Australasian Chronicle (Sydney, NSW : 1839 – 1843), Thursday 25 February 1841, page 2
CRIMINAL SITTINGS. – WEDNESDAY, FEB. 24.
(Before, his Honor the Chief Justice)
John Shea was indicted for the wilful murder of John Graham, by shooting him, on the 21st of December, 1840, at St. Aubins, near Scone; and John Marshall, James Everett, Edward Davies, alias Wilkinson, Robert Chittey, and Richard Glanville, were indicted for being present as accessories, aiding and abetting. A second count charged the murder to some person unknown; and all the prisoners as being present aiding and abetting. The Attorney General opened the proceedings, and said that all the prisoners had originally come to the colony convicts, and were assigned to different persons; and he was sorry to find that no reformation had taken place in their characters, although they had been allowed that indulgence which the law held out as an encouragement for good behaviour to persons in their situation. He believed also that in the case of the prisoners he might say that they were, especially Glanville, as comfortably situated in their respective services as persons in their circumstances had a right to expect. He then stated the facts of the case, and called Edward Daley Day, Esq., P. M., who was examined by Mr. Therry, and said, that on the 21st of December he was at Muswell Brook; and, in consequence of information which he had received on the previous evening, he collected a party of mounted men, and started about seven o’clock on Monday morning in pursuit of some bushrangers, in the direction of Scone, passed through that place, and came up with them about fifty miles from Muswell Brook, and thirty-six from Scone, at a place called Doby Hollow; about half a mile from the road the witness and his party saw about six or seven men rushing to the opposite side of the gully; they galloped in amongst them, and shots were fired on both sides; he particularly observed Davies, who ran to gain the cover of a large tree, when Mr. Day fired at him, and Davies returned the shot; he then gained the tree, and rested his gun on the fork of the tree, and again fired at witness, who was not more than twenty yards from him; witness immediately returned the shot, and wounded the prisoner in the shoulder. Shea, Marshall, Everett, Davies, and Chitty were captured almost immediately after; they had in their possession ten or eleven guns, a great number of pistols, and seven horses with bridles and saddles. Witness sent out two parties at daylight the next morning, and Glanville was brought in by one of them. During the night the prisoners Davies and Marshall kept them awake with talking; they were all, in fact, very communicative, and, without any questions to induce them to make any confession, they gave a history of their proceedings. Shea said distinctly that he was the man who shot Mr. Graham; it was no use saying anything more about it, for he was the man who shot Graham, and no one else. Davies said that he would always oppose the shedding of blood, for he knew if they once committed a murder they would not reign a week; whilst saying so he looked at the other four men, and said, you now see we have not reigned a day. Marshall said he would shoot any man who attempted to oppose him, and Graham was a very foolish young man, and he could not expect anything else, when he fired amongst so many armed men. Shea then said he would shoot his own father if he attempted to shoot him. Some of them said that up to that morning they had done nothing, in all the robberies they had committed, that could affect their lives. Shea acknowledged that he had fired six shots, Davies said he had fired four, Everett said he had fired two, and Chitty afterwards said that he had fired one. They appeared to be quite pleased at the resistance they had made, and said, if they could have got hold of the two men of their own party who had deserted, they would rather have shot them than anybody else; they called them recruits, and not tried men. There were with him, Mr. Edward White, Mr. Shinquin, chief constable of Muswell Brook; constable Nolan; Walker, Dawe, Evans, and Kelly, ticket-of-leave holders; and an assigned servant named Donohue. He was afterwards joined by Mr. Richard Danger and one of his assigned servants, Dr. Gill, and Mr. Warren. The ticket-of-leave holders all behaved admirably. They found upon the prisoners some trinkets, watches, and about £60 or £70 in bank notes, silver, and sovereigns. At the time witness and his party came upon them, one of them was casting bullets, and another making cartridges; they said they had never before left their camp without a sentry stationed about half a mile from the camp to give the alarm, and they said they only left off firing when all their ammunition was expended.
