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2-236 (Text)

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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