CENTRAL CRIMINAL COURT.
WEDNESDAY. FIRST COURT.
BEFORE Mr. Justice Dickinson.
WOUNDING WITH INTENT TO MAIM.
Terence O'Brien was indicted for having, at Menan- gle, on the 6th March last, wounded one Mary Mulry with intent to disable her. A second count charged him with an intent to do grievous bodily harm.
The Attorney-General conducted the prosecution. The prisoner was defended by Mr. Faucett.
The prisoner was a farmer resident at Menangle.
Mrs. Mulry was the wife of another farmer in the same district, the the two farms being adjacent. There had apparentlybeen some ill feeling between the two families, or, at all events, between the two men, and on the day named in the information both men had been absent from home on business, and had got a little the worse for liquor. Prisoner arrived home first, and as his language and manner were excited, Mrs. Mulry became apprehensive lest he should go to meet her husband, and that harm should ensue. But she succeeded in getting her husband home, and in getting him to bed. He had come home in a cart, and Mrs. Mulry, after he had retired to bed, went to turn out the mare. On approaching the slip-panel, as she swore, she saw the prisoner approach rapidly from behind a bush, with a stick in his hand, and was immediately struck down by a blow upon the temple from him. The blow ren- dered her senseless; but when she recovered she found prisoner and his step-son, Delaney, standing near her. The latter accused the former of having killed her, but prisoner stepped across and dragged her along the ground by her hair. A person named Mark Devine, then in the employment of the Mulrys, came up and subsequently assisted Mrs. Mulry back to her house. After the arrival of Devine Mrs. Mulry told him to go for a doctor ; upon this the pri- soner pretended that he was himself hurt, and de- clared that one doctor would do for both of them : but Mrs. Mulry swore most positively that she had been guilty of no aggressive act towards him. Prose- cutrix was very severely injured. Not only was she cut and bruised much in various parts, but her right arm was dislocated at the shoulder joint. The wound on the temple bled very profusely in consequence, as was presumed, of a branch of the temporal artery having been ruptured. She had, she said, a miscar- riage the same night. Dr. Bell, who was sent for from Campbelltown, arrived early next morning, af- forded her the necessary care, and restored the shoulder. It had, however, been again dislocated since, in consequence of Mrs. Mulry having to work hard about the house and farm ; it was about eight or nine o'clock at night when the attack was, according to Mrs. Mulry'a account, made upon her by the prisoner. Dr. Bell had been sent for not only to attend Mrs. Mulry, but to attend O'Brien. He went first to Mulry's house, and his evidence as to the state in which he found her was such as fully to confirm her story as to the kind of treatment to which she had been subjected. When he arrived at O'Brien's, he found the prisoner on a sofa, apparently just awaken- ing from his sleep. Prisoner complained that he had been nearly killed by Mrs. Mulry, and that he suffered great pain, but the doctor only found a slight wound on the forehead-a mere abrasion, which had bled but slightly; some abrasions and contusions about the legs, and a contusion on the back of the head : all these hurts were very slight. The doctor was quite of opinion that O'Brien's complaint of severe pain was a mere pretence. The abrasion on the forehead might have been produced by a blow from a stone, but appeared more likely to be the result of a fall on stony ground. The slight injuries on the legs might have been produced either from kicks or from a fall ; prisoner appeared to have been drink- ing hard on the previous day, and to be recovering from the effects of the liquor.
The defence was that Mrs. Mulry had not only been the aggressor, but the only person who had been really guilty of violence. The prisoner's step-son, William Delaney, a youth of about sixteen, was placed in the box, and told in substance the following story:- He and his father and younger step-brother were return- ing home late at night, when they saw Mrs. Mulry getting over a two-rail fence which bounded her farm.
In doing so, she fell upon her forehead on a heap of stones which stood there. Prisoner spoke to her about being out so late, whereupon she took up a stone and flung at him, using very obscene language, and declaring that she had waited for the opportunity a long time. O'Brien did not retaliate, but the prosecu- trix returned to the attack again and again, throwing sticks and stones, biting and kicking, until O'Brien was covered with blood and declared that he was killed. O'Brien had no stick, and declared that "al- though he was murdered by a woman, he would not strike a woman." O'Brien was also attacked and beaten by Mark Devine, when the latter came up.