Cross-examined by Mr. Purefoy, who appeared for the prisoner Davies. — It was clear daylight, about six o’clock in the evening, when witness and his party came up with the prisoners, who might have seen the party about half a mile before it reached them. They afterwards said they saw the party at the time it turned from the road, but, not thinking it to be in pursuit of them, they took no notice of it; they said they did not expect to be pursued that day, and they intended to shift their camp at night, as they knew very well that the country would be up in arms after them the next day. Witness thought that Everett also said he was opposed to the shedding of blood.
Cross examined by Shea. — Witness thought Shea and all the rest were quite sober that night; they did not, in fact, appear to have been drinking.
Re-examined. — The horses appeared to be very jaded; they said they had taken the grey mare from Mr. William Dangar’s that morning; they appeared very merry, and said they would much sooner be hanged than go to Norfolk Island for life.
James Ducliaw, sadler, Scone, examined by the Attorney General.— Was in the employ of Mr. Thomas Danger; recollected the morning when John Graham was shot; he was Mr. T. Dangar’s clerk, and was about twenty-three or twenty-four years of age; it was on the 21st of December, on a Monday morning; witness had soon Mr. Graham that morning, a little before seven; in about a quarter of an hour after, as he was at his work, witness saw a strange man come into the yard on horseback, and just before that a number of horsemen passed the yard gate. When the man went into the yard, he sung out “cook, cook, come out here;” and witness then said to the man who was in the shop with him, “they are bushrangers.” He thought so because the man had a very wild appearance, and came galloping into the yard; he saw no ribbons about the man, and he could not say that any of the prisoners were the same man. Witness then ran out the back way for the police, and as he was running through the bush, he saw Graham running in the same direction on the road; Graham afterwards walked, and then started off running again, and he staggered. Witness had heard two shots fired; as he came near Graham, he said to witness, “Saddler, I am shot through; I am a dead man,” and witness got up to him as soon as he fell. Witness turned round, and saw a man about five or six rods from him; he called out to witness, “come back here, or I’ll blow your brains out.” He was on horseback, and armed, but witness could not identify him. He asked Graham also to go back, but he said he could not, as he was shot through; he then ordered witness to march on, and they left Graham lying there. When they got back, witness saw another man standing at Mr. Dangar’s store door, apparently armed and keeping guard; another man came out of the store; the rest were down at the inn. One of them came out with some bracelets, and the one who was standing guard trampled on them, and they were broke. The man who brought the witness back said there was a man shot, and the time for them to stop was short. He then galloped off up the road. Witness was so much alarmed that he did not know any of the men; he was ordered to stand at a tree opposite Dangar’s store; they went down to Mr. Chiever’s, about five or six rods off on the opposite side of the road; one house could be seen from the other, and if the talking at one place was loud, it might be heard at the other; the men might be there for about a quarter of an hour or twenty minutes: they all went off together from Chiever’s door on horseback; there were seven of them, and they were all armed. The whole of Mr. Dangar’s family were in the house at the time; as soon as they were gone away, witness ran up to Graham; he was still alive, but quite insensible. There was a large wound in the small of his back, and some blood on his shirt; he did not live more than ten minutes after.
Cross-examined by Mr. Purefoy.— Witness could not swear who fired the shot; he only heard two shots fired. It might be about a hundred rods from Mr. Dangar’s store to the place where witness saw Graham; a person could not be seen or heard, unless he shouted very loud, or stood on the fence, front the stores to the place where Graham was; or a person might be seen at that distance on horseback. Witness did not examine the pistol which was lying by the side of Graham, and could not tell whether it was loaded or not.
