Austral-Asiatic Review, Tasmanian and Australian Advertiser (Hobart Town, Tas. : 1837 – 1844), Friday 15 September 1843, page 4

TRIAL OF MARTIN CASH.

SECOND DAY—THURSDAY.

This morning the court, with the space in front was crowded, if possible, more densely than it was yesterday; a few minutes before 10 o’clock, the jury was marshalled from “The Macquarie” by three javelin men, and escorted by some policemen, who had some difficulty in clearing an entrance for them into the court-house; precisely at 10 o’clock, Mr. Justice Montagu resumed his seat on the bench, and the court was opened. The prisoner being placed at the bar, Mr. Justice Montagu said, that in looking over his notes of the evidence, he had resolved upon the manner in which be should put the case to the jury; the learned counsel for the prisoner had taken an objection to the authority of Winstanley as constable, and to the “hue and cry,” which was not constituted in this colony as it formerly was in England; he had also stated, that there was no evidence to show that Winstanley knew that the prisoner was Martin Cash.

Mr. Macdowell replied, that it was his intention to put it to the jury, that Cash ought to have had some notice that Winstanley was a person in authority.

His Honor said, that would have been impossible: the matter occurring in the night time, and in a manner so instantaneous, the deceased could not have given any notice of his authority. His Honor then intimated, that he should put the case to the jury, on the following questions, which he should wish to have answered seriatim, after they had delivered their verdict: his Honor also requested that the jurors would write down the questions as he propounded them :—

1st If guilty, whether they thought that Winstanley, at the time he ran out into the street, had reasonable cause to suspect that the prisoner had committed a felony or other offence?

2nd. Whether they thought that, at that time, Winstanley had reasonable cause to believe or suspect, that the person he attempted to secure was an absconded offender, or a convicted offender illegally at large?

3rd. Did they think, that constables Thomas and Agar had reasonable ground to suspect or believe, that the prisoner at the bar was an absconded offender, illegally at large?

4th. Did they think the prisoner had committed a felony, by discharging a pistol at the constables, in Murray-street?

Upon these questions, his Honor wished a decided answer, should they return a verdict of Guilty against the prisoner; and there was another question, which he would also put to them, namely,—

5th. Whether at the time Martin Cash fired at Winstanley, they thought he intended to murder him, or do him some grievous bodily harm?

Having put these questions, his Honor remarked that he did not think there was anything in the conduct of Winstanley to reduce the case of the prisoner to manslaughter, and nothing to justify the use of so deadly a weapon as a pistol by the prisoner. His Honor also declared, that every man who joined in a hue and cry after a person suspected of felony, or other offence, was justified in pursuing him. Whether the offence was a felony or a misdemeanor, it was the duty of every one to assist in the pursuit; and it mattered not whether an offence had been actually committed or not, for it would be impossible for persons at a distance to ascertain in what a hue and cry originated. On the other hand, those who raised an unjust hue and cry were liable to be indicted for creating a breach of the peace, or a public disturbance.

The Attorney-General, while he perfectly concurred with the learned Judge, would request that his Honor would add to the other questions, the following:— Whether it was necessary for the prisoner to fire in defence of his life? whether (before he did so) he retreated as far as he could? and, in short, whether anything was done by the deceased, by using unnecessary violence, or otherwise, to justify the prisoner in using fire-arms? The learned gentleman contended that Winstanley had used no violence, merely holding out his arms; and that in a sudden affray of chance medley if the party assailed kills another, without using some degree of retreating, or, as it was called, “without going to the wall,” it would be murder; and he never knew a case of that kind mitigated to manslaughter. The Attorney-General here referred to certain authorities contained in East’s Pleas of the Crown, sub voce “homicide se defend in chance medley,” where the law was laid down by one of the first of lawyers, and had never been controverted. The learned counsel also quoted Hawkins’s Pleas of the Crown, and other authorities, in support of his opinion.

