, had run after him with two tomahawks and threatened his life; he had been thirteen years with one master out of fourteen, and had never been in trouble.

Mr Alfred Kennelly was called by his Honor at the suggestion of the prisoner.  Mr K. knew nothing personally, but had heard that he was not of sane mind.

Another witness was called to endeavour to ascertain the state of the prisoner's mind at the time of the assault, but he could not speak satisfactorily on that point.

Before summing up, His Honor delivered himself to the Jury as follows:--

Gentlemen of the Jury - I take this, the first opportunity afforded me in the session, before I allude to the case of the individual before us, to say a few words with reference to our relative situations, and the high and honourable trust which is imposed upon you as Jurymen.  In this Colony, as in England, a great part of the public business of the country, is transacted by the country itself; and upon the prudent and faithful management of it depends, in a very considerable degree, its interior prosperity, and the satisfaction of the great body of the people.  There is erected in this Colony, as in England, a high and venerable tribunal, to which owners of permanent property, down almost to the lowest classes, are indiscriminately called upon to take part; not in the mere ceremonies and forms of the meeting, but in its most efficient, and important functions.  The wisdom of man has not devised a happier institution than that of Juries, or one founded in a juster knowledge of human life, or of human capacity.  In jurisprudence, as in every other science, the points ultimately rest upon common sense.  But to reduce a question to these points, and to prepare them accurately, requires not only an understanding different from what which is necessary to decide upon them when proposed, but oftentimes also, a technical and peculiar erudition.  Agreeably to this distinction, which runs, perhaps, through all sciences; what is preliminary and preparatory, is left to the legal profession; -- what is final, to the plain understanding of plain men.  But since it is necessary that the judgment of such men, as you, Gentlemen of the Jury, should be informed, and since it is of the utmost importance that advice, which (I venture to say), falls with so much weight, should be drawn from a proper source; a Judge, who has spent the greatest portion of his life in the study and administration of the laws of his country, is directed to preside; and is bound to declare his opinion without reference to any thing whatever, save the evidence he receives.  The effect must correspond with the wisdom of the design.  Juries, Gentlemen, may err, and frequently do err; but the system of error is not, in our English Juries, incorporated with the system of their constitution.  Corruption, terror, influence, are excluded by it; and prejudice in a great degree, though not entirely.  The danger which consists in Juries viewing one class of men, or one class of rights, in a more or less favourable light than another, is the only one to be feared, and to be guarded against.  It is a disposition which, if in the course of the session, it should by any possibility arise in your minds, will, I am sure, Gentlemen of the Jury, be repressed by your probity, your consciences, the sense of your duty, the remembrance of your oaths.  The institution of Juries, I need hardly tell you, is not more salutary than it is grateful and honorable to those popular feelings of which all good governments are tender.  Hear the language of the law: In the most momentous interests, -- in the peril indeed of human life - the accused (as the prisoner at the bar has done this day), appeals to God and his Country; -- which Country you are.  What pomp of titles!  What display of honours! can equal the real dignity which these few words confer upon you, Gentlemen of the Jury, to whom they are applied?  They show, by terms most solemn and significant, how highly the law deems of the functions and characters of a Jury; they show also with what care of the safety of the subject it is, that the same law has provided for every one a recourse to the fair and impartial arbitration of his neighbours.  This, Gentlemen, is substantial justice; this is equality of protection; real freedom; freedom from injustice.  May it never be invaded - never abused.  May it be perpetual - and it will be perpetual if the affection of the Colony continues to be preserved to it by the integrity of those, who like you, Gentlemen of the Jury, are this day charged with its high ad honourable office.  I now proceed to the case before us.  Before I enter upon the evidence, however, let me, with reference to a point that has arisen, state what the law is in this particular: -- ``To justify the acquittal of a prisoner, charged with such a crime as is now before us, on the ground of insanity, the Jury must be satisfied that he was incapable of judging between right and wrong; and at the time of committing the act, he did not consider that it was an offence against the law of God and Nature."  The evidence you have already heard:  It is your province, Gentlemen, to decide whether that evidence, which I shall proceed to recapitulate, sustains the accusation.  I shall call your attention, as I proceed, to those points which appear to me most worthy of your consideration; and then, without further observation, leave it, as it is my duty to leave it, in your hands.  His Honor proceeded to recapitulate the evidence, and continued - ``on this evidence, Gentlemen of the Jury, it is for you to decide.  It would be a most unhappy case for the Judge himself, if the prisoner's fate depended upon his directions; unhappy also for the prisoner; for if the Judge's opinion must rule the verdict, the Trial by Jury would be useless."

The Jury retired for a few minutes, and returned a verdict of Guilty.  Mr Lamb the foreman of the Jury recommended that enquiry should be made of his former master, as to the state of his mind generally; as also of any medical gentleman experienced in the matter.  The Jury recommended this on account of the testitimony [sic] which had been given by Mr Keck as to his insanity.

His Honor stated that he would take care that every inquiry should be made for the benefit of the prisoner, before sentence was passed.  The prisoner was remanded.

Notes