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11 corrections, most recently by michaelchristensen - Show corrections



BEFORE His Honor the Chief Justice.


James McPherson, alias The Wild Scotch- man alias Kerr alias Alphin McPherson, was placed at the bar, charged for that he, on the 4th March, 1864, at Houghton River, in and upon one Richard Henry Willis, feloniously did make an assault, and put him in bodily fear of his life; and three cabbage tree hats, two pairs   of riding pants, one pair of boots, one gun, one crimean shirt, one bottle of whisky, and fourteen pounds of flour, of the property of the said Richard Henry Willis, feloniously did steal, take, and carry away. The prisoner was also charged with feloniously wounding.

The prisoner pleaded not guilty.

The Attorney-General appeared for the pro- secution, and Mr. Pring, instructed by Messrs. Keane and Eowles, defended the prisoner.

The ATTORNEY-GENERAL having opened the

case, called

Richard Henry Willis, who deposed ; I live at Townsville, Kennedy district, and am at pre- sent out of business ; in March, 1864, I was a licensed publican on the Houghton River ; I also carried on the business of a blacksmith and storekeeper ; John Hill was in my employ as a blacksmith ; on the morning of the 4th March, 1864,I was in my public house; about   10 o'clock in the forenoon I was behind the bar settling with two travellers who were just leav- ing ; one was named Fendilon, and the other Morred, when a man came in and called for drinks ; the prisoner is the man; I supplied   the drinks ; he was then alone; the prisoner   also asked for a small bottle of brandy, which I supplied ; he tendered me a 10s. calabash of Burns and Company, in payment ; I had no silver for change, and asked what I should do;   he said " Give it to the next traveller;" Fendilon, who was leaving, said, " My swag is heavier than yours ;" prisoner said, " If you are going my way, I'll carry it for you;" he,   prisoner, picked up the swag, and he, Fendilon, and Morred, all left together; about three quarters of an hour after, three men rode up to the house ; two came in, and the other held the three horses ; one of the men was Charles Dawson, whom I had seen before ; the second was a man I know as Charles Macmahon ; the third was the prisoner at the bar, whom I had not seen before that morning; I went behind the bar ; the prisoner came to the end of the counter, also Charles Macmahan ; the prisoner said " We want something to eat some rations, a new saddle, some slops, and what loose money you have ;" I said, " Is there anything else you want ;" he said, " We're in earnest," and presented a revolver at me, and requested Macmahon to tie me up ; I said if they were in earnest so was I, and it was time to drop that game ; prisoner again said to Macmahon, "Tie him up ;" (I drew back, and   said " Go to blazes ;" prisoner said, " Oh, you had better be quiet, or we'll make you," pre- senting his revolver close to my head ; think- ing still they were not in earnest, I told him to fire away ; at that time a blackfellow came in and wanted to go out again, but Dawson would not let him, but proposed to tie him up ; as Macmahon was going out, he saw a single barelled gun of mine; he took it up, and said he'd better uncap it ; prisoner told him to put it outside the door ; he did so ; the prisoner took his eye off me for a moment, and upon my attempting to got hold of a hammer on the counter with one hand, and with the other the revolver, prisoner fired; the next thing I re- collect was I was lying on my back;   I felt blood in my throat ; on looking round I saw the prisoner taking things down from the shelves ; I saw him take two or three pairs of riding pants, which he handed to some one on the other side of the coun- ter ; I saw him pass a pair of Wellington boots to Charles Dawson ; I saw prisoner then hand some cabbage-tree hats across the counter, and Dawson was strapping the things on a horse at the door ; I saw Elizabeth Gordon come in, also my wife ; my wife came to where I was lying and raised me up ; I then heard Dawson say, in prisoner's presence, "I would not have shot him—if I'd known you intended to take life, I'd have had nothing to do with it ; " pri- soner said, " What I say I mean ;" prisoner then took a bottle of whisky, and all three got on their horses and rode from the door ; after my wife had raised me up, prisoner came to me and said it was not much ; after they had left, my servant, John Hill, came in, and came to me where I was sitting on a cask ; I was not ex- amined by a doctor ; there was none nearer than Port Denison, 128 miles from my house, at that time ; I was assisted to bed and sent into the nearest station, but I got no medical assistance ; the ball entered the contre of my cheek ; I felt a violent pain at the back of my mouth, and bleeding, also at the back of the neck intense pain ; I was unable to move on the bed, and was confined to it for a fortnight; about two months afterwards I felt a swelling in my throat, and one afternoon, on coughing, I felt something on my tongue, and found it was a small piece of leather, with a circular hole in the centre ;" I have seen similar pieces on revolver bullets ; no ball ever came out ; bleeding continued from my mouth and face for some time after I was shot ; the next time I saw the prisoner was in the Police Court, Bowen, about June or July, 1865.

