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2-236 (Original)

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John Kelly, holding a ticket of leave, was given in charge to a jury for the murder of Jack Smith, on the 13th of June last, at Stroud, by firing at him a loaded musket.
Mr. Cheeke appeared for the prisoner.
The Attorney General in stating the case, entreated the jury not pay it the less attention because the unfortunate deceased was an aboriginal native.
William Macdonald examined by the Attorney-General. - I am in the Agricultural Company's service at Port Stephens; the prisoner was a fellow-servant of mine, and lived with me in the same hut; on Sunday, the 13th June, the prisoner came into the hut about half an hour after sundown, and said that there was a large tribe of blacks coming with a bad intention; he told me to get a waddy to defend myself; he took a musket himself and loaded it with duck-shot; in the morning he had told me that he would get some shot from Mr Darby; the prisoner brought three black fellows to the hut; one of them said that he did not want to harm the prisoner, but that he only wanted his gin or wife; he said part of this in his native language; I only saw three blacks there; the prisoner himself brought the blacks to the hut; he told them to come in and satisfy themselves that the black gin was not there; when they went in he said if they came out he would shoot them; he was then outside the hut; he said that they came to steal corn and not for the gin; there was no corn in the hut then; I was at the door; the blacks were not two minutes in the hut; they rushed out, and when they got to the end of the hut the gun went off; I saw the smoke and fire, and the prisoner's hand moved; I cannot swear that the prisoner pulled the trigger; the gun was pointed to the blacks; they were seven or eight yards off at the time; the prisoner stood at the door; he loaded the gun again; I did not see any of the blacks fall; I ran to the farm and told Mr. Darby about the matter; I stayed with him all night; the blacks had boomerangs with them; they did not offer us any violence; I saw no one of the blacks dead; I don't know who owned the musket; it was for shooting at cockatoos.
Cross-examined by Mr. Cheeke. - I have been two years in the Company's employ; the prisoner and I lived together for a week; he had the gun for some time before to keep the cockatoos from the maize; I used to fire at the cockatoos; I don't know whether I fired off the gun that day; it was dusk when the Blacks came to the hut; I could see about a quarter of a mile off at the time; the prisoner brought the gun from the hut; the day before the prisoner fired the gun at the Blacks it was fired off at the cockatoos by the prisoner; sometimes the gun was loaded; it was not loaded on the Saturday night; I did not see the prisoner load the gun that night; I saw him put up the gun that night, and it was not then loaded; the gun had an iron ramrod; the prisoner was not many minutes loading the gun; I saw him loading it; he was then about fifteen yards from me; he was standing still at the time; I was so frightened I did not see him prime the gun; I was frightened with the noise; the three blacks had boomerangs; I only saw three, but I heard the noise of two or three more; they were hooting; I told Mr. Darby that there was a lot of blacks at the hut with boomerangs; I never saw or knew the blacks to steal corn; but the prisoner the day before shewed me the marks of a foot near the store; when the blacks were in the hut the prisoner said something to me about going to Mr. Darby, about a constable or about reporting the matter, but it is so long since I don't recollect what he then said; I did not know the blacks or any of them; the words of the blacks might have meant "me do you no harm;" I looked at Kelly when the blacks were running away, because I was frightened; I did not hear the gun cocked, but it was pointed against the blacks when they rushed out of the hut; I did not see the prisoner present the gun at all; I did not see the prisoner change his place, but when the gun went off it was pointed at the blacks; I did see the prisoner turn round when the blacks rushed out of the hut; when the prisoner turned round the gun went off immediately; I remained all night at Mr. Darby's, and would not go back again to the hut.
To a Juror. - The musket was an old one; but I do not know whether it went off at half-cock; the prisoner was in a horrid passion when the gun went off. The witness described the prisoner's position when the gun went off, and from his description, it appeared, that when the gun went off its position was nearly the same as it had been while the blacks had been in the hut, and that they ran in the direction to which the gun was first pointed.
