R v Davis, 1840

John Davis was charged with the manslaughter of Hugh Macdougall, in the district of Hamilton, in the month of April last.

On the first witness being called, His Honor requested the Attorney General to open the case, to the Jury, as it was one of considerable importance; the learned counsel accordingly did so, in a very clear and impartial manner, pointing out the line of distinction between murder and manslaughter, and directing attention to certain circumstances in the case, which inclined in favor of the accused.

James Burn - Knew the deceased Hugh Macdougall; saw him last alive about the 16th of April; it was on a Monday; he was lying in bed, with his head on a pillow, by a fire in Littlehales’s house; this was between 10 and 11 in the morning; deceased appeared to witness to be in a state of intoxication; he laid, and seemed to be snoring, and made no motion; his breath smelt strong of spirits; witness remained there till about three o’clock in the afternoon; the deceased never spoke, during the time witness was there. A man, named Morgan, came in about three o’clock, and looked at Macdougall; he got some warm water, and washed his mouth; witness and William Patterson rose him off the bed, when he appeared as if he were going to be sick; but only a little blood and water came out of his mouth; he dropped his hands, his head fell upon his breast, and he died. Witness was quite sure that the deceased took no spirits, nor anything else, while he was in the house; was present at the Inquest, the next day, and saw the body of the deceased shifted into a room; he had known deceased, who had been a carrier, between four and five years.

By His Honour. - William Patterson, John Davis, and Littlehales were present, at the house; the deceased had a black eye, on the left side. Witness went to Littlehales’s house about some logs.

Captain Fenton - Resides at Allanvale, and knew Macdougall; he last saw him on Sunday, the 19th of April, between two and three o’clock, standing outside of Littlehales’s house, near a cart, as if he had just let some bullocks loose into a field; Littlehales was with him; he (witness) had some conversation with the deceased, who was sober, but seemed as if he had been drinking; he (deceased) knew very well what he was about. Witness, having lost a bullock, enquired of Macdougall, whether he had seen it? He said, it was at an adjoining farm, and that he (witness) might return to Allanvale, as deceased had also lost a bull and bullock, and was going for them, when he would get witness’s at the same time, and bring him to Allanvale, the next morning. At that time, witness did not see the deceased drink anything. About seven o’clock, witness called again at Littlehales’s house, and told deceased he had not found his bullock; Macdougall had something in a pannican, and he asked witness if he would have a drink of tea, which witness declined; he seemed then to be sober, and called after witness, telling him not to be uneasy, if he did not find his bullock. Witness never saw him afterwards.

William Talbot. - Is in the service of William Bennett, at Jones’s Marsh; knows Littlehales who lives about a mile and a half, or two miles from Bennett’s; was acquainted with Hugh Macdougall, who lived at Littlehales’s; recollects leaving Littlehales’s place in company with the deceased, on the 17th of April; they went to New Norfolk with a load of barley in a cart, drawn by six bullocks; Macdougall returned on the Sunday; witness was with him on the Saturday, but he (witness) slept that night in the bush, by Captain Fenton’s, leaving the deceased to sleep at the blacksmith’s shop, at the Woolpack; witness next saw the deceased on the Sunday morning, as he came by the place where he had been stopping; some conversation took place about some bullocks; he had four at the Woolpack, but only two then; witness asked him, what had become of the other two? he answered, that he had lost them, as the Woolpack; the deceased appeared stupified, as if the worse for liquor over night; Macdougall had in the cart two bags of sugar, a box of soap, some empty bags, and a keg of wine, containing five gallons; this was about seven or eight miles from Littlehales’s house; witness saw him again the same day at Littlehales’s, when he had drank wine out of the keg with Davis, Patterson, and Littlehales; witness had about a gill of wine himself; the deceased was a little the worse for liquor when witness left; heard deceased say, that he had lost four one pound notes, but did not hear him say where he had lost them.

By His Honor. - The prisoner, Littlehales, and Patterson, did not appear tipsy; the wine was Macdougall’s own; the four were drinking wine, when witness left; he saw no spirits drank; when the deceased was tipsy, he was in the habit of quarrelling with and striking people; he struck witness on the Saturday night, on the head, with a whip handle, and cut it.

