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

R. v. Stewart [1827] NSWSupC 73

murder - manslaughter

Supreme Court of New South Wales

Forbes C.J., 30 November 1827

Source: Sydney Gazette, 3 December 1827


George Charles Stewart, was indicted for the wilful murder of John Bell, on the 15th of October last.[1 ]

The ATTORNEY GENERAL stated the case.

It appeared in evidence, that the prisoner and the deceased lived together.  The deceased was, generally, a quiet inoffensive man, but was sometimes in the habit of drinking, on which occasions his temper became irritable, and frequent quarrels ensued, none of which, however, were of such a nature as to leave any ill-blood behind as returning sobriety always brought with it a return of friendship and good humour between the parties.  The principal witness in this case, a man named Oakes, who was servant in the house where the prisoner and the deceased lived, stated, that on the evening of the 15th October, about sun-down, the prisoner came in and remained a few minutes, after which he went away.  Shortly after, the deceased entered the house, and stopping a short time within, he also went out.  In a few minutes after the dep[a]rture of the deceased, the prisoner again came in, looking very angry, and immediately followed the deceased out, but had not been away many minutes, when he returned back into the house, and taking a gardener's spade, immediately went out with it in his hand.  Neither of the parties appeared for some time after, when the prisoner, who was first that came in, entered the house, and said to Oakes, that, if any constables came for him, he was not at home.  After this, the prisoner again left the house, and the deceased, almost immediately after, came in, with a cloth bound round his h[e]ad, through which the blood oozed plentifully.  Oakes with an exclamation of surprise, and an enquiry as to what had happened, took off the bandage, when he discovered that the blood flowed from a deep wound across the eye-brow, in an oblique direction, and about an inch long.  The deceased also exhibited his hat, which was cut across the rim, in the place immediately covering the eye, and observed, that that had been his protection, as but for it he should have been killed on the spot.  Oakes advised him to report what had happened to the Police, but the deceased declined doing so, and said he hoped he should get better shortly.  The prisoner was not at home during that night.  On the following morning he came home, and telling Oakes to follow him, they proceeded tog[e]ther to a ditch, at some short distance from the house, out of which, after searching about, the prisoner took a spade, observing that he was glad he found it, for if it had been lost he would have had six shillings to pay for it.  The prisoner also said something about a brick, and taking up one from the ground, said to Oakes, "he," meaning the deceased, "threw that at me."  At this time the deceased was lying very ill, and the next day a man named Johnson called on him, and advised him to get medical aid.  Johnson stated, that the first intimation he had of any thing having happened to the deceased was from the prisoner, whom he met on the morning of the day on which he visited the deceased, and who told him that the deceased was very ill, and wished to see him.  The prisoner also told Johnson the circumstances of their quarrel, observing, in reference to the spade, that he did not mean to hit the deceased, but when he threw it, it went as straight as an arrow.  Thornton, a constable, also stated, that he visited the deceased after he became speechless, and upon asking him what was the weapon with which he was struck by the prisoner, he took a small bit of paper, on which, with a pencil, he wrote the word "spade."  The deceased lingered in a very bad state from the 15th to the 23d of October, when he was seized with locked-jaw, and conveyed to the General Hospital, where he died on the following day, the 24th.  Dr. Mitchell, who attended the deceased after he was admitted into the hospital, stated, that the proximate cause of the locked jaw was the wound over the eye, which fractured the outer table of the skull.

The CHIEF JUSTICE put the case to the Jury, as one depending on circumstantial testimony, but circumstances, notwithstanding which, taken together, pointed too strongly to the prisoner, to leave any doubt but that he was the person by whom the fatal wound had been inflicted.  Whether such was, or was not the case, formed the first point of enquiry for the Jury.  The second point for their consideration was, the circumstances under which the blow was given.  His Honor here minutely pointed out the distinction between the circumstances attending the death of an individual which were necessary to be shewn in order to constitute the crime of murder, and those cases in which the offence amounted to the lesser crime of manslaughter, leaving it to the Jury to say, from the evidence before them, of which the prisoner was guilty.  The Jury retired for a few minutes, and retired with a verdict of Guilty of manslaughter. - Remanded.[2 ]



[1 ] See also Monitor, 3 December 1827.

[2 ] The prisoner was sentenced to transportation for seven years: Sydney Gazette, 3 December 1827; Australian, 6 December 1827.

Published by the Division of Law, Macquarie University