Evidence Type: Newspaper Report
6 May 1834
SUPREME COURT— CROWN SIDE
FRIDAY — Before JUDGE DOWLING and a Jury of Inhabitants.
THOMAS CLARK was indicted for the wilful murder of FURGUS CUNNINGHAM by firing at him with a pistol, loaded with powder and ball, at Parramatta, on the 22nd of March.
THOMAS CAINS left Sydney with a dray and team which was in charge of deceased, who was an assigned servant of SIR JOHN JAMIESON, when they arrived at the Irish Arms public house situated on the hill where the old toll-bar formerly stood near Parramatta, witness laid himself on a form in the kitchen of the house, as he was suffering from bruises received in consequence of the dray overturning on the road; when he had slept for some time, he was awoke by the servant girl who said he was a pretty fellow to remain sleeping while his companion was lying outside the house, shot dead, he laughed at it, but she repeated her assertion, when he went out and saw deceased lying on the ground breathing hard, he observed a hole at the corner of one of his eyes, through the scull and hat; several persons were present, but he did not see the prisoner till the evening at the inquest.
DR. J. B. FAVELL saw deceased about two minutes after he had been shot; observed a ball had entered the right eye, passed through the brain and back part of the head; the wound was sufficient to have caused death; the ball was of a large description.
MARY HOUGH lived opposite the Irish Arms, on the Parramatta Road; was standing at the window of her house ironing, saw prisoner coming from Parramatta, and go into the Irish Arms; in five minutes afterward he came out and reclined against the front of the house, deceased came out immediately afterwards, and went towards his team of bullocks that were at a short distance, laid hold of their horns, as though playing with them, at the time he had a small piece of batten in his hand, he let go of the bullocks and came towards the house, prisoner advanced towards him and they stood face to face about a minute; deceased flourished the batten before prisoner, but not in a striking position; prisoner raised his pistol, and in a moment fired at deceased who fell immediately; prisoner stepped forward to look at the body, he then turned round, and put his hand to the back of his neck, as if he pretended he had been struck, but such was not the case; witness saw the whole of the transaction, having waited a moment to see if deceased would move, witness ran out and said to prisoner, “you villain, you have murdered the man,” then spoke to the landlady of the house to have him apprehended for the murder: prisoner said something but she could not hear what, he did not complain then of having been struck; it was not five minutes from the time deceased came out of the house, till he was a dead man.
Cross-examined— Witness never took her gaze from the transaction during the whole time; deceased was within arms length of prisoner, and within striking distance, deceased did not appear as if he was going to strike prisoner; prisoner did not attempt to run away, witness was about twenty yards distance from where the transaction took place, there were no words used, or witness must have heard them; the pistol might have gone off accidentally.
H. BULL was at the Irish Arms public house, taking dinner with deceased, who went out, and in five minutes heard a pistol fired, witness went out and saw deceased lying dead on the ground; prisoner was in custody of MR. LACEY who handed him over to witness; he had a pistol in his hand which appeared to have been recently fired, the pan was damp and smoke was coming out of the muzzle; a piece of batten was lying near the deceased, about three feet long, three inches wide, and half an inch thick; witness did not see prisoner inside the house; did not see the last witness on the spot, if she had been there must have seen her.
CATHERINE CAVENAGH.— Is an assigned servant to MR. TITTERTON of the Irish Arms; on the day in question she was at the parlour window, which is on the ground floor, saw prisoner coming with a pistol in his hand, deceased turned round from his bullocks, prisoner walked quick up to him, presented the pistol to his head, and fired at him, deceased fell, prisoner turned and looked at him, and then put his hand to the back part of his neck, no words passed between them, they were about a yard and a half distant from each other, prisoner had been there in the early part of the morning with four factory women; prisoner was not drunk, but thinks he had been taking a little, the pistol fired could not have been an accident, prisoner made no attempt to escape; did not see deceased with a batten.
MR. J. LACEY apprehended the prisoner, he appeared quite at a loss, and did not say anything, heard a man named J. MALONE order spirits in the morning for the women in charge of prisoner which he would not allow them to have, only some half and half, thinks deceased was there at the time, in the paddock with his bullocks.
SIR JOHN JAMISON, master of the deceased, gave him an excellent character, and had never seen him intoxicated, was not aware that he had been punished only once, and that unjustly.
Proceedings before the Coroner were then put in — This closed the case for the prosecution.
In defence prisoner stated-— That when he arrived there that morning, he had four women in charge, one of them had two bonnets, one of which she requested him to take to her husband, he said he would, and left it in charge of the landlady, two men who were there wished to give the women spirits, which he refused but allowed them to have some beer, he then left the house, delivered the women, and then returned for the bonnet in about two hours, he met the deceased who came staggering drunk against him and called him a d— d old scoundrel for not allowing the women spirits in the morning, he told him that he could not, it was against orders, CUNNINGHAM then made a kick at him, which he avoided, he then struck him a blow on the arm with the batten, he told him to go away, when deceased again raised the batten and faced him, he put up his pistol which he had in his hand to guard the blow, but whether from the blow or his finger being on the trigger, it went off fatally, he had never seen the deceased before that morning, therefore, could any man say that he had any malice or premeditation in committing the act. The prisoner then contrasted several points of evidence which varied.
Six witnesses were then called who gave the prisoner an excellent character for kind heartedness and humanity.
His honor JUDGE DOWLING then summed up. This was a case of deep importance to the public and the prisoner at the bar, as his life was in the hands of the jury, and he hoped they would pay every attention to the evidence before they made up their minds to a verdict. The offence with which the prisoner was charged was the highest in the catalogue of crimes except high treason; any man who deprived a fellow creature of life was prima facie guilty of murder, and the onus rested upon him to show that the act was excusable. The evidence in this case rested mainly upon the testimony of the woman who was ironing, and the servant at the public house, and if there was nothing to relieve him from their testimony, he was guilty of murder, but it behoved them to bring into that box their knowledge of the world and of human nature, to come to a satisfactory conclusion; they would remember the sex of the witnesses, whom humanity and feelings were always enlisted against what appeared to be cruelty and oppression; they would observe that the prisoner had not premeditated the act of arming himself, being a constable, he was lawfully armed which explained away that fact. The defence, was that the piece going off was accidental and not wilful, but what a prisoner said in defence could not be taken as evidence, only where it supplied a link in the chain on the part of the prosecution, or to explain any reasonable probabilities, and it was competent for Juries to take his statement into consideration, and try it by the evidence brought against him. The learned Judge then recapitulated the evidence, and the Jury, after an absence of forty minutes, came into Court and acquitted the prisoner.
Mr Sydney Stephen defended the prisoner.
Female Factory Online (femalefactoryonline.org), “UNIDENTIFIED FACTORY WOMEN,” https://femalefactoryonline.org/law-reports/p18340506/, accessed [insert current date].
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