Mr. Macdowell now proceeded to address the jury in behalf of the prisoner; and the points of law being decided in reference to the evidence, he contended that, although the crime of murder consisted “in taking away the life of one of the Queen’s subjects,” yet it was necessary that it should be so taken away deliberately, or in the language of the law, with malice aforethought. The jury, who had attended to the important trial throughout with the most deep and earnest anxiety, would fail, he humbly apprehended, to discover, in the conduct of the prisoner, any of that malice aforethought which was required by law to constitute the crime of murder. There was something in the term “murder,” most revolting and shocking to reflect upon — it was a most foul and unnatural proceeding; but how stood the present case? There was a man, to use the strong language of the Attorney-General, a PROSCRIBED MAN! whose only offence on the present occasion was an effort to effect his emancipation, so to speak, from that society by which he was proscribed, and to free himself from a crowd of persons who were in hot pursuit of him! There was nothing to show that the prisoner and the unfortunate deceased had ever seen each other before, and it did seem to him (the learned gentleman) as different a case from malice aforethought as any two cases could possibly be. In the one case, they had the assassin selecting his prey, and awaiting the moment to compass his vile purpose; in the other, they had a man who had committed no offence in the town that any one knew of, hunted and pursued through the streets for his very life, till he suddenly and accidentally came in contact with the deceased; there was nothing to show that, as respected the firing of the pistols in Murray-street, Thomas did not fire his pistol first; Thomas, indeed, stated, that the prisoner fired first; but Agar, who was more calm and collected than Thomas possibly could have been, declares that he could not say which fired first, the report was like one and the same report. The learned counsel again submitted, that between this case and that of deliberate murder,- there was a vast distinction; and after commenting upon the alleged pointing of the pistols by the prisoner while being pursued, and the improbability, or indeed rather the impossibility, of Mr. Ebenezer Smith seeing the size of a pistol by its flash, while standing in advance of the person firing, contended that the attempt to apprehend the prisoner was not justifiable, unless he was made acquainted with Winstanley’s authority; he referred also again to the hue and cry not being in force in the colony; the learned gentleman put it to the jury, of course under His Honor’s direction, that the prisoner could not be held responsible for Winstanley’s death, unless he had some notice of the authority by which he acted. (In support of this opinion, Mr. Macdowell quoted Forsters Crown Law, article “Homicide.”).

His Honor observed, that the case to which the learned counsel referred, was very different. That case had reference to frays or riots, and by common law, if a constable during such fray or riot held up his staff, or otherwise declared his authority, that was an indication for the rioters to keep the peace; here there was no riot or tumult.

Mr. Macdowell. — The deceased interfered to stop a man in the street, for which it was very certain he ought to have had some authority.

His Honor. — The law was this: — if a man apprehended another without just cause, he was liable to indictment; so also were the originators of an unjust hue and cry.

After some further observations relative to the evidence respecting the pistols, Mr. Macdowell said, that he had undertaken the defence of the prisoner with great unwillingness, on account of his indisposition; but, learning from the prisoner, that if he, Mr. Macdowell, would not defend him, he would not have anyone else, be deemed it his duty to do so — and he had so done to the best of his ability and as well as physical capacity would allow; he trusted that the jury would give such a verdict as would be satisfactory alike to the crown, to the public, and to the prisoner’s counsel.

His Honor addressed the Jury at some length and with much ability, clearly pointing out the law of the case as was laid down on the several points, during the progress of the trial. All that the jury had to do was to find whether the deceased came to his death by the gun-shot wound, and whether that wound was inflicted by the prisoner. If they found the prisoner Guilty, there was malignity about the case; every argument had been used, and every question raised by the prisoner’s counsel upon the points of law, with great ingenuity and ability; but in his Honor’s mind the case was perfectly simple. His Honor then referred again to the questions, which he intended to put seriatim to the jury, and read over the whole of the evidence, commenting upon it as he proceeded. He deprecated the negligence — as it would seem — of the police authorities, in not taking Winstanley’s statement of the transaction, and gave great praise to the conduct of Mr. Cunliffe, “to whose coolness, courage, and promptitude, the public were indebted for the capture of the prisoner.” Those persons who refused to aid in the pursuit when called upon by Cunliffe, his Honor imputed great blame, as not only a cowardly act but a “gross dereliction of duty as good citizens and subjects,” and he regretted that their names were not known to the police, that they might be prosecuted. He directed them to discard all previous impressions as far as they could — from their minds, and to consider their verdict upon the evidences upon which alone they were to decide; and concluded by saying, that in his opinion, the offence was murder — deliberate murder — a very bad case indeed.

