Spotlight: Trial of Gipsey Smith and Twigham, for the Murder of Serjeant McNally (1857)

Goulburn Herald and County of Argyle Advertiser (NSW : 1848 – 1859), Saturday 14 March 1857, page 3


TRIAL OF GIPSEY SMITH AND TWIGHAM, FOR THE MURDER OF SERJEANT McNALLY.

AT the CASTLEMAIN CIRCUIT COURT, on the 26th February, William Twigham was placed at the bar, indicted for the murder of Serjeant McNally, at Mount Ararat, on the 16th October last.

Mr. McDonogh appeared for the prisoner.

The prisoner pleaded not guilty. The facts of this case have been already published. The deceased and another police constable were in the pursuit of a man named Turner alias Gipsy Smith, an escaped convict, and came up with him near Mount Ararat. Turner was a few yards from a tent, when the police apprehended him, and he called out for assistance. The prisoner came out from his tent, and fired a two-barrelled gun at the police, one of the bullets taking fatal effect upon McNally, and the other slightly wounding Moore, the second police constable. We subjoin the evidence given by Adams, the owner of the tent:—

William Adams deposed: I am a digger, and in October last resided at Mount Ararat; I was a free man; I remember Turner coming to my tent about the 16th October; my wife and three children were there with me when he came; shortly afterwards (about half an hour) two other men came; I see one—the prisoner; his companion, Turner, myself, and family dined together that day in my tent; Turner went out alone about half-past three or four o’clock, and returned first on horseback about four or half-past four o’clock; he then went into my tent; he had a small bundle and a small canister of powder; he laid these things on the table, and shortly afterwards Twigham came in, about a quarter of an hour after Turner; he brought a swag of red blankets, and laid them underneath the dresser’s legs, where he sat down, [a sketch of the tent and plan of interior were here produced]. Turner was there; I saw him take the small canister of powder over to him (Twigham,), and ask him if it was fine enough; that was about five o’clock, and afterwards I went out to cut some wood; when I returned about six o’clock, to have some tea, they were present, with my wife and children; and after tea, about half-past six, I went out to the wood again; two other men came, leading a horse, and then went into my tent; it was between light and dark; a man came to my tent a few minutes after, and said that Turner had better go, as the traps were laid on him; Turner said there was no b—y fear of the traps coming where he was, for if they did, he would show them the punishment they served out at Mount Ararat; Twigham then pulled out the blankets from underneath the dresser where he had placed them; he opened them and took out a bright double-barrelled gun in two halves; the gun produced is like it, but I cannot swear it is the same; he rigged it together, and Turner asked him if he wanted fresh caps; to which he replied, “No, it is all right,” and he laid it down by the corner of the dresser where he sat. [The plan of the tent was here handed round to the jury.] I then saw Turner go out of the tent, and come in again: in two or three minutes after, he went out a second time; I then went out to my mate’s tent, and saw Turner standing at the corner of my tent; I passed him a few yards, and then met Serjeant McNally and Constable Moore coming up to my tent. [Witness described the corner of the tent, according to the plan produced.] It was then dark; I did not know the constables then, although I had known them previously; I passed on a few yards, and then stopped; I heard them bid good evening to some one, and I heard Turner answer “Good evening.” I then heard a voice say,”Hollo! Turner, Gipsy, you are the man man we want,” and then a scuffle took place; I heard Turner call out, “You cowards, come out,” and ran up towards my tent; I saw Twigham coming out of the door with a double-barrelled piece in his hand; I was about six yards from the tent then, and the shafts of the cart were between me and him; though it was a dark night, there were two candles and a fire alight in the tent, I could see him by that means as plain as I see him now; he turned towards where the noise of scuffling was, then rose the gun to his breast and fired; I saw no one present but myself and Twigham at that time; I heard a voice cry out, “The Lord have mercy on my soul — I am shot.” I went away from where I was standing a few yards, and in about half a minute I heard another shot fired; prisoner then wore a yellow wide-awake hat and a drab coat; I did not notice the waistcoat; I noticed the coat because it was a first-rate made one, with pearl buttons I think; I did not see any one but Twigham when the shots were fired, and did not go into my tent again for half an hour or so; I heard a noise as if several were running away, and heard a voice call out “Police — help — murder;” I next saw Twigham placed under a verandah in Carisbrook lock-up, with blankets rigged up before him, and fourteen or fifteen others; I picked him out at once from amongst them; I saw McNally a few minutes after the shot was fired apparently dead on the ground, and my wife was holding a candle over him; I did not see Moore for a few minutes afterwards; he was covered with blood on both arms and cheek; I went for a doctor but could not find one; when I went back there was no one at the tent; I never saw McNally again or his body; I went up to the camp, and Moore arrested me: I was examined at the Police Court, and told more there than here, because I do not recollect what took place exactly then.

