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Colonial Cases

R v. Saunderson [1887]

shooting with intent

Supreme Court for China

Shanghai, 13 January 1887

Source: Supreme Court of China (Shanghai), Judges' Notebooks, Vol. 3 (1880-1893), The National Archives (U.K.), FO1092: 340, p 136

 

Regina v. Gilbert O. Saunderson.

Indictment.  1st Count - Shooting with intent to murder; 2nd Count - Shooting with intent to do grievous bodily harm.

Prisoner arraigned.

Plea - Not Guilty.

Indictment - Assault with intent to do bodily harm.  One Count.

Prisoner arraigned.

Pleads Not Guilty.

[139]

January 14th 1887

Regina v. Gilbert Ormsby Saunderson

(continued from 13th inst.)

Crown Advocate for the Prosecution

Mr. Wainwright for the defence.

Jury sworn: C. B. Clarke, C. Brown, W. H. Short, Robert Mckenzie, A. Coutts/

Crown Advocate opens case for the prosecution.

Difference between provocation & justification

Provocation may reduce offence

Justification another matter

Intent to murder

Grievous bodily harm

[Joint] [purpose] of Prisoner on 2nd Mate.   [139]

Subsequent assault with bodily harm

Belaying pin

Common assault

Calls

Samuel John Morris, sworn.  I am a British Subject & a Civil Engr & Surveyor.  I have made a deck plan of the BS Lewis Burnell.  This is it A.  It is correct to scale with the exception of a slight [????????????] in regard to a room at the stern.  The scale is six feet to an inch.  [????? ???] [????] is a deck house 6.6 high.

XXd by Mr. Wt.  There is a ledge at the entrance to the Fore castle door 2 feet nigh a door sill. [140]  The Bullet mark I was shown and marked the place of with a cross on the plan, was just over the edge of a [Bunk].  The Bullet seems to have hit one of the beams of the roof of the house.

Cornelius Jervis, sworn.  I am a British Subject and was an AB on board the Lewis Burnell.  I signed articles on the 1st [June] in Barbadoes to go down to St. Thomas and join the ship  I was taken on board the ship on 6th June.  I remember the 12th August last.  I was at the Wheel that morning.  I had 8 hours at the Wheel that night, 8 to 12 & 4 to 8.  [141]  I was relieved at the Wheel a few minutes after 8 o'C & went to the Forecastle.  From the time I joined the ship until the 12th August it was the practice of the ship to pump the ship after the watch was over by the retiring watch.  That usually took from 15 to 20 minutes.  There was the oil to be washed off the decks after the ship was pumped.  When I went to the Forecastle the rest of my watch was not there.  Sullivan (the Boatswain) came to me in the Focastle & told me to [142] come out and Pump ship.  I said I am [relieved] [it's] my watch below.  He [asked] me to say I would not.  I did not do so.  He went away & brought the Prisoner with him.  The Prisoner came into the Forecastle and called me a ------ son of B & struck me on the mouth with something in his hand.  I drew out my knife & scratched his arm.  When I scratched his arm he went out of the Fo'castle and I saw him drawing something off his [three] fingers.  I could see it was Brass [143] Sullivan who was in the Forecastle said to me "you used a knife."  I said to him, If you use that you have in your hand I'll [run] a knife to you.  He had a belaying pin in his hand.  I told him he had no right in the Forecastle than I in the Cabin and told him to go out.  He would not.  After this in about 5 or 10 minutes the Capt. came.  The whole watch was then in the Fo'castle.  Some of [144] asked me what was the matter.  I said I had been struck with a belaying pin & knuckle duster.  When I was struck there was no one there but the Mate & myself.  When the Capt. came I was sharing out the sugar to the Watch.  The Capt. came to the door and said Where is that B----r.  I stood up.  He said [out]  come out here.  I asked what for and he said he would show me what for, pulling out a Revolver [145] He came into the Fo'castle and I went under the athwart ship Bunks on the Starboard side, the other part of the Fo'castle.  [There was no cover over.] Capt. caught hold of me by the vest & dragged me to the door.  The vest gave way & he told me to get out.  I asked him what for and he struck me on the top of the head.  He fired at me and the bullet hit me.  I have the wound still (shows it).  I grabbed the revolver & [146] drew out my knife.  I told him to let go or I would cut his hand.  I scratched his finger and he had to let got of it and then ran off.  I grabbed the revolver because I was afraid he would use it again.  I shoved him down on the sill of the door when I grabbed the Revolver.  When I was going out of the fo'castle I tripped over the sill of the door and the revolver went off in my hand.  I asked some of the men if it was the revolver as I have heard that some had had pistols [147 ]and the Capt. had taken them from [him?].  Some time after the Capt had gone about 5 minutes the Mates came.  When I first saw them I was standing on the starboard side of the starboard chain looker.  The Mates were on the opposite of the deck by the Port chain locker.  When I saw the Mates I was standing up with the Revolver in my hand.  I did not know how to use it.  The Mates both asked me to surrender.  I said [148] shouted yes Sir.  I held the revolver out to them not pointing it at all.  They then both commenced to fire at me.  They pointed their revolvers at me.  Mostly pointed at my head I suppose.  I was walking backwards then aft.  The revolver I had did not go off while the mates were forward.  When I was going backwards Captain caught me from behind & threw me on the deck.  The two mates then commenced kicking me on the face and head [head] & Sullivan shot me in the [149] [?????] when I was lying down.  The revolver had dropped out my hand.  I had lost [grip] of it.  They then put me over on my left hand and the Prisoner came behind me & struck me on the head with a belaying pin.  They took me all three and the Prisoner [struck] me again.  He had his [?????] [?????] [???????] [rope] and said Let us hang the B----r here.  The Capt. would not let him touch me then.  I was then put in the [150] Lazarette & aftwds I was let out  [walk] on deck under the Boats and the prisoner said some bad language to me & said he wished he had killed me.