The Jury retired, and after an absence of twenty minutes, returned a verdict of Guilty generally; and an answer in the affirmative to the questions of the learned Judge, with the exception of the second, which they answered in the negative — His Honor, with reference to the fourth question, desired them to say, whether they were of opinion the prisoner shot at Thomas or Agar?

The Foreman replied, that they were of opinion he shot at constable Thomas.

The learned Judge perfectly concurred in the finding of the Jury; he addressed the prisoner in a brief but a very feeling manner, and while he held out to him no hope of mercy in this world, he should, nevertheless, remand him, in order again to look over the evidence, and to re-consider the points of law which had been raised by his counsel, who had kindly undertaken his defence when suffering under severe indisposition; he conjured him to entertain no hope that his life would be spared, but to believe that the extreme sentence of the law would be speedily carried into effect, for his Honor had no doubt that everything had been done that could have been done in his unfortunate case.

The prisoner then said, I have always been against taking the life of any man; I would do anything rather than deliberately do so. I never acted in a cowardly manner, nor in any other way than became a man. I have saved lives in the bush, and prevented many murders; if I had been a man to do murder, there would have been many murders committed in the bush. When we were in the bush we acted like men to every one; when we went to a house we took what we wanted, but we did no violence to man or woman; I could not suffer this. I hope you will not consider I am a man that would do a cowardly and deliberate murder; if I was driven into close quarters with a man I would fire at him and try all I could to get away; but I would not kill him, I would cripple him.

His Honor. — I do not doubt but you have throughout endeavoured to avoid shedding blood or using violence; from all that we have read and heard of you this is true; but still, I cannot hold out any hope to you.

The Prisoner. — I beg your Honor’s pardon, I did not mean that; I did not beg for my life — I do not value it one straw.

Austral-Asiatic Review, Tasmanian and Australian Advertiser (Hobart Town, Tas. : 1837 – 1844), Friday 15 September 1843, page 4

TRIAL OF MARTIN CASH.

FIRST DAY — WEDNESDAY.

It being known that Martin Cash would be tried to-day, for the wilful murder of constable Peter Winstanley, the court was crowded with respectable citizens for some time before His Honor Mr. Justice Montagu took his seat on the Bench, and the greatest anxiety prevailed to obtain a view of the prisoner. At ten o’clock His Honor took his seat, and Martin Cash was ordered to be placed at the bar. The prisoner walked into the dock in the most unconcerned manner, which he preserved during the trial, standing erect, with his arms folded; he was dressed on this occasion in a blue jacket and trowsers, a blue striped shirt, a black handkerchief round his neck, and a green one round his head to cover the numerous wounds he had received at the time of his capture; while the information was being read, he gazed scowlingly at the dense crowd of spectators which filled the area of the Courthouse. The prisoner was then charged in a very elaborate manner, with shooting Peter Winstanley on the 29th of August, with “a certain pistol, of the value of 5s., being then and there loaded with gunpowder,” which gunpowder exploded, and discharged a leaden bullet, which did “strike, penetrate, and wound” the left breast of the said Peter Winstanley; of which wound the said Peter Winstanley “did languish, and languishing did live,” until he died on the 31st of August. To this information the prisoner pleaded, in a firm voice. Not Guilty! The Attorney-General, assisted by the Solicitor-General, conducted the prosecution, and Mr. Macdowell defended the prisoner. The following Jurors were then sworn: Messrs. Corbett, (Foreman), Blackhall, White, Bramwell, Holmes, Season, Large, Curry, Somers, Sadler, Meredith, and Wellard. Upon the application of Mr. Macdowell, all the witnesses, except the medical gentlemen, were ordered out of court. The Attorney-General having stated that the prisoner, as the jury would have learnt by the information which had been read by the officer of the court, was charged with the wilful murder of Peter Winstanley, observed that it would be folly in him to suppose that when the name of Martin Cash was first mentioned, the jury heard it for the first time; it would be gratifying to him indeed to know that this was the first time they had heard of that unfortunate man, all that he could do in the onset was to implore them, as far as in them lay, to divest their minds of any reports they may have seen in the newspapers, or have heard in other quarters — to discard in fact from their minds every particle of information they might have heard elsewhere. It ill became him to adduce any facts relative to the previous life or former transactions of the prisoner unconnected with the present case: but, anticipating the defence which his learned friend intended to adopt, it would be necessary for him to state certain facts which he otherwise should not have referred to, for he felt quite confident that his learned friend would suffer no point of law to escape, nor omit any ingenuity and effort in behalf of the prisoner. In looking to the manner in which he the Attorney-General should conduct this case, and in anticipation of a portion of the defence contemplated by his learned friend, he should have to show that the unfortunate man now placed at the bar, was a proscribed man, having absconded from the Penal Settlement at Port Arthur: and that he was to be captured at all risks, at all hazards, and for a specified reward: he did not think this course would be objected to, but if it was, he conceived that his Honor would overrule the objection.

