SATURDAY MORNING, JULY 29, 1848.
Strenue et Prospere.
THE opinions which we have expressed upon the late trial have, as a matter of course, proved un- palatable to the Advertiser, but we are happy to say that they are shared in by the gieat body of the community, who, from the highest to the lowest feel that great injustice has been done, and this too without reference to the animosities or quarrels of the parties engaged. The mechanic and the la- bourer naturally enquire what would have been their fate under similar circumstances, and imme- diately a sense of injustice is kindled in their minds ; while the middling and higher ranks of life are alarmed at it, as calculated directly to strike at the foundations upon which property is based ; to say nothing of the natural indignation which accompanies an assault perpetrated under peculiar circumstances of aggravation. There was the lying in wait-there was the associate and accom- plice-there was the blow struck from behind, at the prosecutor's own door-all these circumstances have naturally combined to deprive the defendant of the least claim to consideration ; while, had the assault been committed face to face, when Mr Gregson an hour and a half before in Collins street, in the presence of persons passing and re passing, who would have taken care that there was no unfairness - no throttling,-every allowance would have been made for the sudden excitement of human passions.
We are told by the Advertiser that the evidence was insufficient ; that it was conflicting, et cetera
We do not pretend to be in the confidence of the jurors, but the discrepancies,, such as they were, were of the most trifling character, and are such- as are always incidental to the witnesses of a con- flict; that is, if they are the witnesses of truth. Where testimony is concurrent to a hair's breadth, it is invariably false. Everything material to the assault was proved-to say nothing of its being all but admitted by the defendant Gregson, and wholly admitted by the defendant Kemp. We shall, therefore, not do the jury the injustice of supposing.
that they could shut their eyes to the fact of an assault having been committed, unless they believed that Mr. Macdowell committed the assault and that Mr. Gregson was lying in wait, and subse- quently at the prosecutor's own door, in order to avoid being assaulted by Mr. Macdowell, and that Mr. Kemp's being there and walking " within hail" for a quarter of an hour, was, as that per- sonage-whose word, according to himself, has never yet been doubted-stated in Court, quite
Perhaps such was their belief. In charity we must suppose it was. We should hope that they were wanting in common intelligence rather than common honesty. But whatever the cause, the injury to society is not the less grievous ; for if such parties are the lawful judges of life and pro- perty, where is the security for life and property ? It is on that account we have suggested that some alteration ought to take place in the Jury Laws. If some test of competency be not required, the jurors ought not to be summoned from the same, but from separate localities. A man may deny his handwriting to a bond, or concoct a ludicrous story as to his being deceived, robbed, et cetera, and that all the evidence against him is "perjury," and may evade every obligation of life, if causes are to be tried and determined after the manner of this case, it is felt that the social and civil rights of the community ate trampled under foot, and the British spirit-true to its native soil-has, in con- sequence, arisen in indignation against it in every quarter, unless where weakness, wickedness, and profligacy may conspire to qualify or deride all the best feelings of human nature. It is not for a particular case that we speak, but for the common weal and the universal safety of the community. We are not to stand by and see open injustice per- petrated, on the maxim that it does not affect
ourselves-that we are not robbed-that it is not our case ; because once the seeds of evil are sown and allowed to grow, as they have unfortunately been in this colony, until they now rear their heads, aye, and frequently in impious wantonness, chal- lenge the lightnings of Heaven to cleave their branches and sear their stock,-it is difficult to tell to what limits they may run-what lands they may cover-or whose happiness they may poison.
If guilt were thus to claim immunity, owing to any such selfish consideration, it must gradually impregnate and putrify the moral atmosphere. Then all the distinctions of right and wrong, as they frequently have been in this colony, would be confounded, and it must become a chaos of crime. Divine providence permits moral scourges in every country, but Providence expects us to do our duty and to maintain that which is right. If we omit to do so, through selfish considerations, cloaked ui der the guise of peace and tranquillity, we do but lend ourselves to the encouragement and per- petuation of evil, and prostitute our mental and moral energies to the ignoblest of purposes. Such policy may serve a present purpose, but it is certain to create a permanent injury, and eventually to recoil upon ourselves.
The Advertiser has thought proper to correct a part of our report. We have referred to our reporter's notes, and find that his report is correct in that, although by no means a material particu- lar, for it is only natural to suppose that after Mr.
Macdowell was struck he wrestled with and struck at the defendant.
We may in return observe, that the remarks attributed to the Chief Justice in his charge to the jury in the report of the Advertiser are totally wrong, and are evidently manufactured for the
We now subjoin a report of the trial to which we alluded in our last number, and which we take from the columns of the Advertiser. We may premise that six of the jury who tried the case sat upon the late trial.
TUESDAY, 18th JULY, 1848.
The following jurors were sworn :-T. Cooley, J. Wiggins, W Ring, T. Avery, J. