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Colonial Cases

United States v. McKenna, 1883

[manslaughter]

United States v. McKenna

United States Consular Court, Shanghai

14 July 1883

Source: North China Herald, 20 July 1883


14th July
CHARGE OF MANSLAUGHTER.
 John McKenna, Chief mate of the American ship Obed Baxter, was brought up on a charge of manslaughter.
  Inspector Fowler appeared to prosecute.
  Mr. Shufeldt, Clerk of the Court, read the charge as follows:-
The United States of America v. John McKenna.
 John McKenna, a citizen of the United States, and within the jurisdiction of the court, is accused by this complaint, made upon the oath of Wm. Fowler, of the crime of manslaughter, committed as follows:-
 The said John McKenna did, on the 12th day of July, 1883, in the harbor of Shanghai, unlawfully and feloniously kill Chang Hsiao Tu, by pushing or shoving him from the rail of the American ship Obed Baxter, causing the said deceased to fall a distance of about fifteen feet, striking as sampan, and breaking his neck and fracturing the skull of the deceased in the fall, from the effects of which the deceased died instantaneously.
(Signed) William Fowler.
Subscribed and sworn to before me, this 12th day of July, 1883.
(Signed) O. N. Denny, Consul-General, Acting Judicially.
  His Honour - What have you to say to the charge?
  Prisoner - Well, I had no intention of killing that man. I asked him several times to get over the rail; and then when he was getting over the rail he stood there and laughed and went on in Chinese.  Of course I could not understand what it was he said, but I said "Go," and put my hand on him.  I did not give him a shove; I only put my hand on him like this (putting his hand lightly on the gaoler.)
 His Honour said the trial would be fixed for Monday July 18th, at 2 o'clock.   
  Prisoner - The gangway on the side he was on was not intended for a gangway.  The ladder was only put up there for the ballast men; and if he had come round to the proper gangway nothing would have been said about it; but they steal round there and bring goods on board and I don't know who they are.
  His Honour, with the assistance of the Clerk, then proceeded to select by ballot the names of American gentlemen to act as associates.  Several gentlemen whose names were drawn were stated to be absent.  On the name of Mr. D. C. Jansen being drawn,
  His Honour asked - Do you know Mr. Jansen?
  Prisoner - No Sir.
  His Honour - He keeps the Astor Houser.  Have you any objection to him as an associate?
  Prisoner - No Sir.  I have no objection to any of them.  I am not acquainted here in Shanghai at all.
 Mr. D. C. Jansen, Mr. G. G. Hopkins and Mr. W. B. Bain were selected as associates.
  The prisoner was then removed in custody.

16th July.
Before O. N. Denny, Esq., Consul-General, Acting Judicially, and Mr. D. C. Jansen and Mr. G. G. Hopkins, Associates.
CHARHE OF MANSLAUGHTER.
  John McKenna, chief mate of the American ship Obed Baxter, was brought up on a charge of manslaughter.
Inspector Fowler appeared to prosecute.
  Alexander Tilman was first sworn.  He said he was a Steward on board the American barque Obed Baxter.
  His Honour - What position does the defendant hold on that vessel?
  Witness - Chief Officer.
  What occurrence took place on board that vessel on the 12th inst.? - I saw the defendant shove a Chinaman overboard, Sir. - At least he did not shove him overboard, but he gave him a push like that (demonstrating). And he missed his balance and fell overboard.
  What position was the defendant when you first saw him? - He was sitting on a chair on the starboard side of the booby hatch.
 When did you first notice the deceased? - When he was standing by the main hatch, on the main deck.
  What did you see the defendant do? - He went forward to see where the sampan man was who belonged to the ship, Sir, to give him a scolding for not going ashore for him.  Then he came up again and turned his head round and saw this other Chinaman who he thought was selling liquor to the crew; he asked who that was, and then he told him two or three times to go over; and the Chinaman turned round and said something to the defendant and the defendant told him to go over, and gave him a shove like that (demonstrating) and he went right over the rail.
  What was the deceased? - He was a bumboat-man.
  What is a bumboat-man? - He has got a lot of things to sell; they call them bumboat-men.
  What did he come on board for? - He came on board to get his money for some geese I bought of him a few days before.
  You had not paid him? - No; and I told him I could not pay him that day unless he had change for a ten-dollar note.
  He was waiting for his money? - No, because I told him I could not pay him unless he had change for ten dollars.
  His Honour - State broadly all the defendant did.
  Witness -He was sitting in a chair, and he slewed his head round and saw the Chinaman down on the main deck by the masts, and he wanted to know who that was.  Before any body answered him, he went to see who it was, and he told the man three times to get into his boat.  Just as the Chinaman got to the rail, the defendant said something again and the Chinaman turned round to look at him and he gave him a shove and he went right over the rail.
  Where was he? - He was on the main deck.  The bumboat-man went into the poop from the main deck, and then from the poop he went over to the rail.
  What means was there for his getting over? - A rope ladder, Sir,
 What position was the bumboat-man in when the defendant pushed him? - He was standing about like this, turning his head like that. (Defendant placed himself in the attitude of the bumboat-man.)
  Was his foot over the rail and on the ladder? - No Sir; his foot was not on the rail; he had one foot cocked up like that.
  Where did the defendant put his hand? -On the man's shoulder.
  How did he push him? - Gave him a shove like that. (Giving a slight push.)
  How was the bumboat-man standing? - He had his hand on the rail.
  Did you see the bumboat-man afterwards? - After he fell into the boat. - Yes.
  Did you go over and examine him? - No.
  You saw him from the deck? - Yes.
  What position was he in? - He was lying with his head resting on a kind of seat.
  He was dead, was he? - I do not know.
  He did not move? - No, Sir.
Was there blood about his face? - Yes, Sir, there was a little blood about the face.
  What time did the defendant come on board? - About fifteen minutes past twelve.
  How long was it before he noticed the bumboat-man? - About five minutes.
  What time did he leave the ship before that? - About half-past seven the night before.
He had not been back since that? - No, Sir.
Was the captain on board? - No, Sir.
  Was the defendant under the influence of liquor, did you notice, when he came on board? - No, Sir.
  He had not been drinking? - I do not know whether he had been drinking; he did not act as though he was under the influence of liquor.
  Where was the captain? - At the Astor House.
  He has not been aboard for some time? - No, Sir.
  The ship was in charge of the mate? - Yes, Sir.
   This occurred on the 12th of this month, in the harbour here? - Yes, Sir.
  Do you know the name of the bumboat-man? - No, Sir.
  His Honour (to the defendant) - Do you wish to ask this witness any questions?
Defendant - Yes, Sir. (to witness) - Are you sure that the bumboat-man did not have one leg over? Did he not stoop with one leg about half way over the rail?
 Witness - He had it about like that (putting his knee on the table) -when I saw him, Sir.
William Hathorway, second mate of the American barque Obed Baxter was then sworn.
 His Honour - Were you on board the Obed Baxter on the 12th inst? - Yes, Sir.
She is lying in the harbor here, at Shanghai? - In the lower harbour, Sir, abreast of the new docks.
Do you know the defendant? - Yes, Sir.
What is his occupation? - He is Chief Officer of the barque, Sir.
Did you see the defendant come on board that day? - Yes, Sir.  He came up the gangway and asked me the timer of day.
  What time was it? - 15 minutes past 12.
 Did you see him having any difficulty with a Chinaman on board?  Yes, Sir.  I saw everything that went on, Sir.
His Honour - Now begin and state minutely everything you saw.
  Witness. - Well, Sir, the defendant came and spoke to me and asked how everything was going on board the vessel, and I told him.  He sat down in a chair and spoke to me for two or three minutes.  Then he got up to see where the sampan man was, to ask him the reason why he did not fetch him. The sampan man made some excuse; and then the defendant saw this Chinaman and a sked me what he was doing there.  I said I supposed he was a bumboat man, and he said, "Drive him out of the ship.  We don't want any more liquor on board."  He told the man to go out, and the man said something in Chinese and did not offer to move.  The defendant told him five or six times to go over; but he laughed at the mate and was quite aggravating.  He got to the rail, just one foot over the rail and put it on the step of the ladder.  It was not the proper gangway; we had it there to save the workmen going over the paint; it was only temporary. He said something in Chinese - I could not understand what it was - and the mate gave him a shove with one hand.  His foot was against the step of the ladder, and he fell down, Sir.  That is all I saw at the time.
How long had the mate been absent from the ship? - He went ashore at about 20 minutes to 8 or half-past 7 on Wednesday night and returned at 15 past 12 Thursday, about sixteen hours and a half.
Had he been drinking? - I could not say whether he had any drink, but he did not seem under the influence of drink when he came aboard the ship.
  Where did you next see the bumboat-man? - I walked across to the rail to see whether he fell into the water or into the boat, and he was in the boat.  A man was sitting him up in the sampan.
Did you go down to see? - No.
You remained on deck? - Yes.
Did anybody go down? - No, Sir, The man shoved the sampan off from the side at once.
Did the mate go down? - No Sir; he could not.  The man shoved off from the side at once.  The mate buttoned up his coat and said he was going on shore to report it.  That is what he told me; and he left the ship.
Is the position that the bumboat-man was in - in the act of stepping over the rail -any one would have broken his neck with that push? - Anyone would be liable to falloff with that push, but he did not push him hard at all; but was a very light push.  The man was very aggravating.  You see about a do?en of them every day, keeping the men from their work, and you have to be very strict with them.
  Why are they allowed to come up? - Well, you can't be everywhere at once, Sir; they come up all over the deck - shoemakers and tailors and everything else.  If I had seen him there, I should have ordered him off the deck myself, but I did not notice him.
You did not know whether the man was dead or not when you saw him in the sampan? - Well, I do not believe he was dead, not quite, Sir.  I believe he died on the way up here.
 Was there anybody else on deck besides the defendant and yourself and the steward? -No Sir, all hands were at dinner.
  Where was the sampan man that the defendant spoke to? - In the galley getting his dinner, Sir.
  He did not see it? - There was nobody at all except me and the steward - No Chinamen at all.
At the time the bumboat man fell overboard, what did the defendant say? - He said he was sorry for it.
  Sorry for what? - Sorry for his falling.  He said he never meant for him to go over.
  You say you did not examine to see whether the man was dead or alive? - No Sir, I did not.
  And that the mate did not? - No, Sir.
  And you say the mate said he would go ashore and report it? - Yes, Sir.
  Report what? -Report that the man had fallen overboard and hurt himself, because you could see the blood over him and the boat.
  He did not know whether the man was dead or not? - No, Sir.
  You are sure of that? - I am sure of it, because he asked me if I thought the man was dead, and I told him no; I did not think he was.
The mate did not go near to see whether the man was dead? - No, Sir.
  Did he say that he was going ashore to report that the man had killed himself? -No, he said he was going to report that the man had hurt himself.
  Why did you not go to see whether the man was dead or not! - I was too much excited to think of it.
You did not take sufficient interest in the affair, either of you? -It was more excitement than anything else.
His Honour - One would think from the way you treated it that it was a matter of no moment. You never examined to see whether the man was dead or alive; it was a matter of little moment.
  Witness - Well, if I did go I would not render any assistance, Sir; I could not do any thing for him.
CHANG AH-CHUNG was then called and examined through two Chinese interpreters.  He cried several times while giving evidence as to the death of his partner.
His Honour - ask him what his business is?
  Interpreter - He was a partner with the deceased in the bumboat business.
  What was the name of the deceased? - Chang Hsiao Lu.
Where was he on the 12th of this month? - He was selling vegetables near the American ship there.
Did he go to the American ship? - Yes, he went to the ship; but he did not go on board of her.
What did he go there for? - He went to collect payment for six geese which he sold to a man on the boat.
Did his partner go on board?- Yes.
 What was the next thing he saw or heard? - He heard a noise and he saw his partner pushed
backwards, and there was blood on his head, and soon after he fell into the boat.
  Did he see that? - Yes.
  Mr. Jansen - Ask the man again, did he see blood on him when he was on deck, or when he struck the boat?
 Interpreter - He had blood there before he fell.
  His Honour - Did he see him fall?
  Interpreter - He says the foreigner pushed him down.
  Where from? - From near the head of the stairs.
  Where was the bumboat man when the foreigner pushed him? - Where was he standing? What position was he in? - On the edge of the ship, near the edge of the ladder.
  He next saw him down in the boat, after he fell, did he? - He saw his partner fall into boat. He went and washed the blood off him and found him dead.
  Then what did he do? - He did not do anything, except take care of the body.
  The body was in the boat when the foreigners came to examine it, was it? - The body was in the boat, near the jetty.
  Dies he remember the foreigners coming down to examine it? - He does not recognize them.
  Did he see any foreigners come down to the jetty to see the body? - Yes.
  How was the boat made fast to the ship? - Tied to the ladder.
  After the bumboat-man fell down, did the witness untie the boat himself? - Yes.
  As soon as he had examined his partner and washed the blood off his face, did he untie the boat and push it off immediately after that? - As soon as he found his partner was dead, he went ashore to find the master of the foreigner.
  Did he say anything to the men on board the vessel - that the bumboat-man was dead, or anything of that kind! - No.
The witness says he saw the foreigner push the bumboat-man overboard.  Ask him to state how he pushed him.  Was it with one hand or both? How did he push him from the rails? - With both hands.
  Where did he put his hands? On what part of the bumboat-man's body? - His partner was standing outside the rails and the foreigner pushed his partner on the upper part of his body.
  Did he put his hands on the back or the front of his body? - The front.
  What had he for sale in the boat - tell him to state everything he had for sale? - He had nothing saleable on board the boat that day.  He went to sell things on previous days.  He sold some geese the day before, and he went to get payment.
  Defendant - I should like to ask one question.  If I remember rightly he stated that the man was bleeding when he fell.  I should like to ask the witness where he was when the man fell.
  Interpreter - He says he was in the after part of the boat.
  His Honour - Was the boat covered over? - No cover.
  Mr. Jansen - Has he got a sail? Yes he has got a sail and he has a rain cover in the middle of the boat.
  His Honour - Then he has got a cover in the boat? - Yes.
  Did the deceased strike on the forepart of the boat? - Yes. As soon as he heard the fall he rushed to the fore part.
  Was he under the cover of the boat at the time the deceased fell? - No; he was outside cooking.
 Then he could see the bumboat-man pushed? - Yes, he saw the push.
  The Defendant, in answer to His Honour, said he had no other questions to put to the witness.
  Dr. Henderson was then called and sworn.
  His Honour - On the 12th day of this month were you called to examine a corpse in a small boat near the jetty?
 Witness - Yes.
  I will ask you first whether you recognise the last witness, as having seen him at the time? - Yes; he was on board in charge of the boat.
  His Honour - I will ask you to state now what was the result of your examination of the body?
  Witness - The man had an extensive fracture of the vault of the skull; and he had a dislocation, or a fracture, of the neck-bone - it is impossible to determine the last point without cutting down to the bones and that, of course, I did not do.
  His Honour - But you as careful an external examination as possible?
  Witness -Yes. There was a cut on the vault of the head, through the soft part, so that one was able to pass one's finger down to the brain, which was laid bare.
  His Honour - With such injuries as these, how long would it be before death would ensue?
Witness - I think a double injury like that must have killed him on the spot.
 His Honour - Instantly?
  Witness - Yes; death must have been instantaneous.
  His Honour - Did you examine the boat? - Yes.  I saw blood on the bottom of the boat.  I examined the rest of the body to see if there were any other injuries, and I found that there were no injuries excerpt those I have described.
His Honour - Your profession is that of a Surgeon and Doctor of Medicine?
  Witness - Yes.
  His Honour - It is in evidence, Doctor, that the deceased was pushed form the railing of the vessel Obed Baxter, now lying in the harbour of Shanghai, and that he struck on the sampan.  Do you think that these injuries could have been made in any other way than by such a fall?
  Witness - What was the height?
  His Honour - About fifteen or sixteen feet.
  Witness - The fall would have been sufficient to cause these injuries, I think.
  Captain Obed Baxter was next called.
  His Honour - You are master of the American ship Obed Baxter?
  Witness - I am.
  Do you know the defendant? - I do.
  You have been on shore for some days, have you not, Captain? - I have.
  On account of ill-health? - Yes.
  Whom did you leave in charge of your vessel? - Mr. McKenna, first officer.
  What were your instructions to him? - To carry on the ship, as nearly as I should, as he possibly could; to keep account of the cargo, and to keep everything as right as he could during my absence.
  His Honour - I will ask you if the defendant reported to you on the 12th of this month any occurrence that took place upon your ship? - Witness - Was it the 12th? I never took any notice of the date. He came to me on shore.
  What did he say? - He told me, "I do not know, but I believe I have been the means of killing a Chinaman. The Chinaman is dead," he said, "and I have come directly ashore to report it to you." I never asked him for any particulars as to how it was done; I told him to come directly here (i.e. to the Consulate General) and he did so.
  Was he under the influence of liquor? Well, I should think he had been drinking for this reason, if for no other; he was not in a condition that I could tell anything from his actions or speech, but I expected that he would have been on board in charge of the ship while I was away, but I found he had been on shore and never reported himself on board ship till next day; and for this reason, and for this reason alone, I thought he had been drinking.