The person who was wounded on the 29th of August, was sworn in as a constable, who for certain purposes was always considered to be on duty when his services were required; it was on this account that he, the Attorney-General intended to offer such evidence as he had described. Having done this he should lay before the jury such a body of evidence, as would enable them to come to a conclusion as to the guilt of the prisoner; it was for them to judge from the evidence, without fear or affection, and irrespective of the reports they might previously have heard. The learned counsel then entered into a brief and succinct account of the capture of Cash; and in reference to the circumstance of Winstanley hearing the cry of “stop him— it’s Cash, the bushranger,” as uttered by the witness, Cunliffe, observed, that if Winstanley had not been a constable, it was his duty, as a good subject, to capture the prisoner; and in doing so, Mrs. Smith would tell them that he did no more than his duty. He used no violence — he committed no assault; but did the least that could be done, by merely extending his arms towards the prisoner, who immediately shot him. Cash, it would be shown, struggled violently when on the ground and it was necessary, perhaps, to use some violence in taking him. He was a man of great prowess, of great strength, and resolute determination; and one of the constables beat him on the head with a pistol, while another constable kicked him on the head. The learned gentleman regretted that it was necessary to beat him thus severely; but the circumstances of the case seemed to require more than ordinary exertion, on the part of those engaged in his capture.

The Attorney-General concluded his address by directing the jury not to allow anything to operate against the return of a fair and a conscientious verdict, and again implored them to discard from their minds any preconceived impressions which they might have imbibed from hearsay reports. The learned gentleman then proceeded to call his witnesses, who delivered the same testimony as we have already reported in our account of the inquest, observing the following order of examination:— Mr. Price, Constables Thomas and Agar, Messrs. McDonald and Cunliffe, Mrs. Smith, Mr. Ebenezer Smith, Drs. Crowther and Officer. A considerable time was occupied in discussion upon technical points of evidence, chiefly with regard to the authority of Winstanley as a constable, and the identity of the prisoner with “Martin Cash, the bushranger,” his Honor rejecting the Gazette as prima facie evidence until its publication was proved, for which purpose Mr. Barnard, the Government printer, was called. There was some evidence given which, as bearing more especially upon the particular points of the case, we think it necessary to repeat; and, first, a portion of that deposed by constable Thomas, who was examined to the following effect by his Honor.

I swear I heard “Martin Cash” called out before we got to Argyle-street, as well as after — but I do not know by whom; I heard it called by several people before and after the pistol was fired off.

Cross-examined by Mr. Macdowell. – It was about twenty-six minutes before nine o’clock that I first saw the prisoner in Murray-street; I did not speak to him; it was not a very dark nor a very-light night; when the prisoner first spoke to me, it was, I should think, about 700 or 800 yards from Brisbane-street; I swear I heard two pistols fired in Murray-street—one by me, and one by the prisoner; I was following him, anxious to apprehend him, and he was running, anxious to get away; he never stopped to interfere with me; I found him on the ground.