Cross-examined by Mr. PRING: The man who came in the morning first when Fendilon and Morred were there had a red shirt and mole- skin trousers, and no boots ; he had a hat on;   I can't say what kind of hat ; he had a little whisker ; the man who rode up on the second occasion had a pair of Bedford riding pants, riding boots, spotted shirt, and cabbage-tree hat, light brown hair, and scarcely any whisker ; it was about 11 o'clock when he rode up, and it was about 10 o'clock when the man left with Fendilon and Morred ; up to a certain time I treated the matter as a joke ; at the time the pistol went off I was standing at the end of the counter ; I was trying to get hold of a hammer with my right hand, and with the left I was attempting to got hold of the revolver ; it was a large revolver, but I could not say whether it

was cocked or not ; I did not see the hammer rise and fall ; at the moment before the pistol went off the prisoner's attention was momen- tarily diverted; he was looking at Macmahon, and     I was attempting to get hold of it when it went off ; he (prisoner) did not use such language that made me suppose he intended to take my life ; he could have blown my brains out if he had liked ; after I was shot, as soon as I could move, blood came out of my mouth ; I felt choking ; I felt a wound at the back of my mouth ; I believe the pains I complained of were not caused by the fall after being shot, but I will not swear they might not be so ; when the pistol was held to me I saw the other chambers were loaded with ball wrapped round with paper ; they were conical bullets ; as soon as I was put to bed I called for a glass, and I then saw a hole in my cheek from which blood was flowing ; it was not more than three minutes after he presented the revolver that I was shot ; I was taken to Bowen to see whether the prisoner (who had been brought from Sydney) was one of the men who had stuck me up ; when I saw the prisoner at Bowen he had on a crimean shirt, dark colored trousers, and blucher boots ; when I was called in, prisoner was standing alone at the bar of the police court ; I immediately recognised him ; he was not described to me before I went into court; I   recognised his features, and was still more posi- tive when I heard him speak ; as I was lying down I saw prisoner taking things off the shelf and taking them out of the house ; the other two were helping him.

Mr. PRING here objected that the information did not allege that the prisoner committed the offences charged with others.

His HONOR took a note of the objection.

Re-examined by the ATTORNEY-GENEBAL : I am positive as to the wound in my cheek ; I felt the pain at the back of my head as soon as

I came to.

By the Court : I could not tell whether the hole extended to the inner part of the cheek.

Examination continued : I coughed up blood directly after.

John Hill, examined by the ATTORNEY-GENE- RAL, : I am a blacksmith, living at Dnebo Creek ; I know the last witness; in 1864 I was in his   service as blacksmith ; some day in March, or the latter end of February I saw a man pass the shop with a swag on his back ; he went into Mr. Willis' public-house ; I was going in at the time to get some nails ; he (the man) was drink- ing at the bar ; I got the nails, and went out to the blacksmith's shop again ; about an hour afterwards, while at work, I heard a shot fired, apparently in the public-house ; on looking out I saw three horses at the door, and one man named Macmahon holding them ; my sister, Elizabeth Gordon, was coming out of the pub- lic-house, and I went to meet her, when one of the men came out and ordered her back; I went   straight on to the public-house, when a man came out, and presenting a revolver, said, " If you come another inch I'll shoot you ;" that man is not here to-day ; (then looking at the prisoner) that is the man ; I then returned to the shop and stopped about five minutes, when the three men mounted their horses and rode away ; one of them returned again to the public house and took up a single barrelled gun, and then the three rode away together ; I then went, into the public house and found Mr. Willis lying be- hind the bar on a cask ; I went off to the first station, 30 miles distant ; my sister and Willis' wife were attending to him ¡ I came back, and went to Port Denison ; Mr. Willis' cheek was covered with blood when I saw him ; it was the prisoner whom I saw carrying the swag in the