  Is he in the habit of getting under the influence of liquor? -Never to my knowledge had he taken a drop of anything up to that time since he left America.
  Has he always been faithful and well conducted? - He has always done his work as well as he possibly could, and tried in every manner, I think, to please.
  It is in evidence given by the steward that the defendant left the ship at half past seven, or thereabout on the night before, and did not return till a quarter past 12.  Is that the absence you refer to ? - Yes, Sir.
  That was without your permission? - Yes, but he had dropped me a note the night before asking for money, and at the same time asking if he could go ashore.  I sent him the money and did not make any reply to the note.  He no doubt took it for granted that he could go ashore, as I did not refuse.
  His Honour asked if there were any more witnesses.
  Mr. Fowler said he had a sampan man, and a tailor who were on board; but they saw nothing of the occurrence. They could, however, speak to the excited state that the defendant was in, in ordering the man away from the vessel.
Foo, tailor, was then called.
His Honour - - You savee the oath?
Witness - Yes, Sir, I speak true.
Do you speak English?  - Very good, Sir.
Were you on board the American ship Obed Baxter on the 12th - last Thursday? - Yes, about half past twelve.
  What were you doing there ? - I make sell clothes.  I go make mend clothes.  Was the defendant on board? - He came five minutes after me. He makee swear at sampan man.
  Witness repeated some strong language which he said the defendant applied to the sampan man. He said he ran away and went into the forecastle; he was too much frightened of the defendant to stay on deck.
  His Honour -You did not see anything else then?
  Witness - No; l suppose I come out, he fightee my.
  What made you think he would strike you? - Because he said he would chuck all the Chinamen overboard; so I stopped in the forecastle; I was afraid to come out.  I heard a bobbery and I asked the sailors what was the matter with the mate, and they say he throw the sampan man out and sampan man die.
  That is all you know about it? - Yes.
  Defendant - What tailor are you running for?
  Witness - I keep shop myself.
  Defendant - You say you came on at half-past twelve and I came five minutes after?
  Witness - Yes, about, I got no watch.
  Ah-Sung, sampan man, was then called.  He said he could not speak much English, but his Honour said he appeared to speak English well enough to do without an interpreter.
  His Honour - Were you on board the Obed Baxter, American vessel, last Thursday? - Yes, Sir.
  What thing you do? - I belong ship sampan.  I bring mate ashore at half-past seven and ask "What time you come aboard?" He no tell me.
  What time did you come alongside the ship on Thursday? - Seven o'clock.  At 12 o'clock the mate come and sing out for me.
  Do you say it was 12 o'clock? - Yes; I know because they cook dinner.  He make bobbery my - say "D--- fool"," and so fashion.  He say, "You no come for me."  I say, "You no say what time you wantee me come."  He make fight me and I run away in sampan.
  You no see him fight bumboat-man? - No.
  He belong very angry? - I don't know.
  You say he want to fight you? - Yes.
  Defendant asked the witness if he had heard him (defendant) use the bad language imputed to him by the last witness.
  Witness replied - No hear that.
  Mr. J. J. Coffey, Deputy Consul General, was then sworn.
  His Honour - Did you see the defendant on Thursday?
  Witness - I saw him outside the Astor House on Thursday.
  Did he seem to be sober or not? - Well, I thought he was under the influence of liquor; I might have been mistake though; it was a very warm day.  I thought at the time he was.
 Did you judge from his actions? - I only saw him for a moment.
  Did you hear him say anything? - He told me that he was coming to the Consulate to report an accident on board the ship Obed Baxter.  He had already seen the captain, I think.
  What did he say to you? - He said a man had fallen down the hatchway.  I asked if he was killed, and he said he did not know, but tho0ught that he was.  I asked him to go down to the Consulate at once.
  Did he say anything about pushing him? - No, I don't think so.
  Mr. Jansen - Don't you think it might have been excitement instead of drink?'
  Witness - Yes, I say it might.  I thought it was drink when I saw him first, but I may have been mistaken.
  Mr. Jansen - His manner was not so very strange that it might not have been excitement?
  Witness - Quite so.
  His Honour (to defendant) - According to the law, you have the right to offer yourself as a witness in your own behalf.  In doing so you are subjected to all the rules that any other witness in a case is subjected to.  You will have to answer questions, speak the truth, and so forth.  Do you desire to offer yourself as a witness?
  John McKenna, the defendant, was then sworn.
  His Honour - What is your occupation?
  Defefdant - Chief officer of the Obed Baxter.