James O'Brien, son of the prisoner, a boy of about fourteen, gave an account of the transaction similar to that given by the last witness, except that in one im- portant point there was a discrepancy. Delaney said that he saw no wound or blood upon Mrs. Mulry while she was attacking O'Brien, while young O'Brien swore that her face and clothes were covered with blood from the time of her fall from the fence.
Both these witnesses, however, declared that Mrs. Mulry had, in the course of her attack upon the pri- soner, made as free use of her right arm as of her left, when, at this time, according to her own evidence, confirmed by Dr. Bell, this arm must have been ren- dered quite powerless by the dislocation of the
Mrs. Kelly, a neighbour, stated that she had been sent for to assist the prisoner on the evening in question, and found him lying on the ground ; he had a wound on his forehead and some scratches on the legs ; he was, or professed to be, unable to walk home, and was carried there. This was several hours later than the time mentioned by prosecutrix.
Mrs. Lawler swore that shortly before these occur- rences Mrs. Mulry had emphatically denied to her (witness) the fact of her being enciente.
The man who had been so much spoken of on both sides-Mark Devine-was not forthcoming. It was stated that he had left the place suddenly, and that all effort to produce him as a witness for the Crown
The Attorney-General having replied,
Evidence as to character was given by consent in the prisoner's favour. Mr. Hurley, of Campbelltown ; Mr. Vardy, of Menangle ; and Mr. Rouse of Appin, spoke of prisoner as an honest, industrious, and peaceable man. Other evidence of a similar kind was
His Honor summed up, directing the jury that the fact of an intent, as alleged, as well as the fact of a wounding by the prisoner, must be expressly found by them are they could declare prisoner guilty upon the first or the second count. But under the latter count they had also, by statute, a right to find the prisoner guilty of unlawfully wounding, if they found that he had really injured Mrs. Mulry, and were yet unable to find any express intent. There would be no legal excuse afforded by an assumption that prisoner had inflicted these injuries in retaliation for a previous attack upon himself. Although a person assaulted might defend himself, he must not retaliate by way of punishing the assailant, but must complain to a magis- trate. In this case, however, all violence on the part of the prisoner was expressly denied, and it was averred that all the violence was on the part of Mrs. Mulry herself. There was clearly, therefore, direct perjury on one side or on the other, and it was for the jury to say which story was the true
The jury after having retired for a few minutes, found the prisoner guilty of "unlawfully wounding."
Mr. Faucett suggested, on behalf of the prisoner, that there was a clause in his lease by which he would forfeit his land if convicted of felony, or sentenced to imprisonment for hard labour for misdemeanor.
His Honor expressed his perfect concurrence in the verdict of the jury. He felt confident that the prisoner had not only attacked and injured the prosecutrix pretty much in the manner which she had herself de- scribed, but had induced two boys-his son and step-son-to come to the Court, and tell a false story. He had no discretion to avoid awarding the punishment of imprisonment, with hard labour, for this offence, but considering the nature of the case, he, should not be disposed, by any regard for consequence, to exercise this discretion, even if he possessed it. The sentence of the Court was, that the prisoner should be imprisoned and kept to hard labour, in Sydney gaol, for twelve calendar months.
Before the Chief Justice.
ROBBERY ON THE HIGH SEAS.
Four seamen, named William Smith, Richard Scatterley, Nicholas Whately, and William Murray, belonging to the barque Woodlark, were charged with having, on the 28th April, on the high seas, stolen various articles of wearing apparel, the property of Adolph Halberbocken, steward of that vessel.
The prisoners pleaded not guilty, and were defended by Mr. Butler. The Solicitor-General prosecuted.
It appeared that upon leaving Manila the goods al- leged to be stolen were packed in a box in the stew- ard's cabin. The prisoners were seen by him moving the boxes, and shortly afterward the goods were missed. Two witnesses swore that they saw the prisoners four times in possession of some of the va- rious articles; This testimony was however contra-
dictory, and to some extent disclosed suspicion of con- spiracy against the prisoners.
The jury, without hearing any defence from Mr. Butler, returned a verdict of acquittal.
The Court adjourned sine die. [Editing Note: Please see Comments above - the surname HALERBOCKEN should be HALBERSTAEDTER]