XXd  by Mr. Wt.   I did not say I was at the Wheel from 8 to 12 as well as from 4 to 8.  Only on deck.  They were my ordinary watches.  I did not go to the Wheel till 6 o'C.  At 5.30 we pumped ship for a time & got tired.  We then knocked off and I then said I would not pump ship again out of the watch time.  I do not know [151] whether Sullivan heard it or not.  I had never seen the thing the mate drew off his fingers before not since.  His Back was towards me when he drew if off.  The Capt. sat down on the sill of the door when I [pushed/punched] his back.  I had hold of the barrel of the pistol and he of the Butt.  His back could not [?????] [?????] [???] the chain locker.]  I am certain he fired at me before he touched the sill of the door.  When he [152] fired at me he was about ½ the distance from me that you (Court) now are from me.  I think I only scratched his fingers [??] with my knife.  I am certain I was not touching the butt of the revolver when I held it out to the Mates.  I never at any time pointed the Barrel at the Mates.

   I have never been in the Fo'castle since the occurrence.  The bullet came out of my hand while I was working.  [I have had linseed poultices on.] It came out between my fingers [????] for a 100 days after it was put in.

Re-Exd.  It came out about the 20th Novr.  [153]  We had been pumping about 15 minutes when we knocked off at 5.30.

To a Jury man.

I had the Revolver still in my hand when I was [shot in the face]

None of the officers was near when the Revolver went off in my hands.

John Wood, sworn.  I am AB on L. Burnell.  I remember the 12th August last.  We were then at sea.  Some time after 8 o'C I was at work in the Fore Rigging   I mark the spot C on the Plan A. [154]