  American ship now in this harbour? - Yes.
  Was that your business on the  of this month, Thursday last? - Yes, Sir.
  You were on board the ship then? - I was on board at the time this happened.
  His Honour - Go on, and state now fully all that occurred in reference to the death of the bumboat man, as testified to here today.
  Defendant - Well, before I pushed the man away from the vessel, I first saw him walking on the main deck, going forward.  I sung out to him and he turned round.  I said "What do you want? Get over the side, Go on!" He stood there three or four minutes, and I again told him to "go on."  He came aft and stood at the break of the poop.  I said "Go on; go on."  When he was getting one leg over the rail, he turned and said something.  I said "Go on." He  said something and laughed in my face, and stood there looking at me, and groping his way behind him.,  I was standing with my side to him, and after he put his foot on the ladder, I said "Go on: and out my hand on his shoulder, and directly I put my hand on him he fell.  That's the truth of the thing.
  His Honour - Did you put one hand on him or both?
Defendant - One hand.
Do you say he had his face towards you or his back? - His face.  I thought he was going over the gangway without any more palaver and I was going to leave him; but he stopped to give me back all the cheek he could before he left.
  Was not he making as much haste as he could on that position? - No, Sir.
  How long before this occurred had you come on board? - I should judge it to be about ten minutes; in the neighbourhood of that.
  You were considerably excited when you came on board? - Not at all.
 Not at your sampan man? - Not at all, only I
saw this man was obstinate with me.
  Did you not make after the sampan man? - I sung out his name.  I said "Ningpo Sam" - that is what we call him - "where are you?" He said "Here I am." I said "Get down to your boat," but I never touched the man.
  You were not feeling in a good humour?  I was not feeling in a good humour because I wanted to go to the ship and I went down to the wharf at half-past ten and could not find him.
  What time did you leave the ship the night before? - I cannot say exactly.  It was between seven and eight o'clock
You went off without leave of the Captain? - I wrote a note to the Captain asking him.
  You did not stop to enquire what the bumboatmam was there for? - I asked the second mate.
  What did he say? - He said he did not know.
  You did not think proper to ask the steward then? - No.
  Then you did not know whether he was on board properly, peaceably or how? - You did not know whether he was there legitimately or not? - I asked the proper person to ask, the second officer, who was in charge of the vessel.
  And he said he did not know? - He said he did not know; he supposed it was a bumboat-man.
 And then you ordered him over the side? - Yes.
  Had you been drinking? - Not to feel any effects from it.
  You had been drinking? -I had been drinking in the early part of the morning.
  You do not consider from that, that you were under the influence of liquor? - Not at all, Sir.
  After you pushed the bumboat-man over, and after he had fallen, did you look over to see what position he was in? -I saw that his partner, or the man who was in the boat with him, was pulling him up- raising him up on the seat of the boat - and he sung out something, but I did not go down to the boat myself.  The boatman sung out something in Chinese, but I could not understand him.  I knew the man was badly hurt.
  You did not go down to examine him? - No, I asked Ningpo Sam, the sampan man, what was the matter, and he said the man was dead.
  Why did you not go down and see? - Well, I did not know that it would do any good for me to go down. I knew that there was an error committed from out vessel and I thought it you would be the best man to decide it. But I don't consider that the man was pushed overboard at all, your Honour.  If he had been watching the gangway, and minding his own business, he would not have fallen.
  Do you think he would have fallen if he had not been pushed? - Going over the way he did, not looking where he was going, he would be just as apt to fall overboard if he had not been pushed.
  His Honour - If he had not been pushed the case would have been clear.  Do not you think it is very dangerous to touch even an experienced person in going over one of these ladders?
  Witness - That is the reason why I was angry with the bumboat-man being there.  The ladder was only lashed up there for the lighter-men.
  It was used for getting on and off the ship? - When the lighter-men had their boat alongside, they could catch hold of the rope, and nine out of ten of them could come on board without using the ladder at all. There was a ladder on the other side of the ship, and anyone having business on board could come by it.
  Do you allow bumboat-men to come up that gangway? - I don't allow anyone unless it is a man I know has business on board.  We have had several instances of the sailors getting drunk on board and can't find out where the liquor comes from. The other day the sailors put a draw bucket over the ship's side, and a bumboat man came alongside, and we believe he put liquor in the bucket.  These bumboat men have dodged us round that vessel every way they could.
