[murder – manslaughter – Van Diemen’s Land ]

R. v. Butler

Court of Criminal Jurisdiction

Wylde J.A., 15 May 1821 (Hobart session)

Source: Sydney Gazette, 30 June 1821

            Henry Butler was charged with the wilful murder of one Benjamin Davis, on Monday the 26th day of March last, at the farm of Beames, on Norfolk Plains. The evidence taken in this case extended to a great length. The prisoner and the deceased had been, it appeared, on the farm together for about three weeks or a month, during which time it seemed to be clearly proved, that the most friendly terms had subsisted between them, nor was the slightest difference known to have taken place up to the time of Davis's death. The deceased had been drinking at Beames’s, in company with the prisoner and two or three others, during the latter part of the Sunday, and again on the Monday morning, until he became "stupidly drunk;" and all the party were more or less intoxicated. As the deceased was lying on the floor before the fire in this state, the woman of the house requested the prisoner and another to take him out and lay him under the stacks, about 20 or 30 yards distant, where he was accordingly carried, and the men returned into the house. Soon after, the prisoner went out to thrash: and Beame’s son, a boy about ten years old, said he would go with him; when the prisoner, in good temper, said, "come along, I'll soon wind you." The mother of the boy followed soon after, within five minutes, as she swore, when she heard the flails go; and on coming to the ground saw the prisoner with the flail in his hand, but not the boy. As she passed the deceased, who was laying under the neatest stack, she observed him to look very pale, and called upon the prisoner to lift him up, and she thought "he was strangling from the liquor." The prisoner held the head of the deceased for an hour or more in his lap; when, in the presence of several people, the deceased expired without having uttered a word, and without a struggle. The general impression was, as the witnesses all swore, that the deceased had died from the effects of excessive drinking, which remained so till towards the evening of the same day, when the boy stated to his mother and a neighbour, as he swore again at the trial, that he had seen the prisoner run and jump upon the deceased, having, without saying any thing at the time thrown down his flail while thrashing with him; that the deceased had cried out "Oh God!" and turned himself half round, immediately after the violent shock occasioned by the jump. The boy further swore, that one Timson, who had taken the job of thrashing at the place with the prisoner, was present, and called out to the prisoner "not to touch the deceased." This in every point, however, was contradicted by Timson in Court, who swore that the boy was not by the stacks when he went to get wheat, which he immediately afterwards took to a neighbour's mill to grind. The body of the deceased had been afterwards inspected, under an order of the Magistrates, by two Surgeons, who, at the trial, declared their decided opinion to be, that the deceased had died, not from the effect of suffocation by drinking, but from a rupture of the blood vessel in the thorax, occasioned by great violence of some sort.

            Upon this evidence the Court, after the case had been very fully summed up and remarked upon by His Honor the Judge Advocate (Wylde), adjudged a prisoner to be guilty of manslaughter, and that for the offence he be transported to Newcastle for the term of four years.