Cross-examined by Mr. PRING: I was ex- amined before the magistrates, but I never said anything about seeing the man with the swag drink- ing in the morning ; I forgot to mention it ; the man I saw in the morning was dressed in a Crimean shirt, and a blanket round him rolled up like a collar ; I was not a minute in the pub- lic house, but I will swear it was the same man who afterwards came out and told me not to advance ; he then had long boots and breeches on ; I never saw the two men the prisoner was drinking with till the night before ; I can't say whether the men who rode away had any swags

on their saddles.

Dr. Lansdown, examined by the ATTORNEY- GENERAL : I am the visiting (?) surgeon of the Brisbane Hospital; I have examined Mr. Willis ; I find the mark of gunpowder, and the

cicatrice of a wound evidently a gun shot


Cross-examined by Mr. PRING : I could not say whether it was made by a conical or round bullet ; I should think a round bullet ; I have examined the neck, but cannot find the bullet, it has glanced off and is probably now in some of the soft parts of the neck; the wound shows an horizontal position.

By the Court : I am sure the wound was caused by a bullet or some hard substance, not by powder alone.

Elizabeth Gordon, examined by the ATTOR- NEY-GENERAL: I live at Port Mackay; my   husband is a butcher; I remember March, 1864 ; I was then on the Houghton River ; I know Mr. Willis ; I remember three men came and stuck up the public house ; Mr. Willis was in the bar ; when I first went in he was lying sense- less behind the bar ; there were two men in the house and one at the door ; the prisoner at the bar is one of the men ; I saw him once before that day, about Christmas-day, 1863, at the Fanning River ; he was travelling up country, and camped there one night ; I was not in his company but saw him hobble his horse and camp ; the hut he was in was the men's hut, a few yards from mine ; on the day of the sticking up I heard the shot fired just as I was going into the bar ; the prisoner was stand- ing just outside the counter ; Dawson said I was not to interfere at all ; I went to assist Mr. Willis up ; I saw a revolver in prisoner's hand ; I saw him afterwards take a Crimean shirt ; Willis was then sitting on a box; he was then   wounded ; his face bleeding.

Cross-examined by Mr. PRING: When I first   saw the man whom I have said is the prisoner at the Fanning River, it was dusk ; I did not carry the man s face in my mind from that time till I saw him again in March ; I have never seen the prisoner since I saw him at Willis' public-house in March, 1864, till this minute ; the height of the man I saw at Willis' was about 5 feet 3 inches ; I will swear to him by his features ; when I went into the house and saw what was going on I was flurried, but I did not faint ; I went straight to Willis, and as- sisted him ; prisoner was there a quarter of an hour after I went in ; he was turning over the goods ; prisoner had on long boots, breeches, light shirt, and cabbage-tree hat.

This was the case for the Crown.

On the motion of the ATTORNEY-GENERAL, the information was ordered to be amended by adding the words " and in the presence of" to follow the words " from the person in the in-


Mr. PRING then addressed the jury, and com- menced by reminding them of the very im- portant question which they had to decide, and he should tell them, that after all the case for the Crown rested entirely upon what he might term opinion evidence ; nor was the prisoner identified by the witnesses as the man who committed the offence in March, 1864. Looking at the lapse of time, did they the jury believe that they had borne the features of the prisoner (even supposing the prisoner was the man) in their minds for two years? Was there any distinguishing marks on the man that they could identify him? None were spoken to. He (the learned coun- sel) contended that the evidence was not of that reliable character that a jury would re- quire upon so serious a charge. They (the jury) would remember the very short time the witnesses were in the prisoner's presence at one time, and he begged the jury would not allow their minds to be influenced by the notion that they had The Wild Scotchman, by whom it was said many offences had been committed. Then there was the way the prisoner was iden- tified at Bowen ; not in the usual way, by putting him amongst a number of men, and allowing the witness to pick him out, but by placing him singly at the bar of the police court, and of course the prosecutor imme- diately said that was the man ; but the jury would say what weight was due to such identi- fication. Did they believe that the witness, Elizabeth Gordon, who had, as she alleged,

