Skip to Content

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

R. v. Wise [1837] NSWSupC 50

attempted murder - children, criminal defendants - Wollongong

Supreme Court of New South Wales

Dowling A.C.J., 1 August 1837

Source: Australian, 4 August 1837[1 ]

Henry Wise was indicted for maliciously stabbing William Bursell, at Woollongong [sic] on the 21st April last, with a knife on the left side of the back, with intent to kill and murder him.  A second count laid the intent to do the prosecutor some grievous bodily harm.  It appeared from the evidence of Bursell, that the prisoner, who is an orphan lad, aged about 14, was apprenticed to him about two and a half years ago, to learn the shoemaking and tanning trades.  On the day laid in the indictment, the prisoner was saucy to the prosecutor's son, and also to a journeyman, upon which Bursell in the heat of passion seized a pair of new bridle reins, and struck the boy with all his force on the back, as he was sitting at work.  The lad was parting the sole of a boot with his knife at the time, and he immediately rose up and a scuffle ensued between him and his master, who being frightened at the knife, immediately left the room, not knowing at the time that he had been wounded.  Mr. Osborne a magistrate happening to pass Bursell's house at the instant, the prisoner was interrogated as to the cause of his disagreement with his master, when he replied that his master ill-treated him, and did not teach him his trade, upon which Mr. Osborne observed that under those circumstances he had better leave Bursell, and took him away with him.  After the lad was gone, the prosecutor felt an itching sensation on the left side of his back, and putting his hand to the part, he discovered a moisture as if of blood, upon which he asked his wife whether he was wounded, and she replied he was.  His clothes were cut through, but the wound was a mere scratch.  Bursell then ran after Mr. Osborne, and showed him h wound, and the result was that the lad was committed to take his trial on the capital charge.  Bursell admitted that he struck the lad in a immoderate manner while he had only his shirt on, and that the wound was of so trifling a nature, that he never took any further notice of it.  The learned Judge stopped the case, observing that the injury complained of was not of sufficient extent to come within the meaning of the words in the Act of Parliament upon which the lad was being tried.  Independently of this, sufficient evidence had already been shewn to entitle the prisoner to an acquittal on the present indictment even on the facts of the case.  The Jury under His Honor's direction, returned a Verdict of ``Not Guilty."  His Honor suggested to the Attorney General , that under the circumstances of the case, it would perhaps be advisable to cancel the lad's indentures, but it was ultimately thought it would be better to leave that to the discrimination of the magistrates of the district.  The learned Judge told the prisoner he must accompany his master home; and then addressing Bursell, recommended him to treat the lad with kindness, and when he found it necessary to chastise him, to do it in a temperate manner.  The lad was as much under the protection of the law, as he, Bursell, was.  The prisoner was then discharged.  At the request of the learned Judge, Mr. Windeyer undertook the lad's defence, he being unprovided with counsel.



[1 ] See also Sydney Gazette, 3 August 1837 (which estimated his age at 15); Sydney Herald, 3 August 1837 (which thought he was 16); Dowling, Proceedings of the Supreme Court, Vol. 134, State Records of New South Wales, 2/3318, p. 93.

Published by the Division of Law, Macquarie University