R. v. Thomas

Supreme Court of Van Diemen's Land
Pedder C.J., 26 May 1830
Source: Colonial Times, 4 June 1830[1]

(From the Launceston Advertiser.)

May 26. - William Thomas was charged with the wilful murder of John Warne, commonly known by the name o[f] Smutty Jack.
The Attorney-General declined saying much in the opening of the case, but proceeded to call witnesses, who proved that Warne and Thomas were together in town, and that they left town together. A Mr. Brown proved that Thomas fitted a a flint into the gun and primed it, before he left town, but this was in consequence of the flint and priming having been taken out to prevent the children shooting themselves.
Messrs. Hinksman, Johnson, and Glaire, the constables who apprehended Thomas, were then called, but as Johnson's evidence was the best given and clearest, and as they all went together, except in very trifling points, we shall only give Johnson's evidence.
Thomas Johnson. - I was a constable in 1829. I remember going to watch with Mr. Hinksman, on the 14th April, at night, near Mrs. Townsend's house. We heard two persons talkin[g] in a cart, that was passing about 10 o'clock p.m. - The cart was going up the Magpie Hill. Both the men were in the cart. I heard one say, "That is the reason they call me Smutty Jack." It was in answer to something which I did not hear. The cart was going at a slow rate. At that time I did not know who the men were, their dresses appeared light. The cart [p]assed on, and shortly after, I, Hinksman, and Glair followed. We went about a mile and a half. The cart was out of our sight and hearing. When we got near the foot of the Magpie Hill, we heard a piece fired off. After we walked a short distance I saw a cart on the face of the Magpie Hill. I walked about five minutes. We all three went off the road, behind som[e] wattle trees, at my request. The cart turned off the road. We crossed and followed in the same direction, and I saw a man coming from the direction where the cart had gone towards. We all three ran towards him, and Mr. Hinksman called out "Stand!" twice, and the person answered, "A friend!" When I got up to the prisoner I knew him. I said, Thomas, what are you doing here? He replied, going to camp! - he repeated this. I was astonished, because he was not going in that direction. I pulled his hand out of his coat pocket, and thought I saw blood upon it. It was a very clear night. I then pushed the prisoner on, and we went towards the cart. Before we went to the cart, Thomas said I have got a dead man here. I went close to the cart, I observed the body of a man [fas]tened to the tail of the cart, on his back, and his face covered with blood. I said to prisoner, Thomas, I shall take you into custody, in the King's name, as I consider you to be the murderer. I searched the prisoner. I secured his hands, and brought him to Launceston. I took a purse, some silver, some notes of hand, and a paper relating to some land from him, and from his coat pocket a razor; when I took the money from him, he said, the money and papers were Smutty Jack's (or J.W.'s) I afterwards remarked blood on the money, when I got to Launceston, and upon the paper. I h[a]d these things in my possession all this time. I asked Thomas how he came to have these things in his possession; he said, no one had a better right to take the from Warne than him. In Launceston I took a razor from Thomas's pocket, it was stained with blood and mud, as if not cleanly wiped. I assisted Glair to put the body in the cart. I felt for pulse, but found none. I believ[e] the body was not cold. We proceeded to Launceston. Thomas said, that two bush-rangers had come on to the hill -- had shot Warne - and ran away into the bush. He stated that he had chained Warne to the cart to drag him into the bush, out of the way, for fear the bushrangers s[h]ould come again. I asked him to describe how the robbers were dressed; he said, in black or blue, and one with a glazed hat; and that one of them was a good deal taller than the other. He talked a good deal of disconnected conversation to himself, as - two men came out of the bush, and said, stand, or I'll shoot you. He did not addr[e]ss this to an[y]body. He spoke as contriving a story. He appeared very frightened when I searched him. He named Glair and Hinksman, but not me. He dropped some powder out of [h]is pocket when I first searched. Mr. Hinksman picked it up, it was from the pocket where the razor was in. I examined the body at the hospital; it was the body of John Warne. I knew him well previously. I knew him well by the name of Smutty Jac[k]. I am not sure I knew him by t[h]e name of Warn[e]. I think it was ten or twelve minu[t]es from the time I heard [th]e sho[t], until we came up to Thomas. I heard no other shot, nor any person cry out. The next day I went to the same spot, early in the morning, and tracked the mark of something dragged behind a cart from near Mrs. Townsend's to about half way to the Magpie Hill; I there found the marks of a man's hands, and some earth raked over; under which I found clotted blood and six-pence. I traced the mark of the same cart down the hil[l], a little distance, and there it turned into the bush. The place where we lay in ambush was between where we found the first track of the cart and the Magpie Hill. This was the direction in which I saw the cart the preceding evening. I traced it to where we found the de[a]d calf the preceding evening. I