Elizabeth Chievers, wife of John Chievers, publican of Scone, remembered seeing some men go to Mr. Dangar’s house on the morning of the 21st of December; she heard the noise of horses’ feet, and on looking out of the window she observed three men, having the appearance of gentlemen, who rode up to Mr. Dangar’s gates, and one of them dismounted and went in; one of them had a light coloured ribbon in his hat, and she thought on that account they were bushrangers; she turned round to go out of the room to see if they were bushrangers, but as she was going towards the door a man came and said, “Well, mistress, what have you got for us?” Witness asked him what he wanted, and he said money, and he knew that she had plenty, and he must have it; Glanville was the man. This witness also identified Marshall and Everett, and said she believed Davies was also there; on looking at him again she said she was sure that he was the man who was standing at the bar door with ribbons in his hat. Glanville was armed with two guns, and several pistols in his belt. The witness then sat down, and Glanville told her to get up and give him the money, as he had not long to stop; she then gave him the cash box out of the bedroom window; there was in it about thirty £1 notes, two £10 notes, half a sovereign, and about £20 in silver; there were also some orders, but he said they were of no use to him, but he took the money and went round the place to see if he could find any fire-arms; he then called Ruggy, and the prisoner Everett came and asked what was in the cash box, and witness told him that the other man had taken it all. Everett then went towards the mantelpiece and took two bullet moulds, and a gun from the fire-place. In looking about the prisoner Everett found a fiddle, and called out, “Morey, can you play the fiddle?” to which some one answered, “no; but I should like to have a bugle.” She went down then to the kitchen, where some persons were bailed up, and saw Davies standing armed at the bar door; she said she was afraid, and Davies said he would not hurt her, and at the time showed her a pistol; at the same time Marshall came into the room with a gun in his hand and said, “Is it all right here?” to which Davies replied, “Yes.” There was a border policeman in the room, and Marshall said, “You have got a policeman here,” and Davies said, “Yes; but he is a government man.” Marshall then asked the policeman who he belonged to, and he said to Mr. Macdonald, to which Marshall said it was a good job for him. They went out soon after and called the policeman; witness followed them to the door, and then saw five or six men with broken firearms; they soon after that rode away past Mr. Dangar’s as fast as they could, and she counted seven of them; at the time witness went to the door she saw three other men bailed up under a tree opposite Mr. Dangar’s house. During the time she was in the bedroom she heard three shots fired, and she saw the body of Graham brought down about two hours after the men had gone; while they were in the house she heard one of them say “Is he settled?” and another replied,” Yes; it is all right;” she did not know what they meant then, but she afterwards thought it referred to Graham being shot. Mr. Chievers was not at home at the time. This witness was cross-examined at considerable length by Mr. Purefoy, but nothing new or material was elicited.
Cross-examined by Marsall.— The first time she saw him was when he came into the room; he was then in his shirt sleeves with a broad leafed hat and ribbon on it.
Re-examined — There did not appear to be two parties of them, they all seemed to be acting in concert.
William Day, cook at Mr. Chievers, remembered some persons on horseback coming to Mr. Chievers on the 21st December; one of them came into the yard and held a pistol to his head; the prisoner Everett was the man; he was dressed in a dark coat and a Manilla hat with pink ribbon on it; he was then taken into the bar and bailed up with the rest. A man in the passage said “Is that fellow all right?” witness supposed that referred to Graham, as he had seen a shot fired by a man who stood in the road opposite Mr. Dangar’s house; the shot was fired at Mr. Graham; I saw him running along the road, and the man who fired at him was about twenty yards from him; witness saw that before Everett came up to him. He thought he heard a shot fired, and that caused him to look towards the building, and then he saw the second shot fired; he thought it took effect from seeing Graham slacken his pace all of a sudden; he did not see him fall, for he was instantly accosted by Everett; witness thought when the man said “Is that fellow all right?” he alluded to Graham; as soon as he could he made his way out the backway to call the police, and as he was returning he saw seven men riding along the road about three or four hundred yards from the house, and he had no doubt but they were the same men who had been at Dangar’s and Chievers’; witness could not say which was the man who fired, but he had a light coat on.
Cross-examined — Witness might be about a hundred yards from the man who fired at Mr. Graham at the time he fired; he was then standing quite still; did not see a pistol fired by Mr. Graham; there appeared to be two parties of them, one at Dangar’s and the other at Chievers’; it was about seven o’clock in the morning, and there might be a distance of about fifty or sixty yards between the houses; a transaction might be going on in one house and a party in the other not know anything of it.
Re-examined — From what he said, the men at Dangar’s and at Chievers’ seemed to be all of one party.