By his Honor. — I knew the man that was running; I first knew it was Cash in Murray-street, from the description I had heard of him, and from Agar, who said, “Tom, this is the man we want;” I said, ” yes;” I picked him out from the description I had heard, and from his accent; I understood, by what Agar said, it was Martin Cash; I was looking for Martin Cash, or Jones; we were stationed at this spot for that purpose; I ran after Cash to take him prisoner, being an absentee, and having committed robberies; I had been instructed by my superior officer to take him on that charge if I could — by Mr. Symonds, the senior district constable; he told me to take him as a thief, a runaway, an absentee. At the close of Mrs. Smith’s examination, after she had mentioned the period of Winstanley’s de-cease, his Honor complained that no inquiry had been made by the magistrates, or the Coroner (as we understood), of Winstanley before his death, as to whether he had heard the hue and cry, and upon what grounds he had acted in attempting, the capture of the prisoner; also, as to whether he, Winstanley, knew the prisoner to have been Cash, or believed him to have committed come felony. The Attorney-General stated, that an inquiry was proposed, but forbidden by the medial attendant. His Honor observed that there had been great xxxx somewhere, and he should inquire into the matter. He never heard of a case where an inquiry was not made of the wounded man, as to the circumstances and cause of his death. His Honor should say nothing upon the subject at present.