  Don't you think you pushed the deceased harder than you have testified to here? - No, Sir.  I could push a man overboard easily if I wanted to; but I did not push that man overboard, I only put my hand on his shoulder.
His Honour - It is not supposed you did it in a malicious way, for the purpose of harming the man.
  Defendant - I think the two accidents happened together, Sir - The shove and the fall.  I think he would have fallen whether he had been shoved or not.
  His Honour - The presumption is that the push caused the fall.  When he fell, did you look over the side of the ship and see where he fell?
  Defendant - Yes, he struck the boat.
  Did he show any signs of life? - None whatever, Sir.  I never saw him move.
  He laid as if he was dead? - Yes.  I never stopped to look at him long.  I knew that the accident was serious, if not fatal, so I went and pout my coat on and then went ashore.
  His Honour - I cannot understand why you did not go and examine him and see whether any assistance could be rendered.
  Defendant - As soon as his partner had set him up on the seat of the boat, he pulled ashore and I could not find out where he went.
  Don't you know that it is dangerous to interfere with anyone not accustomed to use a rope ladder? You know that would cause him to lose his balance and go overboard? - Yes, if I had forced him down the ladder it might have done so; but he was not forced down the ladder.  He had ample time to get onto the ladder and balance himself.
  You say the reason you did not make any examination of the corpse was because you thought it would do no good? - I thought it would do no god. I knew he was badly hurt and that I should have to report the accident anyway.  If I had gone into the boat, I could not understand what his partner said, and I could not ask questions in Chinese.
  Ordinarily, when accidents occur about a ship, is it not the duty of the officers of the ship, especially when they want to act humanely, to make enquiries as to the extent of the injuries received? - It is, most undoubtedly.
I should have thought you would have done so in this case? - I suppose it was my duty; but I did not do it because I thought it was no use going down as I cannot talk Chinese.
  Hs Honour -Is that all you have to say?
  Defendant - That is all I have to say, your Honour.
  His Honour said - We will take this case under advisement until tomorrow afternoon at three o'clock, when judgment will be rendered.
17th July.
  The Defendant John McKenna was brought up to receive judgment.
  His Honour read the Finding of the Court, as follows:-
  The Defendant is upon his trial for the crime of manslaughter, which is the unlawful killing of another without malice expressed or implied.  The distinguishing feature between murder and manslaughter is the presence or absence of malice.  If malice enter into the unlawful act by which death is caused, the crime is murder, but if malice be wanting it is only manslaughter.  And this is of two kinds - voluntary and involuntary.  Whorton defines voluntary manslaughter to be "the unlawful killing of another without malice, as on sudden quarrel or in heat of passions."  An voluntary manslaughter is where a man doing an unlawful act not amounting to felony kills another, or where a person does an act not unlawful in itself, but in an unlawful manner, and death comes from the act.  There are many acts so heedless and incautious as necessarily to be deemed unlawful and wanton, though there may not be any express intent to do mischief, and the party committing them and causing death by such conduct will be guilty of manslaughter.  To instance a case of fast or reckless driving in a crowded thoroughfare, if another is driven to death the person causing it will be guilty of manslaughter, for it is the duty of every man who drives a carriage to drive it with such care and caution as to prevent as far as is in his power any injury to other persons. And if death be caused by the rapidity of the driving it is not answer that the driver called out to the deceased to get out of the way, for one person has just as much right to the thoroughfare as another. In other words, an act, although not unlawful in itself, may be performed in a manner so criminal and improper as to make the party performing it, and in the prosecution of the purpose causing the death of another, guilty of felony.