Joseph Chievers, brother of Mr. Chievers, publican of Scone, was at his brother’s house on the 21st. of December, and saw Marshall, Everett, Davies, and Glanville there. Marshall inquired if it was all right about, half an hour after the other three had been there; he was in the bar when he asked that question, and some one answered, “Yes, it is nearly all over.” Witness had heard two of three shots fired; and about half an hour after the shots were fired they all went away, seven in number. Everett met him in the yard, with a pistol in each hand, and ordered him to bail up in the bar. Davies kept the bar door. He saw Graham when they brought him down on a board. Thomas Dangar, storekeeper at St. Aubin’s, near Scone, said he remembered the men coming to his house, and one of them knocking at the bedroom door. Upon opening it Marshall entered the room, and asked if that young man (meaning Mr. Graham) was witness’s son; he (witness) answered no; and Marshall said that the young man had fired at them, and they would have his life. Witness did not hear any shots fired. Marshall asked for the keys, and they were delivered to him. He took some watches and bracelets, which latter witness afterwards found had been trampled to pieces. Marshall said if witness left the room he would shoot him. He left some valuable property behind him, and did not stay more than two minutes in the room. He appeared to be alarmed after Graham had been shot. The prisoner Marshall, in cross-examining this witness, admitted being in the bedroom and questinning Mr. Dangar, as stated.
Thomas Dangar, aged eleven years, proved that the prisoner Chittey was the man who rode into the yard and called out “Cook, cook;” and that he was the man who rode on towards the township. The witness also saw Marshall in his father’s bedroom, and heard him ask if that young man (Graham) was his son, and say that he had shot at them, and they would have his life, or words to that effect. Marshall afterwards went through the yard. and said to the cook, “It is through you the other man got away.” Witness afterwards supposed that the prisoner, in saying that, alluded to Mr. Graham. Witness saw Mr. Graham dead about an hour after.
Sarah Dangar, wife of Mr. T. Dangar, was then called, and corroborated the evidence of the above witnesses in every particular, and also said that she heard the report of a gun three times. She also identified the prisoner Marshall, but could not identify any of the others.
William Jones, fencer, remembered being in the bush on the 20th of December last, where he fell in with seven men, six of whom then stood at the bar. One of the prisoners, whom he knew, desired witness to go down to the creek in the shade. When he went down he saw six more sitting on the grass. Marshall and Everett went up to his hut, and asked what beef he had. He showed them what he had cooked; and they asked him if he had not any more, and he told them none cooked. They took what was cooked, and had two or three pots of tea. They were all armed, and they left him about sundown. It was about twelve o’clock in the day when he fell in with them. He heard of Graham’s death the morning after. On this witness retiring from the box Everett said he hoped he (the witness) would be the next man who would be shot, and all such b—y dogs.
John Paterson, a settler living about four miles from Scone, recollected seven bushrangers coming to his house, on the 21st of December, all armed and mounted. All the six at the bar were there. They staid about five minutes, and took a horse from him, and appeared to be very much agitated. Some had hats, and others not; one man had blue ribbons in his hat. He heard of Mr. Graham’s death in the course of the day. They took a pistol from him as well as the horse.
James Norrie remembered seven bushrangers calling at his house, about eleven miles from Scone, on the 21st of December, on horseback. The prisoners at the bar were there; they breakfasted at his house, and paid for what they had. He held their horses at the door, and they told him he was to look out, and give them due notice if he saw anybody approach. Witness thought it was Davies who said to him, “Go into the house; we can shoot a man in a minute; we have shot one already,” He had seen Davies before; he had stopped at his house once or twice before.
Cross-examined. — he would not positively swear that Davies was the man who said they had shot one already, but he believed he was. The man who said so was quite sober, and the others were in the house at the time.
Richard South, publican at Page’s River, twenty five miles from Scone, remembered the prisoners calling at his house about twelve o’clock on the 21st of December. They bailed up all the family, and broke up some fire-arms. Marshall said he would deal with witness before he went away. Marshall, Shea, and Davies had stopped him about three weeks before on the road, and robbed him of his horse, saddle, and bridle. While they were at his house he heard a shot fired, but could not tell who fired it. When they went away they left a horse behind them.