I saw the Mates coming forward on the Port side.  Before they came up I had heard a few shots.  I think three.  Not above three.  When the Mates got as far as me I heard them shout to each other come on.  Aftwds I heard the 2nd Mate shout surrender and Jervis answered yes Sir.  I heard the report of two revolvers almost immediately aftwds.  The reports were close together.  I saw the 2nd Mate pointing the revolver just after Jervis said he [155] he would surrender.  He was pointing the Pistol from the Port to the Starboard side and then it went off with a crack.  When the 1st two shots were fired the 2nd Mate was standing at the place marked D on the Plan.  The Prisoner was then out of my sight.  After the first two shots I came forward to the place marked E on the plan and then saw the 2nd Mate walking over to Starboard & aft the place marked F.  The Prisoner was then with one foot on the Starboard hatch & another on the chain locker.  Jervis was about the starboard [other] [156] chain locker (point G on the plan) & was retreating.  He retreated out of my sight.  I then went round behind the [house] to the Starboard side.  When I got round there the Skipper had hold of Jervis.  I saw the 2nd Mate run up and hold out his pistol and say "Die you son of a Bitch," but I did not hear the pistol off.  Afterwards I saw him strike Jervis with the pistol.  Then I saw the Capt fire his own pistol.  The Capt called out don't kill the man.  The Prisoner gave [157] Jervis a violent blow on the head with a belaying pin & again the Capt. said don't kill the man.

Not cross ex'd  (Witness [seeming exhausted?])

Stephen [Thide, sworn.  I was AB on "Lewis Burnell."  I am a Dane.  I remember the 12th August last.  We were then at sea.  At about 8 o'C I was standing on the Port side up against the Windless (place marked H on the plan.)  I remember the mates coming forward whilst I was there.  The Prisoner [158] was one of them.  The came up the Port side.  Each of them had a Revolver.  2nd Mate was first.  Prisoner second.  2nd Mate called come on and Prisoner pulled revolver out his pocket.  I had heard two shots before that.  When Jervis was at the Forecastle hatch there was one shot which went right off in the air.  I heard three shots in all before the mates came forward.  I heard Jervis say when the shot went off in the air "Now I am going to [use] that thing."  Another fellow said he would show him but Jervis did not let him [have]?  After the mates came [159]  came forward the 2nd mate called to Jervis to surrender.  He said Yes Yes Sir.  Then I immediately heard Bang. Bang.  Those Bangs came from the mates revolvers.  They were pointing right up against Jervis.  The two of them together fired 8 or 10 shots. 

   When the mates fired Jervis was in the [????????] of the house at the starboard side & holding his left arm up to his head.  He was holding a revolver down at [160] his side with his right hand.  He walked backwards until he got about the middle of the house.  All this time he was holding the revolver out with his hand towards the mates but pointing it to the Floor.  He never pointed it at them and never fired [???????????] they came forward so far as I know.  When he got to the middle of the house the revolver fell out of his hand.  He [disappeared] forwards and said he was done.  This was outside the house on the starboard aide.  Just before he disappeared the [161] Revolver the mates were firing at him.  After this I walked round the back of the house to the Starboard side & whilst doing so heard another shot.  When I got round the Capt was holding Jervis by the collar and the 2nd Mate also.  Jervis face was covered with blood and there was blood on deck.  The Prisoner took a belaying pin from one of the [rails?]  He walked to the left hand side of the Capt & wanted to bring the belaying pin down [162] down on Jervis's head.  The Capt. tried to stop him but he then went round to the right hand side of the Capt. and struck Jervis a blow with the belaying pin [you could hear] all over the ship.  They put an iron on his hand and the Capt said they did not want [cries] for him & had his [head] under the Hatch.

   Before the Mates came forward I was at breakfast in the Forecastle.  The Capt came forward on the Port side and said Where is the B----r? [163] Then he sent me to the Starboard side and sang out Man the Starboard Fo'castle.  Then he called Jervis to come out.  Jervis asked what for, the Capt said never mind.  Jervis said I'm eating my breakfast.  The Capt. then stepped into the Fo'castle & seized Jervis by the muffler and hailed him to the door.  Jervis got loose again & the Capt drew a Revolver and said I'll shoot you.  I ran [164] out of the Fo'castle to the starboard chain locker.  I could see from there what happened.  I heard a shot, the Capt was then holding a Revolver.  Jervis [jumped] up to the Capt & took hold of the Revolver and the Capt. fell back on the door step with his back on the chain locker.  Then Jervis with a knife in his hand saids let go the revolver or I will cut your hand.  I saw some blood on the top of Jervis head. [165] Then the Capt. let go the revolver & ran out.