Cross-examined by Mr. McDonogh: I had not brought all to recollection when that took place. I knew Turner before, but never saw Twigham till three years ago at Bendigo. Upon my oath I never was in Van Diemen’s Land, nor in Port Arthur. I never was in Norfolk Island, nor ever escaped from that place. I came out to this country in the Susan, from Liverpool in 1840. — There were soldiers on board her, but she was not a Government vessel. She went to Sydney. My wife and children were arrested at the same time; I was brought before the bench three times, charged with aiding and abetting murder. The reason why I was not listened to then was, because I could not tell the names of the persons present. There were two others besides Twigham and Turner. There were two men there when the shot was fired, but I did not know them. One of the other two men was at dinner in my tent. — After hearing the reply of Smith to the person who cried out that the traps were coming, I was uncomfortable, but did not give them into custody because I had no opportunity. The police were about seven or eight yards from the tent door, through which the light issued. — When I saw the police, I did not point out Turner, nor ever heard anything against him previously as committing robberies. I never rode through Dunolly with Gipsy Smith, and the police were never after me for highway robbery. I never sent him a message to come and rob the stores, nor ever spoke anything of that kind. No other words than good night passed when I met the police. I had gone about seven or eight yards when I heard the scuffle. Not two minutes elapsed till the shot was fired. I did not assist the police, but went towards the house, and then saw Twigham come out with the gun. The scuffling was on the right hand of my tent, and about six yards to the right of the chimney. — When Twigham fired he was just past the chimney. He never had any conversation with Gipsy Smith, nor did I say that as Twigham was unknown he was just the man to put in for it. I never said that I would be even with Smith, and would send him out of the country to secure myself, nor that Gipsy Smith could swear the same thing against myself. I cannot read, therefore do not read the papers. I have heard that there are rewards offered for the conviction of these two men. I do not expect to get a penny if Twigham is convicted. I have heard of New Zealand, but never had any inducement relative to that place, or any inducement at all to come forward to clear the innocent and convict the guilty. I did not know that any guns or blankets were found in a water hole near my tent. I came out free to Sydney, and came free to Melbourne.

Re-examined by Mr. Ireland: I know Mary Barrington. She is here.

The jury found the prisoner guilty.

William Turner, alias Gipsy Smith, was then placed at the bar, and indicted for the wilful murder of Serjeant McNally. He was defended by Mr. Prendergast.

Mr. Ireland opened the case, which was identical with Twigham’s, tried on Monday, and it was for complicity in the same murder that this prisoner was now tried.

Mr. Prendergast raised a technical objection that the prisoner was not then in legal custody; and evidence having been called, it appeared that the warrant of committal could not be found. Serjeant Drummond had, according to his own statement, handed it to Inspector Barclay, but the latter did not remember having received it.

Mr. Prendergast submitted that the warrant was not proved; a piece of paper had been proved, but no warrant, and therefore the prisoner could not be tried for murder. His Honor ruled that the objection was fatal to the indictment, and Mr. Ireland on behalf of the Crown consented to take a verdict of manslaughter, and the prisoner did so through his counsel.

The prisoner is one of the most hardened ruffians in the colony, as is shown in the evidence in Twigham’s case, and an accessory in the slaughter of a constable; yet the culpable carelessness of the police authorities has allowed him to escape the punishment he so richly deserves. It is to be hoped that the Government will make some inquiry into this matter, and ascertain to whom the blame belongs. The prisoner was remanded for sentence.

SENTENCE OF DEATH ON TWIGHAM.

Twigham, alias Laxton, found guilty of the murder of Sergeant McNally, was brought up for sentence. On being asked in the usual way, if he had anything to say why sentence should not be passed on him, he said, Nothing more than the witness Adams, by whose testimony he was convicted, was a perjured man, and that his statements were false.

His Honor said he was perfectly satisfied with the justice of the verdict, and even if Adams’s character was bad, yet he had evidently spoken truly on this occasion, as the evidence of the police completely corroborated him. He proceeded to pass sentence of death in the usual form, without holding out the slightest hope of mercy.

The prisoner was removed without evincing the slightest emotion.

SENTENCE ON GIPSY SMITH.

Gipsy Smith, was then brought up for sentence, and on being asked why sentence of death should not be passed upon him, entered into a long statement, declaring that now it could be but of little consequence to tell the truth, and he could have no inducement to utter what was false, as the sentence he would receive would last his life out, as he was now an old man, and could not hope to survive it. He declared in the most impressive manner that the man Adams, through whose testimony he had been convicted, was a perjurer, that he had been his mate in Van Diemen’s Land, twelve years ago, and that they were both under Captain Childs, in Norfolk Island. He gave a rambling, but striking history of his own life, and said that ever since he had been in the colonies, twenty nine years, he had never enjoyed any liberty but what he took himself; he had originally been sentenced for an offence which now he would not have been sent out for at all. With nine others he escaped in a whale-boat, was recaptured, and then sent to Norfolk Island for sixteen years, and when there he met with Adams. If he had had the same opportunities that prisoners now have, perhaps he would be now a different man. He admitted his guilt thoroughly and that he had become radically dishonest. The only thing that pained him was that a man of the name of Mason was now suffering in the hulks for a crime in which he (Smith) alone was the surviving participator; a case too of which Mr. Ireland must be aware. This fact, he declared, had haunted him ever since the man was convicted; had deprived him of sleep, and made him miserable. He concluded a characteristic address, by again averring that Adams was an escaped convict, and that if he went to Melbourne there were plenty there that knew the fact.

His Honor said that he had not intended to address him at all, but the prisoner’s remarks had shewn that he was still possessed of some feeling. He could not for a moment dissent from the verdict of the jury in Twigham’s case, for it did not depend on Adam’s evidence alone, the police corroborated it in every particular; whether he was or was not an escaped convict, on this occasion he had no doubt he had spoken the truth. The fact that he (the prisoner) had brought this fate down on Twigham, must be a dreadful reflection on him, and the narrow escape he had had himself, entirely owing to a technical point of law, had shewn him the position in which he stood himself. It was better that he should so escape the fate that would have awaited him, rather than that the law should be broken. The sentence that he would pass on the prisoner would be fifteen years’ hard labour on the roads or other public works, the first two years in irons.

The prisoner was then removed.

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