To a Juror. - I never saw any gin with Kelly at the hut.
To Mr. Justice Stephen. - The blacks came quietly into the hut, and were brought there by Kelly; I think he told them that they had come to steal corn; the door remained open all the time; while the prisoner was speaking to me the blacks rushed out.
James Charles White examined by the Attorney General - I saw the prisoner in June last one morning; I was looking out for a constable, but he came to me himself; I asked him how he came to shoot the blackfellow; he said what was I to do when the boomerangs was flying about me; the prisoner said he came to tell me of the circumstance as I was superintendant; he said he had been too sharp for the blacks, and that he up with his musket and let fly at them; I ordered him into custody, and he said he did not want to run away; Macdonald did not tell me that the prisoner had fired at a black; he only said he thought there would be a row about a black gin; when I went to the black camp I saw Jack Smith; he was lying before the fire in great pain; he had been a very quiet lad; he was wounded in the back and complained of a pain in his abdomen; he seemed to have been wounded by shot; I brought him medical attendance; he died that day; I know nothing about the prisoner's having had a gin with him; I put Macdonald into custody with the prisoner; the prisoner had been about four years with the Company; the blacks are always at Stroud, and the prisoner must have seen the deceased who could speak English very well; the Company give the blacks a feast at Christmas; I think the prisoner must have known the deceased.
The Attorney-General was about enquiring as to what the deceased said when lying before the fire, but Mr. Creeke objected to any such evidence, and Mr. Justice Stephen said, that the evidence was inadmissible, unless it were shown that the deceased was conscious he was dying, and believed in the existence of a future state.
Cross-examined by Mr. Cheeke. - The prisoner came to me early in the morning of his own accord; I went them to the Camp and saw Jacky Smith; the family of the deceased consisted of three persons; one of them was called Gammoning Smith, and the other Jemmy Smith; the deceased was called Jacky or Jacky Smith; he was called after his master's name; the father and sister of the deceased are great thieves; I have heard that the blacks have stolen corn from [t]he hut where it is kept; the prisoner was always a well behaved man.
To a Juror. - The prisoner had charge of the corn.
To the Judge. - I never heard of another black being wounded; I would trust the prisoner with any thing; but I think he is a bad tempered man, though no complaint was ever made to me against him.
John Power examined by the Attorney General. - I am a Constable at Stroud; I know the prisoner; I knew Jack Smith well; I live half a mile from the prisoner's hut; at sun-down on Sunday, Smith and another black told me they were going to the prisoner's hut; I did not see any thing with them; on the Monday after I saw Smith at the Black camp, and I saw him dead on Tuesday, I apprehended the prisoner near the lock up on Tuesday; he had a musket with him; the deceased was a very nice young lad, and was never troublesome or offensive; the prisoner said, when I took him in custody on Tuesday, and told him that Smith was dead, that he was sorry for the deed.
Cross-examined by Mr. Cheeke. - I remember what passed very well; the prisoner made no resistance to me when I took him into custody; the musket goes off at half-cock; it has a bad flint, and never throws open the pan; I only saw two blacks on the Sunday night, but there were a good many about the place; they used to call the deceased Jack Smith; the Europeans used to call him John; Jack Smith was the common name for him, and I'll stick to that name; it is usual to c[a]ll the blacks by a Christian name o[n]ly.
James Price examined by the Attorney-General. - I have known the prisoner for some time; but I did not know Jack Smith, though I have been at Stroud for 15 years.
Cross-examined by Mr. Cheeke. - I never knew any black of the name of Jack Smith; the blacks are generally called Jacky, or Harry, or some such name.
Robert Mackintosh examined by the Attorney General - I am a surgeon living at Stroud; I examined an aboriginal native who went by the name of Jacky Smith; I saw him after death at the black camp; he died from a gun shot wound in the back; the wound was on the hip; I found no shot in the body, but I found the intestines lacerated by some foreign matter; I think that the shot had not scattered, and that the deceased was about four or five yards from the person who wounded him.