   It was 5 or 10 minutes aftwds that I saw the mates come forward.

12.30

Adjnd to [???]30

R. T. R., CJ

Resumed at 1.40

Stephen [Thide]

XXd by Mr. Wt.  It is 12 days ago since I was on board the "Lewis Burnell."  I left the ship on Xmas afternoon.  I did not hear Jervis say anything about refusing to pump the ship before the row.  I went out of the Fo'castle when the Capt. took the revolver out. [166] There is a window in the Fo'castle house.  I could see all that went on inside.  I saw Jervis pull out his knife after the Capt. had shot him.  he carried his knife behind his back in a sheath.  When the Capt. came into the Fo'castle Jervis was sitting down.  When the Capt caught hold of him he was standing up.  I did not see Jervis get under a Bunk.  The Capt was 7 or 8 feet from Jervis when he fired at him.  He was first inside the door.  The door is a little wider than the Witness Box.  The Capt's back was towards me.  I could see his arms.  I saw Jervis draw his knife out.  This was after he got hold of the revolver.  I could not see how many times he struck [167] the Capt with his knife.  I think it was 2 or 3 times.  The Capt. showed me and others his hand after the trouble was finished.  I saw 2 or 3 scars.  I was afraid of being shot & was [ducking] about where I was standing near the starboard side of the door.  The mates were further aft.  I thought Jervis might fire & hit me.  He did not fire.  It was before I got round the house that I heard a shot and Jervis called out "I am done."  I ran round and it may have taken ½ or ¾ of a minute.  Jervis's face was pointing aft & the Capt. had hold of him by the collar. [168] 

   I did not see either of the mates kick Jervis.  I did not see the 2nd Mate strike him after that.  Only the Prisoner struck him with a belaying pin.  I did not see any irons put on him.  The 2nd Mate had the irons but the Capt. said he did not want to put any irons on him.  I saw them take him to the main hatch.  I did not follow them.  He was by the main hatch when I last saw him.  I did not see the Mate come towards him with a cord in his hand.  I never saw the Mate (Prisoner) [use] a knuckle duster nor did I ever see one on board the ship.  [169]

Re-Exd by C.A.  The mates may have kicked Jervis before I got round the house.

To a Jury man.  The Prisoner took belaying Pin from rail on the Starboard side.  I saw him take it out & strike down with it.  It was a wooden belaying pin.

To Another.  I do not think that Jervis picked the revolver up again after it fell out of his hand.  The revolver dropped before I heard the shot.  The shot I heard was when I was going round the house.

To the Court.  Jervis said nothing and did not make any noise either when he was struck [170] with the Belaying Pin or when the irons were brought out or when he was being taken aft.

   I heard him say nothing after he said to the Capt that he was shot.  This was after the Prisoner had hit him with the belaying pin.  His face was all full of blood.

George Marcus Lee, sworn.  I am an American citizen.  On the 12th August last I was Cook & Steward on board the British Ship Lewis Burnell.  On that morning I saw both the mates coming forward on the Port side.  I was then in the Galley. [171] I saw the Prisoner stop in front of the galley door, put his foot up on the main hatch & cock his revolver.  He cocked it against his leg.  His left hand was in a sling.  Whilst he stopped to do that the 2nd Mate passed him proceeding forward.  After that I saw both going further forward.  I aftwds saw 2nd Mate pointing his revolver & heard him singing out twice Are you going to surrender.  I heard somebody singing out Yes but could not tell the [voice]? [172]