Edward Littlehales. - Lives in April last near the Hollow Tree; the prisoner at the bar was in his service at that time; Macdougall lived with them; Patterson lived at Mr. Bradbury’s. (This witness corroborated the testimony of Talbot, as to the taking away the barley, and as to the articles he brought back in the car, stating, however, that there were only about two gallons and a half of wine in the keg, when it arrived at his house.) Recollects a conversation between Patterson and the deceased - the prisoner was present; witness was taking a bag of sugar into the house, when Patterson said, “this bag does not weigh about 50lb weight;” Macdougall said, he was a Scotch liar, it was above 100; the things were carried into witness’s house, the wine amongst the rest; Macdougall began to curse and swear at the prisoner, about the weight of the bag of sugar; witness told him to hold his noise, as it was not worth while making a noise about; in the meantime Talbot came in, and witness said, he would give them a glass of wine, if they would be quiet - he did so; after this, Macdougall said, “here’s the receipt for your barley, and I will give you the money to-morrow,” at the same time putting his hand into his pocket, and saying, he had lost the money; Talbot said, he saw the woman at the Woolpack give him the money; Macdougall began to swear again at prisoner, about weight of sugar; witness told him to hold his mag as it was Sunday evening; looked out of doors, and saw Captain Fenton coming; heard the conversation between Captain Fenton and the deceased. After Captain Fenton went away, deceased again began about the sugar, cursing and swearing. Talbot then left. Witness told Macdougall, if he would hold his noise, he would give him another glass of wine; he then remained quiet for an hour or an hour and a half. Captain Fenton returned, and deceased went out to talk to him; he returned to the house, finished his tea, and began again about the sugar; he struck at prisoner but missed, and hit his fist against the wall; he then began again about losing his money; witness told him not to swear about it, as it was no use; deceased said, “give me some more wine;” witness said, “he would not, he might take it, if he liked;” he took a pint pot, filled it out of a keg, and drank if off; he sat quiet for a little while; got up and swore about losing money, and about the prisoner; witness said, if he did not leave off swearing, to go out of doors; he then cursed witness and his place, and rushed towards him; as witness was getting away, he fell down, when Macdougall caught hold of him and tore his clothes; Davis said, “if you do that again, I’ll knock your brains out;” witness rose up, Macdougall turned from him, and rushed towards Davis, there was a club-stick by Davis, Davis took it up, and struck Macdougall on the left side of the head, with both hands, (stick produced, and mode of striking described;) Macdougall fell down; witness then flew out of the house; went down to the barn, and remained there two hours; went away, because he knew well, that when Macdougall got up, he would be at him, for ordering him out of the place; upon witnesses’s return, he found Macdougall on the floor, about a yard from where he fell; he called for Davis to help him to get Macdougall into bed; Macdougall was in the room by himself; Davis was in the bed-room, adjoining the place where the deceased was lying; Davis did not come, and witness eventually placed the deceased upon a bed, doubled together with a pillow between his head and the wall; witness believed he slept the whole of that night in a sitting posture; Patterson slept that night in Davis’s bed-room; on entering the room, next morning, witness observed that Macdougall’s eyes were closed, and he appeared to be breathing hard; this did not excite any suspicion in witness’s mind; he having repeatedly seen him in the same state; deceased was a very passionate man, if disturbed in his liquor; there were no spirits in the house on Sunday; on witness calling to Davis, the night before, to assist in getting Macdougall upon the sofa; he made answer, “let him lie till morning.”

By His Honor. - There was no scar upon his face the previous night, but there was one the next morning on his left cheek; it was very slight; when witness returned, about nine o’clock the next morning, Patterson and Burn were sitting in the house together; the deceased was still in the same position as when last seen by witness; about half-past one o’clock the same day, witness came home to dinner, and found Patterson and Burn engaged in wiping Macdougall’s face; he died about half-an-hour afterwards; witness heard Davis say, when Macdougall was rushing on him, that “he would give him as good as he brought,” or words to that effect; Davis did not take up the stick, until Macdougall rushed at him; dies not know whether Macdougall clenched his fist, at that time, or not; Davis could only have got away by jumping over some bags, which were behind him; Macdougall had, that day, in the presence of witness, drank two tumblers full and a pint pot full of red wine; he had drank but one tumbler full, when Captain Fenton saw him.

Cross-examined by the prisoner. - I did not ask you for the loan of a pair of trowsers that morning; you did not ask me how my clothes came to be torn; I did not tell you that I had been so drunk the night before, as not to know how the accident happened, nor did I miss any wheat that morning; I did not quit the house at all after the corpse was laid upon the sofa; I was not at all in liquor when Davis and Macdougall quarrelled; all I drank, that day, did not exceed a tumbler of wine.

Dr. F. Sharland. - I remember being called upon to examine the body of the deceased; I found the skull fractured, and a triangular portion of it pressing upon the brain; there was no abrasion of the skin, nor any external mark of violence; I should imagine the injury I have described to have been inflicted with such an instrument as the one now produced.

The prisoner, in his defence, denied striking the deceased, and stated, that his character would, upon investigation, be found far superior to that of the witness Littlehales; he further called for the evidence of William Patterson, to prove that Littlehales struck the deceased, and not he, the prisoner.

His Honor, in summing up, directed the attention of the Jury to the following points:- First, did the deceased die from the effects of liquor, or from that of the blow? Secondly, was the last witness intoxicated, on the night in question? And thirdly, did the prisoner strike the blow, or some other person? His Honor then recapitulated nearly the whole of the evidence, and explained to the Jury, that, in the eye of the law, a man was held guilty of manslaughter, if (in the event of his being attacked) he did not, before attempting to repel the aggressor, with a deadly weapon, retreat as far as circumstances will admit of.

The verdict appeared to give universal satisfaction, and His Honor remarked, that the prisoner’s police character stood remarkably clear, exhibiting only one trifling offence in the course of eleven years.

[1] See also Hobart Town Courier, 12 June 1840; Hobart Town Advertiser, 5 June 1840. According to AOT SC 41/5, p. 55, the charge was killing and slaying.