[manslaughter - convict assignment - police, criminal defendant - Perth - convict escape]

R. v. Hamilton

Supreme Court of Van Diemen's Land

Montagu J., 7 January 1838

Source: Cornwall Chronicle, 13 January 1838[1]

Wm. James Hamilton, was indicted for the manslaughter of Samuel Dyke, a prisoner of the Crown -- Pleas, not guilty.

Thos. Archer, Esq., deposed -- I reside at Woolmers, in the district of Bathurst, about 4½ miles from Perth; I know the prisoner; I was present at an inquest held on the 29th Dec last, on the body of Samuel Duke, formerly my assigned servant; the last time I saw him alive was about 9 o’clock on Wednesday morning, the 27th ult.; I employed him as an assistant groom, and to fetch and carry letters from and to Perth; I had not sent him on the 27th to Perth; but had on the contrary, forbidden him to go thither; I did say whilst he was standing at my horse’s head, previous to my departure for Launceston; the deceased got drunk occasionally; at such times he was irritable, at least, so my overseer informed me.

Cross-examined by Mr. Stephen -- Counsel for the accused -- I have seen the prisoner at the bar before; probably may have spoken to him; but I know nothing of his character; if the deceased had been on my business as a messenger, he would have had a book with him; he was a convict, assigned to my service, and was always dealt with as such.

By the court -- I saw the body at Perth hospital.

John Salmon sworn. -- I am a surgeon, residing at Perth; on the 27th ult.; about 7 o’clock in the evening, I was called on by Mr. Hamilton, to attend a man whom he had knocked down for attempting to escape from him, and whom he feared he had either killed or severely injured; I immediately proceeded to the spot, and found the deceased, Samuel Dyke, sitting on the ground, and supported by two men; he appeared quite insensible; I bled him, and had him conveyed to the hospital, where, about 8 o’clock next evening, he expired. His death was occasioned by a fracture of the skull, causing a rupture of the blood vessels on the brain; there was an external wound on the left temple; such an instrument as this riding-whip would inflict a wound of the like description; I opened the head, in conjunction with Dr. Paton, and found a piece of bone about the size of a shilling, broken into five pieces, and depressed upon the brain; the depression was, no doubt, caused by the violence of the blow; the skull of the deceased was unusually thin.

Cross-examined by Mr. Stephen -- Judging from the appearance of the external wound, I should not have thought the blow as violent as its effects declared it; the reason Mr. Hamilton assigned for having struck the deceased, was, that he attempted to escape from him, and to seize the bridle of his horse; he told me also, that the man was Mr. Archer’s post messenger, and that whilst he snatched at the bridle with one hand, he motioned with the other as if to seize him by the foot, and unhorse him; I know that there was an unusual riot and disturbance at Perth, during some days immediately succeeding Christmas, particularly at Mr. Ruffin’s public house, which was constantly infested with drunkards; Mr. Hamilton is considered as a passionate, but humane man; he has charge of the police under Mr. Hortle; he has been in a weak state of health ever since I know him; he is subject to a disease which renders dismounting from a horse particularly painful and inconvenient; it is a complaint of the urethra; Mr. H. said it was first occasioned by a strain.

Cross-examined by a juryman – I think it doubtful whether a blow struck with the same force on any other part of the head would produce the same effect, if, indeed, we omit the temple; the blow took effect immediately above the ear.

Wm. Paton sworn -- I am a surgeon; I was called in to attend the deceased about five minutes before his death; I took a post mortem examination of his head; I was directed where to look for the internal injury by the external wound; the membrane on the inside of the skull was not cut through, but there was a considerable extravasation of blood upon the brain, which I consider to have been the immediate cause of death.

By the Attorney General -- I found a piece of bone broken into five fractions, which compressed the brain; it would require the exercise of considerable force with such an instrument as this whip, to produce such effects, as the bone at that place is protected by the temporal muscle; which serves it as a pad; I have opened many skulls, but I think I never inspected one so thin; other parts of the skull, although thicker, are not so well protected, a blow with the same force would occasion death.

Constable James Saunders sworn. -- On Wednesday last, I had just returned from Norfolk Plains to Perth; I saw the deceased run through Mr. Ruffin’s public-house; Mr. Hamilton desired me to follow him; I did so; I had a musket in my hand, which I dropt in the pursuit; after I had caught him, I was bringing him back Mr. Hamilton met me, and said he would convey him to the watch-house; I, therefore, left them, and went to look for my piece; shortly afterwards I saw the deceased making at a quick pace into the bush, closely pursued by the prisoner; I followed and on arriving at a fence, saw Mr. Hamilton on one side, and the deceased on the other; I got over the fence, and when within a hundred yards of him, called out that if he did not stop, I WOULD BLOW HIS BRAINS OUT! on which he darted off, and I lost sight of both him and the prisoner; the next thing I heard was Mr. Hamilton cooeeing and calling me; on getting up to him, he said, “I’ve knocked him down -- make haste -- or perhaps he’ll get away again;” when I came to where the deceased was, I saw him laying as if asleep; the prisoner then seemed alarmed, and said he did not think he had hit him so hard; he begged of me to take him on my back, and carry him to Capt. Ritchie’s; I told him he had better go and get me assistance to remove the man, or else go at once for the Doctor; he immediately galloped off, in the direction of Capt Ritchie’s; he looked pale and agitated! he told me the man had caught at his bridle, which occasioned him to strike him; a few minutes after, Mr. H. came up with two men, carrying some water, with which we bathed his temples; soon afterwards, the prisoner fetched Dr. Salmon, who bled him; he was then removed to the hospital, this whip is like one the prisoner carried that night.

Cross-examined by Mr. Stephen. -- It was not from me he got away; did not see him get away; he was to have been taken to the watch-house; at the time, I considered him to be a runaway; he was not drunk, but appeared to have been drinking; the prisoner expressed great sorrow for the state the man was in.

After a long address from Mr. Stephen in defence of his client, the Judge, in charging the Jury, explained to them the difference in point of law between justifiable homicide and manslaughter, which consists principally in the circumstance whether or not the accused was engaged in a lawful act at the time of its occurrence; even if he were engaged in the exercise of his duty, and neglected to take proper precaution to prevent fatal results -- then it was manslaughter. Now he, the Judge, would asks the gentlemen of the jury, whether any man using such a weapon as Hamilton had done, could be said to have observed the dictates of prudence, when apprehending a prisoner? He was aware that it was an opinion entertained by some of the police, that they were justified in resenting to violence on every little provocation. He hoped they would take the present unfortunate event as a warning not to indulge such ideas. In cases of misdemeanor, a resort to fire arms or deadly weapons the law would not tolerate at all, and it was only in cases of felony when determined resistance was offered, that such a procedure could be pardoned. There was another feature in the case of the prisoner which did not at all tend to lessen that criminality -- it was, that he knew the deceased was no bushranger nor desperate offender, and it being Christmas time, his absenting himself without leave a few hours from the service of his master, was certainly not an offence of such magnitude as to call for the dreadful chastisement with which through the prisoner’s imprudence, it had been visited. His capture was not an object of such paramount importance, as to justify the violent measures which were adopted to secure it.

The Jury returned a verdict of Guilty, but strongly recommended the prisoner to mercy, and the Judge most mercifully sentenced him to pay a fine of £50 to the Queen.