   At this time Sullivan (2nd Mate) was pointing his revolver.  I saids this is only a bluff and turned back in the Galley.  [Immediately?] I heard one shot and before I could get out of the Galley I heard Bang Bang 2 shots.  I then saw the Capt running forward on the starboard side.  I went to the Starboard side also forward of the carpenter's shop & as I got there I saw the Capt., Jervis & the 2 mates.  Capt was standing on the watch way with his hand on the rails and Jervis [173] about midships of the [???] retreating walking backwards.  Both mates were following him up each one with a revolver in his hand.  2nd Mate was striking at Jervis with a pistol.  The prisoner then raised his revolver and [apparently] fired at Jervis's head.  Then the Capt. stepped from the watch way & pulled Jervis's collar by both hands.  2nd Mate then struck Jervis with the cylinder [174] of the revolver & it went off at the same time.  All this time the Capt. had hold of Jervis and the [latter] was falling or sliding down.  2nd Mate then fired at Jervis, the Capt having still hold of it.  The Prisoner then went up to Jervis and commenced stamping on him with the heel of his boot.  The Capt said don't, don't kill the man 3 or 4 times.  2nd Mate then commenced kicking Jervis in the face.  Capt said the same thing don't don't.  That was all I saw of that but when Jervis was falling to the deck [175]  I heard him saying "I am done for." 

   I then got out of the way as 2nd mate was coming aft with Pistol & pulling up his sleeves.  I then went back to work at the Galley.

   I have seen knuckle dusters on board the ship in possession of the prisoner.  I am certain of it.

XXd by Mr. Wt.     I saw one set of knuckle dusters in the Chief Officer's hand on the 29th May at the Port of St. Thomas.  It was my birthday, that is why I remember the date so well. [176] I had 18 minutes trial of them.  He used them on me.  I was off duty a week on account of it.  The Capt doctored me.

   The Capt looked on a good 2 or 3 minutes before he advanced and took hold of Jervis. During that time Jervis was retreating but slowly.  The mates were advancing slowly upon him.  During that time the Prisoner fired a shot.  I think there were 6 shots fired that morning.  I did not know at the time that Jervis had been hit in the hand by a bullet. [177]  Jervis was holding a revolver loosely pointing to the deck.  It was fired as though his hand was broken.  I did not see him drop the revolver till he went down himself.  He was down flat himself & was still so when I returned to the Galley.  I did see that the 2nd Mate was trying to fire at him.  I did not think he had any shots left.

Re-Exd by C.A.  I only know of 6 shots.  There may have been more.

To the Jury.  The weather was [fair] but [178] the galley it was difficult to hear.  Do not know who fired the three first shots.  They were all fired after I heard the voice say I will surrender.

To the Court.  I did not see anything of the Prisoner beating Jervis with a belaying Pin, nor did I hear his Jervis's saying anything more than I have mentioned.  From the time I retreated into the Galley to the time I saw Jervis being taken aft may have been nearly 10 minutes.

Case for the prosecution.

Mr. Wainwright opens case for defence and calls  [179]

James Murphy, sworn.  I am a British Subject and Master of the Lewis Burnell.  The Prisoner is 1st Mate.  I had made no order as to when the ship was to be pumped out.  I saw frequently that ship was pumped out by watch after their time was up.  I recollect 12th August.  First I heard of the row was being called by prisoner about 8 bells to dress his arm.  I examd his arm & found a cut in it about ¾ to an inch in length [180] and nearly an inch deep.  It was bleeding badly.  He told me Jervis had done it.  I dressed his arm to the best of my ability & called 2nd Mate to go forward and help me put Jervis in irons.  I had had no trouble with Jervis before since leaving St. Thomas.  I went forward to Lazarette door and called Jervis to come out.  I do not think I called him a B----r.  It is not a word in my vocabulary.  When I called to him he refused to come.  I called to him a second time to come out.  He said What do you want with me out of the Fo'castle.  [181]  I said that's my business not yours.  He again refused to come.  I stepped in the Fo'castle & took hold of him by his muffler to [fetch].  He then drew his knife & cut me on the back of the hand 3 cuts.  I let go and took out my revolver ordering him to drop his knife & come out of the Fo'castle.  He put up his left arm and walked towards me waving his knife sideways.  I stepped back & tripped & fell backwards over the sill of the door.  My Revolver went off but [182] whether it fell out of my hands or not I do not know.  The Pistol went off as I was stepping backwards.  I fell on the sill of the door and my shoulders came against the chain locker.  Jervis reached at me and began cutting at me.  How he got the pistol from me I do not know.  I kicked him away and got out as fast as I could.  He was pointing revolver at my hands and said something like Son of a Bch I'll shoot you or words to that effect.  [183]  I did not see Jervis try to get under his Bunk, nor did I catch hold of him by his vest.  I caught him by his red muffler & nothing else.  I did present my pistol at him & said if he did not come out and deliver up his knife I should shoot him.  At no time had he hold of the barrel and I the butt of the Pistol.  That is not true.  My hand was cut cross ways. 

