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Colonial Cases

R v. Bernardo 1889

manslaughter - judisdiction

Supreme Court for China

Shanghai, 21, 28 October 1889

Source: Supreme Court of China (Shanghai), Judges' Notebooks, Vol. 3 (1880-1893), The National Archives (U.K.), FO1092: 340, p 315

 

Regina v. Hopolito Bernardo.

Charge of Manslaughter.

Plea.

Crown Advocate applies for postponement for a week on ground that certain [circumstances] as to jurisdiction have arisen between Spanish & British authorities and that it will be for convenience of all parties that postponement to Monday be made.

Postponement allowed accordingly.

 

R. T. Rennie, C.J.

21.10.89

Jurors and witnesses to attend on Monday next at 10 a.m.

[316]

Monday, 28th October 1889.

Regina v. Hipolito Bernardo.

(Remanded from 21st inst.)

The Crown Advocate informs the Court that he does not intend to proceed with the Indictment against the Prisoner & offers no objection to his discharge.

Prisoner discharged accordingly.

R. T. Rennie,  C.J. 28.10.89

 

Source: North China Herald, 4 October 1889

MURDER OF CAPTAIN O'BRIEN.

   On Wednesday afternoon, Captain J. Roberts of the tow-boat Rocket reported at the Hongkew Station that Captain O'Brien of the British bargque Sea Swallow had been murdered by his crew, that the sailors were in irons and that the vessel was being towed up the river by the Fuhlee.

.  .  . 

   Owing to Captain O'Brien being an American citizen, though Master of a British ship, the British and United States authorities held a consultation on the subject, and it was finally decided that the U.S. Consular authorities should hold the Inquest.  Accordingly a jury consisting of Messrs. D. C. Jansen, E. H. Dunning and H. Sylva was empaneled, with Mr. W. S. Emens, U.S. Vice-Consul-General as Coroner.  Having viewed the body on board the ship the Inquest was adjourned till 10.30 a.m. today (4th).

 

North China Herald, 11 October 1889

H.B.M.'s POLICE COURT.

THE MURDER OF CAPT. O'BRIEN.

   At the British Police Court on Monday, before the Assistant Judge (Mr. R. A. Mowat), Hipolito Bernardo and Liu Kong Lok, seamen on board the British barque Sea Swallow, were charged with feloniously wounding and causing the death of Thomas O'Brien, late master of the ship; and Urbano Sarmento, Toribio Riobero , Pedro Poutre, and Wong Ah Wong, also belonging to the crew, were charged on suspicion of being concerned in the same crime.

.  .  . 

The fourth day's hearing of evidence was commenced yesterday morning by the Assistant Judge.  The Spanish Consul was again present.  Only two prisoners, Liu and Bernardo, were brought up, the other accused persons having all been previously discharged.

.  .  . 

   This was the whole of the evidence.

   His Worship at once discharged the prisoner Liu, and adjourned the case against Bernardo until the afternoon in order to have the depositions then read over and signed, preparatory to committing the prisoner for trial.

   In the afternoon the prisoner was formally committed to take his trial before a jury on a charge of manslaughter.  On hearing the usual caution he made no reply.

   The trial will take place in about ten days.

 

North China Herald, 11 October 1889

INQUEST.

 THE MURDER OF CAPT. O'BRIEN.

   The inquest on the body pf Capt. O'Brien, master of the British ship Sea Swallow, who died of wounds inflicted by some of his crew on the night of the 1st inst., and resumed at the American Consulate-General on the 4th, before the Vice-Consul-General (Mr. W. S. Emens). Mr. Geo. Brown British Vice-Consul), watched the case on behalf of the British authorities; and U.S. Consul-General (Mr. James A. Leonard) was also present.

.  .  . 

The Court was then cleared and after a short deliberation the jury found a verdict as follows:-

   That the said Thomas O'Brien was a citizen of the United States; that he was master of the British barque Sea Swallow at the time of his death; that he died while on board the said barque while she was bound from Nagasaki t Shanghai, between the hour of 12 midnight on the 1st October and 1 a.m. on the 2nd October.

   And the said jurors upon their oaths aforesaid further say that the said Thomas O'Brien died from certain cuts and wounds produced by some sharp instrument causing death within four hours from the time at which the said wound was received; and that from the evidence adduced there is reason to believe that the said cuts and wounds were inflicted by Apolico Bernardo, Yii Kung-look and another of the crew of the Sea Swallow to the jury unknown.

   The crew will be brought before the Assistant Judge at the British Police Court on Monday morning.

 

North China Herald, 25 October 1889

H.B.M.'s SUPREME COURT.

THE DEATH OF CAPT. O'BRIEN.

   At the H.B.M. Supreme Court on Monday, Hipolito Bernardo, late a sailor on board the British barque Sea Swallow, was brought up to taker his trial on a charge pf Manslaughter of Capt. O'Brien, under circumstances already reported.

   Mr. H. S. Wilkinson (Crown Advocate) said - Before the prisoner is called upon to plead, I have an application to make.  Since the prisoner was committed, a question as to jurisdiction has arisen with the Spanish authorities; and I regret to say that the settlement of that question has been delayed by the iIlness and subsequent lamented death of the Spanish charge d'affaires.  It is desirable that an understanding on the question should be arrived at before any further proceedings are taken in this Court, and I have accordingly to ask for an adjournment.  I think I shall be consulting the convenience of all concerned if I ask that there shall be an adjournment for one week.

   The Chief Justice acceded to the application, and instructed the jury to attend on Monday next at 10 o'clock.

 

North China Herald, 1 November 1889

LAW REPORTS.

H.B.M.'s SUPREME COURT.

THE DEATH OF CAPT. O'BRIEN.

   At the British Supreme Court on Monday, Hipolito Bernardo was bought up on remand charged with the manslaughter of Capt. O'Brien.  The case had been remanded from the previous Monday on account of a question having been raised by the Spanish Authorities as to the jurisdiction of the court over the prisoner, a Spanish subject.

  Upon the Chief Justice taking his seat, Mr. Wilkinson (Crown Advocate) stated that he did not intend to proceed with the indictment; and could therefore offer no objection to his being discharged.

   The Chief Justice said he understood proceedings were to be taken against the prisoner before the Spanish Consul, in which case it would be necessary for someone to see that the witnesses attended before the Consul.

   Mr. Wilkinson said that would be attended to by Sergt. Keeling.

   The accused was then formally discharged, but, pending the decision of the Spanish authorities, will be detained in the British Gaol.

   Hs Lordship did not take his seat on the bench until half-past eleven, but the jury were excused from attendance shortly after ten o'clock.

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