seen the prisoner once at dusk on the Fanning River in 1863, and then for the short time at Willis' house in March, under circumstances of great excitement, and not again till to-day in court ? The learned counsel concluded a very eloquent speech, resting his defence princi- pally on, as he contended, the weakness of the proof of identity. He then proceeded to analyze the evidence in support of the charge of larceny after wounding, and con- tended that the evidence went to show rather that the discharge of the pistol was the result of accident, it being distinctly admitted that at the moment it went off, the prisoner's attention was diverted by some one coming in at the door that the pistol was one known as a self-acting one, and Mr. Willis attempting to take advan- tage of his being for a moment off his guard, the mere nervous trembling of the prisoner's finger would discharge the pistol ; there was no motive for tho prisoner's shooting Mr. Willis. His, the prisoner's, life was not in danger, and the subsequent anxiety he evinced as to the extent of the injury Mr. Willis had received negatived the assumption of the guilty inten- tion with which it was sought to charge him. Then there was great stress laid upon the words " I'm in earnest ;" but they might be inter- preted as showing the prisoner's intention to have the goods he mentioned, and even the loose cash ; and he, the learned counsel, con- tended that that was their true interpretation, and not that he was in earnest in his intention to shoot Mr. Wills. The learned counsel summed up by calling on the jury to give their serious consideration to the case, and he felt that they would feel bound to find that the case

against the prisoner had not been proved to

their satisfaction.

Mr. PRING here took a formal objection that

the goods and chattels laid in the information were not proved to have been the property

of the prosecutor.

Richard Henry Willis recalled : The articles taken by the prisoner were my property.

The ATTORNEY-GENERAL then replied upon the whole case, and told the jury that it was not their province to take into their consideration the consequences to the prisoner, should they feel bound to find him guilty. And with regard to the quostion of identity, they had the most positive evidonce of Mr. Willis as to the second man who came to his house being the same man as the first, though in a different garb; and the   very fact of his (Willis) being kept under cover of the revolver for some time was most calcu- lated to fix his (the prisoner's) features indelibly on his mind ; and that the words the prisoner used showed his deliberate intention to carry out his threat, and that it was to the very acci-  

dent of his attention being called off for the moment that saved Willis from having his brains blown out. Then there was the evidence of Bill, whe spoke positively to the prisoner as being the man who threatened to shoot him if he did not go back. It has been asked what motive the prisoner had to fire at Willis. The jury were not bound to find a motive, if they were satisfied with the fact they would say so. The learned counsel concluded his reply by calling on the jury to say that he had clearly brought home the charge to the prisoner.

The CHIEF JUSTICE then proceeded to sum up, and commenced by reverting to the amend- ment that had been made, and said that if ne- cessary he should take their opinion on each question—whether he (the prisoner) stole in the presence of, and whether he stole from the person of, the prosecutor. He (the Chief Jus- tice) would read the whole of the evidence, and it would be their duty, unswayed by the argu- ments of either of the learned counsel, to say whether they were satisfied with the evidence ; if not, it would be their duty to say that the prisoner was not guilty ; on the other hand, if they were satisfied with the evidence against the prisoner, it would equally be their duty to find him guilty. With regard to the circumstantial evidence, it was next to nothing. There was no proof that the prisoner was seen going to tho house or coming away from the house, or that he was seen in company with the two men said to have been present. Respecting the question of robbery, it mattered not whether it was the hand of the prisoner who took the articles. The act of one of the other men who rode away with the things was the act of the prisoner, supposing they were acting in concert. For the defence, it was said : Oh, here's a man who bears a name of ill omen, which pre- judiced him, and that the witnesses, with minds acted on by that prejudice, and with facts half obliterated by time, go and see the prisoner under suspicious circumstances, and immediately say that's the man.

The learned CHIEF JUSTICE addressed the jury at great length on all the points of the case, and then proceeded to read the whole of the evidence to tho jury, who retired at seven minutes past 6, and at twenty minutes past 6 returned with a verdict of not guilty.

On the motion of the ATTORNEY-GENERAL the prisoner was then remanded to gaol, as there are other charges against him, which will

be tried elsewhere.