   As I was going aft I heard a shot of a revolver forward.  When I got aft I told Prisoner and 2nd Mate that Jervis had [184] my revolver & his own knife & that we must get them away from him.  I did not see any marks of Jervis being wounded before I came aft, nor did I see any bullet marks or hear him call out. 

   When Jervis said he would shoot me he was pointing the Revolver straight at me.  After I told the mates to go and get the revolver I went into my cabin to go and get a weapon and then ran forward hearing firing.  That was 3 or 4 minutes afterwards.  I then saw Jervis against the side of the [house].  I took his knife away from him and threw it overboard.  The revolver was lying on the deck.  I went straight to Jervis and didn't pause in the [watch] way.  [185]

   After I threw the knife overboard I took hold of Jarvis.  I can't [really] say how.  I heard one shot fired as I was going forward.  I don't know who fired it and I heard no more aftwds.  I do not remember seeing Jervis being on the deck at all.  I don't remember seeing anybody striking him but the officers were making a rush at him and I told them to desist as I did not want him murdered.  I did not see him struck with a pistol.  I am not sure whether [186] he was struck otherwise.  I did not strike him myself.  I do not know of any one kicking him.  Prisoner did not stamp upon him. 

   There was blood about his hand & three different places, one hand was bleeding.  There was blood on his face. I can only account for the wounds on his hand by saying that he must have got into a skirmish somehow.  I did not see him get any of them.  [I had him put out the Lazarette before I could get a [??????][?????] [for] him.  Never heard anything said by Mate about hanging him.  [187]

    I do not remember seeing the Prisoner strike Jervis at all.  I did not hear any blows.  I put handcuff on his left wrist not on his right as it was swollen.  I exd his hand aftwds & found a shot wound in it between the middle fingers.  I [????????????] the bullet had gone into the palm of his hand.  He never told me at any time that I had shot him.

   Wood is a deserter from the ship so far, so is Stephen [Thide]. [188]

XXd by C. A.

I began the voyage on the 17th Febry.  The Prisoner & 2 others are all that I have left of my original crew & [many] of my second crew have also deserted.  After the 12th August I gave orders that the ship was to be pumped in the Watch.  I have known it as customary to pump the ship after 8 Bells of the last deck watch as often after as before.  I swear Jervis cut me before I drew my revolver at all.  He could not have been below the athwart ship Bunk without my knowing it.  [189]

   I had not my hand on my revolver when I first caught hold of Jervis.  When I got up Jervis both officers made a rush at him.  It is then I said I did not want him murdered as he had given up resistance.  I would swear that the Prisoner did not strike him in my presence.  I do not remember it.  Jervis did say I'm done or I'm shot.

Re-Exd by Mr. Wt.  I think if the prisoner had struck Jervis I must have seen it.  [190]  Jervis said he was done or shot just about the time I got there.

To the Jury.  I did not see Jervis drop the Pistol.  I never saw Jervis fall or the 2nd Mate kick him.  4 shots had been fired out of my revolver before I got it [back].

