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Colonial Cases

R. v. Dowd, 1880


R. v. Dowd

Supreme Court for China and Japan
French C.J., 26 August 1880
Source: The North China Herald, 31 August 1880




Shanghai, 26th August.

Before G. FRENCH, Esq., Chief Justice.


Charge of Feloniously Wounding.

   The prisoner, a native of India, and one of the crew of the British brig Emily, was charged with feloniously wounding Henry Gordon Wharton, the second mate of that vessel on the 3rd inst., at sea, within 100 miles of the coast of China.

   Mr. MYBURGH, Acting Crown Advocate, appeared for the prosecution.

   Prisoner pleaded "guilty."

   His LORDSHIP said that the point as to whether the vessel was within 100 miles of the coat of China at the time the assault took place was most material, and he should therefore direct a plea of "not guilty" to be entered and the prisoner to be placed on his trial in order to show that the Court had jurisdiction in the matter.

   The following gentlemen were then empanelled as a Jury:- Messrs. Charles Hay, F. J. Maitland, W. Buchanan, C. Lyall Grant, and Drummond Hay.

   Mr. MYBURGH briefly detailed the circumstances of the case, and then called the witnesses for the prosecution.

   HENRY GORDON WHARTON, deposed - I am the second officer on board the British brig Emily, registered at Sydney.  I remember the 3rd of this month.  I was on board the ship on that day.  I cannot tell the latitude and longitude in which the ship was.  She was not within sight of land.  I cannot say when we arrived in sight of land.  I was second officer, but was not allowed to navigate the vessel.

   His LORDSHIP said that the root of the jurisdiction of the Court lay in the fact of the vessel being within 100 miles of the coat of China when the affair took place.

   Witness resumed - The captain called out to "wear ship" about four o'clock in the morning.  It was dark then.  After the vessel was round I was ordered to haul taut the braces.  I saw it done.  The next thing was an altercation between me and a man named "Charles."  He used an abusive expression, when I pushed him on one side, and he struck at me.  I struck him again.  I had not any quarrel with him that day.  About a week out from Sydney we had a dispute, which was very slight.  I reported the matter at the time to the Captain.  When prisoner struck me, I was partially stunned, but I got round the wheel.  I saw him with his hand up-lifted and heard him curse me.  I could not see whether he had anything in his hand.  The man at the wheel told me to look out for myself, and I then felt a blow on the arm.  The prisoner struck at me.  He stabbed me in the left arm.  For about w eek the wound interfered with the motion of the fingers.  I have no doubt it was the prisoner who cut me.  I do not know whether he tried to stab me again.  That is the shirt (produced) I had on, and I wore a serge coat over it.  I do not remember when the ship reached Shanghai.  We took a pilot on board a week or ten days after the assault.

   By a Juror - The wound was not healed when we arrived at Shanghai.

   Mr. MYBURGH said he would produce the ship's log-book to show when the vessel arrived.

   JOHN FLANNIGAN, deposed - I am a seaman on board the British brig Emily.  I remember the 3rd inst.  On that day, about 4 a.m., we were about 100 miles from the coast of China.  I could not say whether it was inside or outside that distance.  We were not within sight of land.  We got within sight of land three days after.  I could not say what land it was.  We should be 18 to 20 miles from land when we sighted it. We had not then taken any reckonings.

   At 4.15 a.m. we were hauling taut the main topsail braces when the officer called out "belay."  The rope was slack and Mr. Wharton had an altercation with "Charles."  The prisoner struck the officer two blows in the eye.  I went and took the prisoner away; when I let him go he rushed to windward and drew his knife.  I had nothing, and went to get something to defend myself, as I thought he was going to attack me.  He struck Mr. Wharton two blows in the eye without any cause.  I did not see the prisoner strike the officer with the knife.

   JOHN HAMILTON, deposed - I am a seaman on board the Emily.  I remember the morning of the 3rd August.  I was at the wheel.  The second mate was stabbed.  I saw the prisoner aim a blow at his chest, which the mate received on the arm.  I told the mate to come behind the wheel.  I saw prisoner strike the blow.  He did not repeat it.  It was aimed at Mr. Wharton's chest.  The mate's arm was bleeding, and the blood ran on the skylight and on the deck.

   By the prisoner - I was at the wheel when the blow was struck.  The mate struck no one.  He pushed a Malay away from the brace with his open hand.

   ARTHUR MACK, sworn, said - I am a Municipal constable.  I arrested the prisoner on a warrant from this Court.  I told the prisoner when I arrested him that I took him into custody on a charge of wounding the second mate.  I said he need not tell me anything unless he thought proper, as it might be used in evidence against him.  I said that before he said anything.  He then said "I have do, but no have do all same proper."  On the way to the station he said that he had the knife in his hand, when the mate squared off to fight him and struck his arm against the knife.  Nest morning he said that he served a two years' term at Melbourne for stabbing a man who stole his ring at Williamstown, Australia.

   His LORDSHIP expressed his opinion that the point as to the position of the ship at the time in question was not satisfactorily settled.

   Mr. MYBURGH said he had sent for the chief mate of the ship, and asked an adjournment -

   His LORDSHIP - To bolster up the case for the Crown.  You should have got your witnesses before.  You have asked him to come here since the Jury were sworn.

   Mr. MYBURGH asked in the interests of justice for an adjournment till two o'clock.

   His LORDSHIP said there was a strong suspicion in his mind that the occurrence happened beyond the jurisdiction of the court.  It was a most unprecedented application on behalf of the Crown that was made.

   Mr. MYBURGH only asked for an adjournment for half an hour, and added that he had trusted to the evidence in the Court below.

   His LORDSHIP said he did not trust to the evidence given in the Court below.  The Jury might have been satisfied if the question had not been pressed, but when the second mate was pressed on the point he said he did not know anything about it.

   Just at this stage the first mate arrived in Court.

   GEORGE WASHINGTON COLLINS, sworn, said - I am the first mate of the brig Emily.  She is a British ship.  I remember the morning of the 3rd August.  I was on board the Emily.  The Emily was, I should judge, about forty or fifty miles from the land, the island of Video.  That island is forty miles south of the Saddles, not far from Chusan.  My log-book is made up at eight o'clock every morning.  The log produced is signed by me. At 4 a.m. the vessel was only forty-four miles from the coat of China.  She arrived at Shanghai on Wednesday the 11th August.  We had a heavy gale, being in a typhoon for two days.  On the 2nd inst., at noon, we were in lat. 29o 48 N., long. 122. 53o E. Our courses were sometimes to N.E. sometimes to N.W.

   In answer to His LORDSHIP, the Jury said they found that the prisoner was guilty of the offence with which he was charged, and that the wounding took place within 100 miles of the coast of China.

   His LORDSHIP then sentenced the prisoner to four months' imprisonment with hard labour.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School