could not tell how man[y] persons had been in the cart by the footsteps. Some mor[e] blood I also found on the bank covered over. I did no[t] observe any difference in the trace from where the blood was. I could plainly see that the cart had turned round on the Magpie Hill - it went down the hill again. The prisoner said nothing about bush-ran[g]ers until after I had secured his hands. He did not desire us to go in pursuit of any bushrangers, nor did he say they were close at hand. These papers I found in the prisoner's pocket. This note of hand and these notes I took from J. Warne's pocket. This razer is the one I [h]ave referred to; it appears rusty where the blood was, and blood is to be seen on the handle. This is the bag of powder Mr. Hinksman picked up, and which I saw the prisoner thrown down. I remember coin and a purse, like what I found on the prisoner.
By the Prisoner. - I searched you before I put Warne into the cart. I tied your hands. I helped to put the body into the cart. I might have blood on my hands by so doing. I did not, by touching the razor or money, put blood on them. I did not touch the money or razor until I had washed my hands. I am certain that I did not put any blood on them. You said the papers belonged to Warne. As I took the things from you, you said they were Warne's - the silver and the notes of hand. I did not ask you that night who the razor belonged to. I told you to take your hands out of your pockets. You did not turn your pockets inside out. You did not converse with us that night. I was 60 or 70 yards from the road when I saw the cart pass. I remained there until the cart got out of sight and hearing. From where we watched to where we were when the gun went off was about a mile and a half, or thereabouts. I came towards the noise when I heard the report - all three of us did. It was about 10 or 12 minutes from the time I heard the report until I came up to you. When I first saw the cart on the hill it was not moving, but it soon came down, and I stepped out of the road; I then crossed and followed it. I was the first that came up to you; you had a gun in your hand. You stooped down and picked up a whip. When I spoke your left hand was in your pocket; I pulled it out and saw blood on it. I, and Glair, and Hinksman went with you to the cart; I was first. I saw a dead man and calf chained to the cart. You said there was a dead man at the cart, before we reached it. The calf had been fast to the cart when it passed where we lay in ambush. When the cart passed we saw the men and the body of the cart, but not the calf hanging to it; the calf appeared partly putrified. Warne had on a pair of black kerseymere trowsers, and a fustian half coat, very much torn and bloody, when I examined his body at the hospital. I knew the prisoner and he knew me. He called Glaire and Hinksman by name, but did not name me. I believe there was some fat in the cart. There was a bag with a keg of wine, some shirts, some soap, and various other articles. Part of the belly of the calf had been torn open. I think the chain was passed through the legs of the calf, and round the legs of John Warne, and attached to the cart. I suppose a hole must have been cut to put the chain through the legs of the calf.
By the Attorney-General. - Where I saw the marks of the blood next morning, was where I had seen the cart on the night previous. I saw no person at that time with the cart; as soon as the cart went on, I saw the man and heard him speak to the bullocks. I cannot swear that a calf was fast to the cart when it passed; I rather think I could not see it if I had looked; I think the ground would have prevented me.
By the Chief Justice. - There was not any blood on the road where the calf had been dragged. I think the body of the deceased was not bleeding when we found it.
The prisoner examined several of the witnesses very minutely; and in his defence he stated he could have no motive for killing John Warne, because the man Warne was about to sell him al[l] his property for £300, with a year's credit, that it was to have been made over to him at Mr. Gleadow's, and that until made over to him he could have no motive to kill, but rather to keep him alive. Thomas called several witnesses, but he only occupied the Court uselessly, they could say nothing in his favour.
The Chief Justice summed up in a most impartial manner, pointing out to the Jury every thing that could possibly benefit the prisoner; and the Jury, after retiring about 10 or 15 minutes, brought in a verdict of -- Guilty.
His Honor the Chief Justice then admonished the prisoner, pointing out the fairness of the verdict, according to the evidence. He then passed sentence upon him, that he was to be executed on Friday next, and his body given over to the Surgeons to be anatomized, but told him that he would not suffer them, because his case must go before the Governor and Council, but not to draw any hopes from that delay, for he was clearly of opinion that he would suffer.
This trial lasted from about 11 A. M., till past 7 P. M.

Notes
[1] William Thomas was a free man who arrived on the Phoenix and was executed on 30 June 1830, AOT SC 41/1, p. 145. For other Launceston criminal cases in this period, see Hobart Town Courier, 12, 19 and 26 June 1830; Tasmanian and Austral-Asiatic Review, 18 and 25 June 1830. Eleven prisoners were sentenced to death at this session: Tasmanian and Austral-Asiatic Review, 25 June 1830.