[manslaughter, boxing – boxing match – criminal law, aiding and seconding crime]

R. v. Kelly, Loire and Cutts

Supreme Court of Van Diemen’s Land

Pedder C.J., 31 May and 1 June 1842

Source: Hobart Town Advertiser, 3 June 1842[1]

            Patrick Kelly; Patrick Loire, and William Cutts, were placed at the bar, the first charged with feloniously killing and slaying Charles Evans, and the two latter for aiding and seconding the crime.

            James McGain was sworn as a witness, and stated he belonged to the probation party at Jerusalem; on the 11th of April last he saw Kelly, and Evans the deceased, they were both standing before the fire; Charles Evans came up with a piece of a curb chain in his hand; Kelly said he knew a man who got seven yeas for stealing a chain, he then asked the deceased if the chain belonged to the Superintendant’s horse, Evans in reply used a very indelicate expression, when Kelly told him to be off out of the hut or he would teach him a little better language; at this Evans struck Kelly when he (the prisoner) returned the blow and took his place again at the fire; Evans then told him to come down to the green and fight it out, the prisoner said he would not go to the green but into the ward, Evans said the ward was too small; in a short time they both went down to the green; in about five minutes he (the witness) went down also, when he saw prisoner and the deceased stripped fighting, with a great many prisoners round them; he continued there until it was all over, he supposed it lasted three quarters of an hour; the last round but one they closed and fell. Evans falling undermost; before they closed Kelly struck Evans under the ear after which he staggered and his eyes rolled wildly in his head; the last round they closed again when Evans a second time fell undermost; the deceased then rose, put his hand to his head, complained of a pain and went off into a fit; the witness said William Cutts was seconding Patrick Kelly by picking him up when down, and Patrick Loire was seconding Evans; after the fight was over the deceased was carried to the hospital; none of the superintendants or overseers were there; he (the witness) considered it a fair fight; the deceased was the heaviest man of the two.

Robert Marshall was examined, and said he saw Kelly and Evans stripped; he then went into the crowd and said they had better give over for Mr. Pursells the superintendant’s son was coming; at that time Evans was sitting upon Lorie’s knee, Kelly was upon Cutt’s knee; he (the witness) went away for five minutes and when he returned Evans was lying upon his right side and Kelly was supporting his head with his foot, he appeared in a fit which induced him to open his shirt collar.

Mr. Irving, the surgeon at the station, said he attended the deceased at the time he was brought into the hospital, he was quite insensible; he found, upon examination, a wound on the top of the right ear and side of the head about 2 inches square, which might have been caused by a blow from a fist or stick; the deceased was brought into the hospital at a quarter to 4 in the evening and died the next morning at 3 o’clock; on the 14th he made a post mortem examination of the head when he found an effusion of blood in both ventricles of the brain, which he considered was quite sufficient to produce death; he allowed the same appearance might have been caused by a fit of apoplexy, but he believed it to be the severe blow which produced them.

Kelly in his defence said he did not want to fight the deceased.

Lorie said he did not go until a quarter of an hour after the fight began when he picked up the deceased to put on his jacket.

Cutts said that he picked up Kelly not thinking any injury would ensue.

The Jury in a short time returned a verdict of Guilty against all the prisoners, with a recommendation of mercy to Kelly, with which his Honor coincided. Remanded for sentence.

Wednesday, 1 June, 1842

            Patrick Kelly, William Cutts, and Patrick Lorie, at the strong recommendation of the jury, received the lenient sentence of transportation for seven years.

Notes