Cross-examined by Mr. Cheeke - I saw Jacky Smith the morning after his death; the man I saw was called Jacky Smith; I saw him on the 14th June; I saw Smith twice; once I saw him in Company with White; I always thought Smith was in danger.
To the Judge - The shot ran in various directions; the deceased was a young man above the middle stature, and a little beyond the age of puberty; he might have been shot by a gun held at the shoulder by the party who fired it, but I cannot say whether the gun was held as high as the shoulder or not.
The witness applied for remuneration for his attendance as a professional man, but Mr. Justice Stephen said, that he had no power to allow the witness any compensation beyond the ordinary payment of a witness's expenses, though he thought professional men were well entitled to some remuneration beyond their mere travelling expenses.
Power recalled by the Attorney General. - The Jack Smith I saw going to the prisoner's on Sunday, was the Jack Smith I afterwards saw dead, and examined by Mr. McIntosh.
McDonald recalled by the Attorney-General. - I did not tell Mr. White that the prisoner had fired at the blacks, because Mr. White ordered me away; I had a quarrel with the prisoner a week before the black was shot.
Cross-examined by Mr. Cheeke. - I cannot say how long I was at Mr. White's, but I had time to say that the prisoner had frightened the blacks, thought I did not say that he had fired at them.
To a Juror. - When we quarrelled, Kelly struck me with a waddy, and the doctor said my arm was broken or splintered.
The Attorney-General closed his case with this evidence. 
Mr. Creeke submitted, that there was no evidence that the man who was proved to be deceased was shot by the prisoner, or that that man was called Jack Smith.
Mr. Justice Stephen held, that there was evidence upon these points to go to the jury.
Mr. Creeke then addressed the jury for the prisoner, and called
William Darby. - I am bailiff of the Agricultural Company; I know the prisoner and McDonald; on Sunday evening, soon after sundown, McDonald came to me and said to me that a number of blacks came near the hut, and that three came to the door and demanded a black gin; that Kelly admitted them into the hut, and told them to stay there till McDonald went for a constable; McDonald told me that the blacks had boomerangs, spears, and waddies; he said that he did not see Kelly lift the gun when he shot the blacks, and that he believed Kelly did not shoot them intentionally; McDonald is a thorough liar; and I have known him for about twelve months; the blacks have stolen maize, and are a nuisance to the settlement; I have never known Kelly injury [sic] the blacks; he for some time maintained a black man with him, and paid for his maintenance.
Cross-examined by the Attorney-General. - I cannot say that Kelly is a good-tempered man; I do not know whether Kelly ever had a black woman with him; I cannot mention any instance of McDonald's lying; McDonald said to me that he did not think the firing was intentional by Kelly; he told me, too that Kelly had not raised the gun to his shoulder when he fired it.
To Mr. Justice Stephen. - I cannot say that I would not believe McDonald on his oath.
McDonald recalled by the Attorney-General. - I don't recollect having told Mr. Darby that the blacks had spears; I know that they had no spears; I don't remember having told Mr. Darby that Kelly had fired unintentionally at the blacks.
The Attorney-General addressed the Jury in reply.
Mr. Justice Stephen charged the Jury. The learned Judge read over the whole of the evidence, and commented upon it at great length. The Jury retired for about a quarter of an hour, and upon their return to Court, delivered a verdict of Guilty, but strongly recommended the prisoner to mercy, on account of his good character.
In answer to Mr. Justice Stephen, the Jury stated that they believed that the prisoner had fired the gun intentionally, and with the design of hitting some of the blacks.
The Attorney-General prayed judgment against the prisoner, and Mr. Justice Stephen (having remarked upon the ability with which the prisoner had been defended, and upon the probability arising from the whole of the evidence, that the unhappy murder had been committed in a moment of bad temper) sentenced the prisoner to death; but promised that, though he could hold out no hopes of mercy to the prisoner, he would lay the whole case before his Excellency the Governor, who alone had the power here of commuting the sentence of death.