Michael Sullivan, sworn.  I am actg 2nd Mate of Lewis Burnell.  Have been so since I shipped at St. Thomas about 8 months ago.  I recollect the 12th August.  First trouble was that Jervis refused to pump ship about 8 o'C.  [191]  I ordered him to come.  Rest of watch were pumping.  I went to Fo'castle for him & he refused.  I went aft & told the mate.  Mate & I went forward.  I went to Starboard forecastle & saw Jervis standing up about the middle.  The Mate & I called him to come out & pump ship.  He sd he wd not.  He then put his hand behind his back.  The mate then gave him a shove & he fell back on a chest.  He then drew his knife & stabbed the mate on the left arm.  He stabbed the Mate while he (Jervis) was sitting.  Neither of us had struck him before he stabbed the Mate.  The Mate slewed round & sd "Look out - I am stabbed."  Jervis then told me to look out or he wd stab me.  I then went aft.  The Captain was then dressing the mate's arm.  The Captain after he had finished told me to get some irons to put Jervis in irons.  I went forward & heard Captain ask Jervis to come out.  Jervis sd he wd not come out.  I did not hear [192] Capt call Jervis a "bugger."  The Capt. then went inside the forecastle & got hold of Jervis by his muffler & tried to haul him out.  He then drew his knife & cut the Capt on the hand.  The Capt. then drew a pistol, pointed at Jervis & told him if he did not come out he would shoot him.  He turned round [working] his knife under his arm quickly towards the Capt.  The Capt. retreated fell over the door sill.  The Pistol went off & dropped out of his hand at the same time Jervis rushed at the Capt with his knife.  Capt kept him off with his foot & Jervis picked up the pistol.  [193]  Then he said now I've got the pistol I'll shoot you yopu big Son of a B.h. I cleasred out & went aft hearing the shot of a pistol as I went.  I then went to Mate's toom & told him Jervis had Capt's pistol.  Capt came in to and said we must take it away from him.  We the Prisoner & I took up pistols & went forward.  I a little ahead of Prisoner.  [194]

   Jervis was standing by the Windlass.  That is just under the back of the Topgallant Foercastle.  We called out to Jervis to surrender, he said no what had he done.  He had the pistol in his hand.  He retreated backward on the Starboard side to the Forecastle corner.  When he got there he called out surrender & held the pistol up in an attitude to fire.  The Prisoner then fired a shot over his head.  I saw the shot fired and the pistol help up in the air.  [195] Jervis then fired at the prisoner & then I fired.  I fired on the Starboard side not at Jervis.  I was only 8 feet from him & would have hity him if I tried.  Then Jervis fired again.  I heard the shot whistler by my ears.  Then the Prisoner and I both fired.  Then Jervis had his hand out with the pistol pointing and then dropped it saying I am done or something of that kind.  I do not know [196] whether it was the Prisoner or I shot him.  Then we went forward to seize him & he tried to draw his knife again.  Then Caopt came up from behind seized him took the knife away and threw it overboard.  Jervis then struck the Prisoner in the face with his fist.  I went forward & struck him on the head with my fist.  Then he was seized.  I never saw him struck aftwds.  I did not strike him again [????] [him].

[197]

   I did not see him down on the decvk.  I did not see the prisoner assault or strike Jervis.  I am sure of that.  Nor did the capt.  Theh I put an iron on his left hand and he went aft with us.  His face was bleeding a little.  I do not know what from.  I did not strike hiom with the barrel of my pistol.  If the Prisoner had struck him [198] with a belaying Pin I must have seen it.  If the Prisoner had a cord in his hand aftwads I should have seen or if he had spoken of hanging the man I must have heard it.  I did not notice that Jervis's mouth was swelled or face marked that morning.  When he was waiting to wash aftwds he said he was very sorry he had not killed some of us.  If he had known betyter how to use the pistrol he would have domne so. [199]

   I am sure the Mate (prisoner) did not use a knuckle duster.  I never saw one on board the ship.

XXd by C.A.