Isaac Haig, surgeon of Red Bank, near Scone, examined the body of Graham, and proved that his death was caused by a gun-shot wound in the cavity of the chest, which was filled with blood. The ball had entered in the back of the deceased, a few inches from the spine, and had penetrated the chest. He opened the body, but the ball could not be found.
John Nolan, constable of Muswell Brook, was one of the party who went with Mr. Day to apprehend the prisoners; witness fired some shots, and Everett and Sires fired at him; about sixteen or seventeen shots were fired at their party by the prisoners; they captured five of them, and the next day they took Glanville on Liverpool Plains; he was then unarmed; he said that he was not present when Graham was shot. This closed the case for the prosecution, and Mr. Purefoy then addressed the jury on behalf of the prisoner Davies, contending that he was not present at Dangar’s robbery at all, much less at the murder of Mr. Graham; but that from the evidence it was clear that during the whole time he was at Chievers’, and that the transactions were entirely distinct from each other, and there had been no evidence whatever to show that the party at Chievers’ had any participation in the robbery and murder which was committed at Dangar’s. The learned gentleman further urged the fact that Davies, who it had been assumed was the leader of the band, had expressly and distinctly avowed his disapprobation of the shedding of blood; and it was also in evidence that the party with whom he was at Chievers’ conducted themselves in a quiet manner, and that Davies himself had assured Mrs. Chievers that no one should be hurt. The learned gentleman then commented at some length, and concluded by saying that he could safely leave the case in the hands of the jury; but he must contend that there was no evidence to pin the murder on his client. The other prisoners made no defence, with the exception of Everett, who said he was innocent of the murder.
Thomas Walker was called as a witness for Davies, but did not appear. The Attorney General briefly replied to the remarks made by Mr. Purefoy. His Honor summed up at great length, and said the case was one of the most important which had come before the notice of that court during the present sittings, or perhaps during the last two or three sittings; and the only question to which the jury would direct their attention was that of murder. They were not to take into account the numerous robberies which the prisoners had committed; for they were not being tried for being bushrangers, but on a capital charge of murder; that, therefore, was the question to which the jury would direct their attention. His Honor then laid down the law, and stated, that though a party of men might go out to commit a felony, and a part of them should, during the transaction, commit a second felony, they would all be liable to be called to an account for it; and quoted a case, in which he was retained for the defence some years ago, of a party of young men going to rob a certain house, and one of them taking with him a loaded blunderbuss; and that, on arriving near the house where they intended to commit the burglary, some alarm was made, and the occupier threw up the window to see what was the matter, when one of the young men, who was nephew to the person, immediately shot him; and, though none of the other prisoners were near him at the time when he fired, some of them being even at the back of the house, seven of them were tried, condemned, and executed, along with the actual murderer. If, therefore, the jury were satisfied that the prisoners were all of one party, and that the locality of the houses was such with reference to each other that the party who were in one could be cognizant of what was going on in the other, they must return a verdict accordingly. His Honor then read over the whole of the evidence, commenting on it as he went along; and said, if the jury were satisfied that two distinct felonies had been committed, and that the party engaged in one had nothing to do with, or were not cognizant of what was done by the others, they would then be justified in making a distinction. If they were satisfied that Davies, Glanville, and Everett were not present at Dangar’s robbery, in that constructive manner which the law required, then they would make a distinction in the cases; and that appeared to be the only point for their consideration, and if they were satisfied upon that point, then he (the Chief Justice) did advise the jury to acquit those men of that charge. The jury then retired, and after a consultation of three-quarters of an hour returned a verdict of guilty against all the prisoners. The Attorney General then prayed the judgment of the court upon the prisoners, and his Honor, in a very impressive manner, passed sentence of death upon them all. The trial, which appeared to excite great interest, was not concluded till nearly eight o’clock in the evening, and the court was densely crowded throughout the whole of the day. The prisoners all appeared to look upon the proceedings with the most perfect indifference.