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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Wells [1826] NSWSupC 74

Lord Ellenborough's Act - attempted shooting - tenancy - provocation

Supreme Court of New South Wales

Forbes C.J., 29 November 1826

Source: Sydney Gazette, 2 December 1826


William Wells, of Sydney, victualler, was indicted under Lord Ellenborough's Act,[1 ]  for shooting at William Hodges, with intent to kill, on the 5th of October last.  Two other counts in the information charged the prisoner with intent to maim, and also to do some grievous bodily harm.

The circumstances detailed in evidence were briefly as follow.  The prisoner, William Wells, in the month of October last, occupied a house situated at the corner of Pitt-street, Sydney, held from Hodges on a lease for two years, and an agreement to quit at the expiration of that term, on receiving a notice three months previous.  The conditions, however, were not complied with by the prisoner, who refused to give up the premises according to the contract, in consequence of which a dispute occurred between the parties, and Hodges placed the matter in the hands of a solicitor.  On the 5th of October, in the evening, Hodges went to the house of the prisoner, in company with another person, in consequence, as he stated, of a message he had received, through his solicitor, informing him that the prisoner would compromise the business and give him up the house.  On entering he called for a glass of grog which was handed to him by the prisoner, and which he drank without any conversation taking place between them, and then went away.  In about a minute and a half, he again returned, and commenced abusing the prisoner, calling him a scoundrel and swindling rascal for not giving up the house according to his agreement.  The prisoner recriminated, accusing Hodges of having injured his credit in various ways, and declared that he would as soon shoot him as eat his supper and go to bed, and, finally, came from behind his counter, pushed him down the steps into the street, and shut the door.  A number of people were, by this time, collected outside, and Hodges finding that he could not again get admission into the house, rushed forward to the shop window and broke several panes of glass with his clenched fist.  The prisoner then went into a little room adjoining the shop and returned with a pistol, calling out to Hodges that if he broke any more of the windows he would shoot him; Hodges replied, "you shoot me, you scoundrel! that is more than you dare do," and immediately sent his fist through another pane; at the same instant, the prisoner fired, and Hodges received a wound in the temple, and fell.  From the testimony of another witness, however, who detailed the circumstances more minutely, Hodges did not fall, but staggered backwards, and, on recovering himself, again rushed towards the window and demolished some more glass.  Dr. Bland, who was called in to attend Hodges, stated that he had received an irregular longitudinal wound in the temple, about an inch in length, which appeared to have been inflicted by slugs.  The outer table of the scull was fractured, and death might have been the consequence of the injury received.  On a cross examination, however, Dr. Bland admitted that, supposing the pistol had only contained powder, fragments of glass through which the pistol was discharged, might have been impelled by the wadding, and, from the situation of the parties, being so close together, produced the wound, but, notwithstanding, he was of opinion it had been inflicted by slugs or some irregular body.

The Chief Justice, in summing up the evidence, stated to the Jury that, to sustain an information, under the statute of the 43d of Geo. 3d, commonly called Lord Ellenborough's Act, it was necessary, not only that a wound should be inflicted which might have caused death, but it should also be given under such circumstances of malice, as if death had ensued it would have been murder.  His Honor then minutely commented on the evidence at considerable length, and left the case entirely with the Jury to consider, from the testimony brought forward, first, whether the wound might or might not have been mortal; secondly, whether the pistol was actually loaded, or whether, if only charged with powder, the glass against which it was placed, might not have been impelled by the force of the wadding, and have caused the injury; and, thirdly, if they should arrive at the conclusion that the pistol was loaded, whether there was not that degree of provocation on the part of Hodges to rouse the passions of the prisoner to such an extent as to excuse the act he afterwards committed.

The Jury, after a short consultation, returned a verdict of not guilty.

The trial seemed to create a considerable interest, the Court being crowded in all parts.



[1 ] On the legality of Lord Ellenborough's Act in New South Wales, see footnote 1 to R. v. Smith, January 1825.  This case was also reported by the Australian, 2 December 1826.

Published by the Division of Law, Macquarie University