Constable Thomas was recalled and questioned, as to whether he had seen the Proclamation or placard, offering a reward for the apprehension of Cash and describing his person; when he stated that he had, and that he had raised the hue and cry from no motives of reward; he would have raised it had he never seen the placard. (Cash, when the witness made this avowal, laughed contemptuously.) Upon this he was cross-examined by Mr. Macdowell, when he said, again, that Agar told him in Murray-street, that the man was Cash; his reply to Agar was “Yes; ” he did not remember saying to Agar, “do you think so?” he could not positively swear that he did not use those words, but he did not believe he did. Dr. Crowther, after describing the cause of Winstanley’s death, stated, that after he was first called to him, he returned, when he found him better and perfectly sensible, and able to relate how the accident occurred; when witness first saw the deceased, he, witness, thought the wound was mortal, and on his return he thought so, also; he had a conversation with the deceased, who said something to him relative to the nature of the wound and its probable result; this was between eleven at night and two o’clock in the morning; when Winstanley said this, he was in a perfectly sane state of mind; he said repeatedly that he was dying —that he was a dead man; it was hard, he said, to be killed by such a rascal, or words to that effect; witness suggested to him the propriety of preparing for an event that might take place in a short time; Winstanley made no reply but shut his eyes and groaned as if in pain; nothing fell from Winstanley expressive of the slightest hope of recovery; witness left him under the impression, that Winstanley himself thought he would die; at this visit Winstanley related the circumstanoes under which he came to his death ; he said, that when be heard the landlady (Mrs. Smith) call out “Peter, there is a thief,” he went into the road, and saw a man running down the street; he raised his arms attempting to stop him, and instantly received a shot; he exclaimed immediately, “the rascal has shot me,” or “I am shot;” witness did not recollect the exact expression; Winstanley said he then left the man who shot him, and was carried into the house; witness was not aware that he named any person’s name as having shot him; he made use of this expression, “who would have suspected that man to have been armed?” On his cross-examination. Dr. Crowther said, he extracted the ball after death; it was unnecessary to have done so before, as it would only have put the deceased to needless pain and would have accelerated his death, as he had already lost a great deal of blood. Dr. Officer concurred in the propriety of the treatment adopted by Dr. Crowther, and coincided in the cause of Winstanley’s death; it would have been highly improper to have extracted the ball during the life of the deceased, as it might have extinguished life; there were, doubtless, cases where it was proper and necessary to extract the ball, but this was not one of them. The case for the prosecution being closed, Mr. Macdowell rose and addressed the Court:—He submitted that upon that information, and upon the evidence adduced, there was no case to go to the jury, the charge against the prisoner being that of Wilful Murder. The learned counsel admitted that the evidence went to show that the deceased came by his death by an act of the prisoner, but there was nothing to show that the prisoner was actuated by malice aforethought; on the contrary, it was clear that the prisoner did not know the deceased, who, as the learned counsel should contend, without any legal authority, stopped the prisoner as he was proceeding along tbe street. The original attempt which the constables Thomas and Agar made to apprehend tbe prisoner, was a question altogether irrespective of the interference of Winstanley; if those men had reason to suspect that the prisoner at tbe bar was as absconded offender, there was nothing to show that the unfortunate deceased had any such knowledge. It had been said, that a “hue and cry” was raised; but that old formality of the law has been long since abrogated; the statutes which enacted and supported such a proceeding have been repealed, except in the instance of the simple offence of angling in a river in tbe day time on a Sunday. It was certainly in evidence that the constables Thomas and Agar, with a number of other persons, pursued the prisoner with loud cries, but that, legally speaking, was not a “hue and cry;” there was, in fact, now no such thing; and even when such was in existence, tbe constables raising the cry were obliged to be armed with a special warrant. Under those circumstances, if any person who joined in the hue and cry, for people were compelled to do so, met with his death, that was murder; in the present unfortunate case, there was no warrant to apprehend, neither was there a knowledge of any offence committed. The learned counsel quoted from Blackstone’s Commentaries, an explanation of tbe old “hue and cry,” as enacted by the 4th and 5th of William and Mary, and the repeal of the laws in reference to them, by the 7th and 8th Geo. IV. His Honor observed, that the “hue and cry” to which the learned counsel adverted, and which had been repealed, had reference only to certain particular offences; it was still applicable in cases like the present, and any person was justified in attempting to apprehend a suspected felon who was running from his pursuers. Mr. Macdowell would then admit that, but, supposing that the hue and cry was proper, was there anything to show that it had ever reached the de-ceased? all that they had heard on this point was, that Mrs. Smith had told Winstanley there was a thief running away, and that there upon he immediately ran out to apprehend him. Then there was the dying statement of the deceased to Dr. Crowther, in which be plainly infers that be did not know who tbe prisoner at the bar was; he Winstanley observed “who would have supposed that the fellow was armed?” The learned counsel submitted that the offence which the prisoner had committed could not be murder. No one could regret more deeply than himself the lamentable consequences that had ensued, but he must say that Winstanley having interposed in a manner for which he was not authorised, the consequences however deplorable rested upon his head and upon his bead alone. His Honor could not concur in the view of the case which had been taken by tbe learned counsel, neither could he allow if to go forth to the public, that a constable in the exercise of his functions, was not entitled to the protection of the law, because as had been averred, the statutes respecting hue and cry were repealed, they were in his Honor’s opinion still in force for all practical purposes in cases similar to the present. The Attorney-General briefly replied, he said that the statutes enforcing the hue and cry were only enacted in aid of the common law, by this law the deceased, even as a good subject and citizen, was called upon to act, and he was bound to interfere as a constable when he heard cries in the streets, if it were only to protect the pursued party from the violence of his pursuers. His Honor having conferred some time with Mr. Hone, the Master of the Court, who sat on the hench during the whole trial, observed that he was very happy to have his views of the case concurred in by the learned Master of tbe Supreme Court. His Honor then explained the law in reference to the justifiable interference of officers attempting to arrest suspected offenders; it was for the jury to say whether the unfortunate man Winstanley was justified in his conduct; if they were satisfied of that, be should call upon them for a verdict if not, he should reserve the point; at all events there was a clear case to go to the jury. Mr. Macdowell who was evidently labouring under severe indisposition, proceeded to address the jury, but his Honor perceiving his exhaustion, suggested an adjournment; to this the learned counsel acceded and the court was accordingly adjourned until the next morning at ten o’clock. The jury were then conducted under the charge of Mr. Under-sheriff Crouch, to “The Macquarie,” where they were allowed fire and refreshments, and where they remained excluded from communication from without until the next morning. There was a report in the Town that Mrs. Cash, the prisoner’s wife was present during a portion of the day, we did not recognize her amongst the few females who had the courage to brave the crowd and gain admittance into the court-house.