  From such a standpoint we are compelled, from then facts elicited upon the trial, to view the case under consideration, and to hold the defendant John McKenna as guilty of involuntary manslaughter in causing the death of Chang Hsiao Tu, on the 12th inst.  It appears from the evidence that the defendant was at the time the chief officer of the American ship Obed Baxter now in the harbour of Shanghai; that by reason of ill-health the captain was absent on shore, leaving the vessel in charge of the defendant; that on the 11th inst. Between 7 and 8 o'clock the defendant, without permission of the master, went on shore and did not return until the next day at about 1/4 past 12 o'clock.  He admits that he had been drinking in the morning, but says that he was perfectly sober when the fatal occurrence took place. He admits also that he was more or less excited at the time because of the ship's sampan man not being in waiting to take him off thereby causing his absence from the ship longer than it otherwise would have been; and it appears from the statements of the sampan man himself that the defendant's conduct was such towards him that he made off in his boat to avoid further trouble. In this frame of mind the defendant, a few minutes after his arrival on board, looked around, when he saw the deceased standing on the deck near the mast and enquired of the second officer who that Chinaman was and what business he had on board, when he was informed that he was a bumboatman.  The defendant then ordered the deceased to go over the side of the ship, remarking that he would not allow these people to come on board to sell liquor to the crew.  It appears that this order was repeated three or four times before the bumboatman started off, which may have been owing to the fact that the defendant could not make him understand what he wanted.  At all events the deceased obeyed the defendant's orders with sufficient promptness not to require any violent measures until he was at the ladder and in the act of stepping over the rail, when the defendant thought he was not making as much haste as he should, and gave the deceased a shove, with the fatal results already described in the evidence.  The deceased was on board, it appears, for a lawful purpose. He had sold the day previously some provisions to the steward of the ship, and had returned to get his money, which of course was not known to the defendant, owing to the fact that he was absent from his post of duty when the deceased came for his pay.  Notwithstanding the deceased went on board for a lawful purpose, yet it was the right of the defendant, after he returned to the ship and assumed charge of the vessel, to order the deceased or anybody else he found on board not belonging to the ship to go over the side, and to use sufficient force to hav e his orders obeyed, but no more.  In this instance the defendant did not consider it necessary on the deck of the ship, where a reasonable amount of force might have been employed without endangering life or limb, to use any violent measures in order to hasten the departure of the deceased as he appeared to be obeying as promptly as he could; but the defendant, most unfortunately for himself as well as the deceased, chose to use force at the very moment of all others when it ought not to have been used - just at a time when the deceased was in the act of stepping over the rail on to the ladder, when even a slight push would cause him to lose his balance and fall overboard, just what happened to deceased.  The defendant says the reason he gave the push was because he was not moving as fast as he should and that he was laughing at him.  The fact is, it is impossible for one not accustomed to the use of the ship's ladder to make haste in such a moment, and no one knows this better than the defendant, but we are of opinion that it was not so much the apparent tardiness of the deceased in getting over the rail on to the ladder which caused the defendant to push him, as it was his irritability caused by his prolonged stay on shore without leave, and when he got ready to return finding no sampan in waiting for him, added to the fact that he had been drinking more or less during his absence.  Under such circumstances, the defendant doubtless pushed the deceased harder than he thinks he did; but be that as it may, it was sufficient to cause his fall and death, an act which we are unable to find an excuse for. But as the act was not a malicious one, no intention can be imputed to the defendant to destroy the life of the deceased, and doubtless no one regrets the sad occurrence more than he does; but at the same time the defendant has acted in such an unlawful manner as to cause the death of a human being, which the law pronounces manslaughter, and of which crime we find the defendant, John McKenna, guilty.
 His Honour then said - Mr. McKenna, the punishment in this case is fixed at a term not exceeding three years' imprisonment and a fine not exceeding one thousand dollars.  Have you any reason to offer why the judgment of the Court should not be passed at this time?
 Defendant - It seems to me a very unjust one.
  His Honour - Well, that you must attribute to the law, not to us. The law makes your act a criminal one, and it imposes the lowest punishment which may be imposed on any one who contributes in any way towards taking the life of a human being.  It is very evident that had it not been for your action in pushing him the deceased would not have fallen.  By the fall he was killed, and the fall was caused by your act, and you are responsible.
  Witness - I was not at all excited at the time; I was never excited on account of that man.
  His Honour - You are not held to have acted through malice, and you are not accused of wanting to take his life; but it is a case in which the death of a man is traceable to your act, and in which you must be held responsible. We have considered the circumstances of the case, and we are prepared to announce the judgment, if there is no reason why it should not be pronounced at this time.  Have you any reason to offer?
  The defendant said he had none.
His Honour then passed sentence as follows:-
  John McKenna, after a carefully inquiry into the facts and circumstances attending the charge of manslaughter filed against you, the Court has found you guilty as charged; and while the circumstances do not show the case to be an aggravated one on your part, yet they do show clearly that it was by your unlawful act that the deceased came to his death. The judgment of the Court is that you be confined in the U.S. Consular Gaol at Shanghai for the period of one year, and that you pay a fine of one hundred dollars and the costs of the trial.
(Signed) O. N. Denny, U.S. Consul-General, Acting Judicially.
Finding and judgment assented to by us:- D. C. Jansen, G. G. Hopkins, Associates.
 The prisoner was then removed in custody.

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