I am positive that neither of us had struck Jervis before he cut the mate.  When capt laid hold of him he (Capt.) had nothing in his hand.  I am quite sure.  I am positive.  Jervis said no when called on to surrender.  When we asked him to surrender he pointed pistol at us.  He pointed it at us before we fired. I am positive.  The Mate fired first.  He fired up [???????].  I wd fire so if I wanted to frighten him.  If I was certain he was goikng to fire I would not have fired over his head.  Jervis fired second shot.  It was directed at [200] mate more than at me.  I fired 3rd shot.  I did not aim at anything particular.  I fired two, Mate fired two, then Jervis fired two.  Second was aimed at me.  He was struck at my second shot.  Mate & I then fired together.  When he was hit he said he's done.  Capt. & we two then caught hold of him.  He struck mate on face.  I struck him on the head with my fist.  Capt. said something to effect don't kill him.  I don't know why he said so.  Mate stepped back when struck.  I was there all the time.  I did not strike Jervis with pistol.  It was Jervis that said "I am sorry I did not kill somebody."  Mate did not say that.  I saw no belaying pin in mate's hand.  I will swear that.  I should not say there was much blood on Jervis's herad.  After this affair I heard order that pumping was to be in watch.

Re-Exd.  I am quite positive Mate did not strike Jervis.

To a Juror.  He had left arm in sling.  He did not lay down revolver to take belaying pin.

To Court.  I can't say what made Jervis's head bleed. [201]

Charles Anderson, sworn.  I am a Citizen of the USA.  I was actg Boatswain on the Lewis Burnell.  I remember the duisturbance of the 12th August.  I was in the carpenter's shop when I first heard the shooting a little after 8 in the morning.  I went round the [house] and saw Jervis vacking off and firing at the Mate.  I saw him fire two shots.  As far as I could judge he was aiming [202] at the Mate.  The Mate was returning the fire.  They did not seem to aim at him exactly.  I saw Jervis apparently aiming at the mate.  They fired two shots at him and he dropped the revolver & said he was done or words to that effect.  After that I saw him drop on [knees] alongside the house.  He then got up and struck the Prisoner in the face.  He also attempted to draw his knife but the Capt. came up & took it away from him.  [203] 

   After that Jervis was  seized & taken aft.  I was in sight of them at the time, he was not particularly [?????????].  I did not see either of the mates [beating] Jervis nor do I recollect his beiong down on the deck or his being stamoped on.  Did not see the Prisoner hit him with anything.  If he had hit him with a belaying pin I must have heard or seen it.

XXd by C.A.

After the Prisoner came [???] [wounded] from the Fo'castle I was about to collect the [Rations] for the Crew & brush [204] the points off.  I was doing so when the firing began.

   I cannotremember whether the mates fired between Jervis's 2 shots.  I saw how jervis was holding his revolver but do now know how the mates were holding theirs.  When I saw (heard = deleted) the mates fire, they fired together & it was after that that Jervis said he was done.  Did not hear the Capt say antyhing about not wanting Jervis murdered nor the mates make a rush at him. [205]

Charles Ellice, swoen

I recollect the 12th August.  I was then A.B. on Lewis Burenll.  I know there was a disturbance then.  I was in Starboard Watch.  I had a conversation with Jervis in the Fo'castle.  He said the mate had struck him and that he had stabbed the mate.  The Capt. came aftwds & tried to pull him out.  Jervis said if you do I will give you the same as I gave the mate.  The capt. had a pistol in his hand.  Jervis showed his knife. [206] When the capt. was retreatuing to the door the Pistol dropped out of his hand.  Jervis picked it ujp immediately.  After the Capt. had gone aft the pstol went off.  I hid myself after that.

   I heard Jervis asked [???] times will you surrender?  After that seven shots were fired.  2nd Mate fired one.  Prisoner fired two, did not see Jervis fire any.  Did mot see anybody strike Jervis.  Jervis was struck by two shots.  I saw him [drop] on his left side. I had heard him say I am done.  I did not see him struck after that. [207]

XXd by C.A.

Capt. caught Jervis by the muffler after he produced his pistol.  When the mates surrounded Jervis they [????] him to surrendered he replied yes.  Then the mates fired.

Mr. Wainwright addresses the Jury for the Prisoner.

Mr. Wilkinson replied for the prosecution.

Judge sums up.

Verdict Not Guilty.

Prisoner discharged.

R. T. Rennie, CJ

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