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

R. v. Cagney [1837] NSWSupC 54

murder, Maitland, capital punishment, new procedure - capital punishment, dissection

Supreme Court of New South Wales

Burton J., 15 August 1837

Source: Australian, 18 August 1837[ 1]

TUESDAY. - Before Mr. Justice Burton, and a Jury of Military Officers.

Michael Cagney was indicted for the wilful murder of Edward Hughes, at Maitland, on the 23d May last, by striking him on the right side of the head with a stick, from the effects of which the deceased languished until the following day, and then died.

Mr Therry conducted the case on the part of the prosecution; and Mr Windeyer appeared on behalf the prisoner.

The circumstances of the case were these:--  The prisoner, a young man between 20 and 21 years of age, who came free to the colony, lived in the service of a butcher named Wholaghan at Maitland, who, having occasion to slaughter a beast about 2 o'clock in the morning of the day laid in the indictment, was assisted in that office by the deceased, on Broadway, and another person, not produced before the Court.  The beast was slaughtered in a paddock about 200 yards from Wholaghan's shop, and during the time the parties were engaged in slaughtering it, the prisoner came to them, and began to expostulate with Wholaghan for remaining from home for so long a time, upon which the deceased observed, what a cub, or brat of a boy, the prisoner was to be master over Wholaghan.  On hearing this observation, the prisoner immediately took up one of the feet which had been cut off the slaughtered animal, and threw it at the deceased, knocking him senseless, and then ran off.  The deceased, however, recovered sufficiently in two or three minutes to be able to finish the slaughtering and dressing the animal, and after it was completed, the body was quartered and put into a cart to be taken to the shop.  An hour and a half had now elapsed since the deceased had been knocked down with the beast's foot, and in the interval his brother, and aged man, had been sent for; but as the deceased had recovered, no further notice was taken of the matter.  Wholaghan, Broadway, and the deceased conveyed the meat in the cart to the shop, and when they came there, the prisoner was standing under the verandah with a piece of paling in his hand about 3½ feet in length, 4 inches in width, upwards of 1 inch in thickness, and weighing about 10lbs.  Wholaghan endeavoured to dissuade the prisoner from renewing the quarrel, and attempted to take the bludgeon from him, but could not.  After having reasoned with him, however, for about five minutes, he considered the prisoner's anger had subsided, and he then commenced unloading the cart.  At this time the deceased was standing just inside the doorway, with his face inclined towards the left, as if looking up the street.  The deceased's brother was in the verandah just opposite to him, and facing the prisoner, who stood at the end of the verandah with the bludgeon in his hand.  Wholaghan was in the act of putting a quarter of the beef on his back, in which he was assisted by Broadway, the two Hughes' also waiting to assist in hanging it up in the shop, when the sound of a violent blow caused Wholaghan to throw down the quarter of beef, and ascertain the cause of the noise.  He then perceived the deceased lying stretched on the floor, with his head inside the shop and his feet upon the lintel, upon which he immediately cried out, ``Oh! My God, the man's murdered."  He then went for a surgeon.  James Hughes saw the prisoner come towards the door just as the blow was struck, but thought he was merely going into the shop.  Broadway, and Furze, a constable, saw the prisoner immediately after the blow was struck, throw down the bludgeon and run away.  He was apprehended on the following day.  Mr Cochrane attended the deceased immediately, and found him in a state of insensibility, in which he remained for 26 hours, and then died.  There were two wounds on the right cheek, one of trifling importance, and the other producing a traverse fracture of the lower jaw.  The violence of the injury had caused concussion of the brain in the first instance, and compression of it afterwards, and from these combined effects, the deceased died.  The symptoms were so well marked, that Mr Cochrane deemed it quite unnecessary to open the deceased's head after his death.  The witness thought that a slight blow with such a weapon as the one produced (and which had been identified by the constable) would have caused the injury of which the deceased died.  The prisoner said nothing in his defence.

The learned Judge having explained the distinction between murder and manslaughter, proceeded to comment upon the evidence.  His Honor told the Jury, that if they could see any thing upon the evidence to reduce the crime to the minor offence, to do so.  The Jury, after a few minutes consideration, found the prisoner ``Guilty" of murder, and the learned Judge putting on the awful insignia, viz. - the black cap, immediately passed sentence of death upon the prisoner - admonishing him to lose no time in preparing for the awful change he would soon have to undergo - for although a recent alteration in the law afforded a longer period for the repentance of convicted murderers, yet he, the learned Judge could see no reason in the present case why the law should not take its course.


[1 ] See also Sydney Herald, 17 August 1837. This case was also recorded in Burton, Notes of Criminal Cases, vol. 32, State Records of New South Wales, 2/2432, p. 20.

On the conviction for murder of Lewis Williams, the Australian, 15 August 1837 noted that the prisoner was remanded for sentence and that ``This was the first conviction for murder, since the passing of the Local Ordinance respecting the time of carrying into effect the punishment of that crime."  The new legislation did not remove the practice of dissection of the prisoner's body after execution: see R. v. Williams, Sydney Herald, 25 August 1837; Sydney Gazette, 22 August 1837.

Published by the Division of Law, Macquarie University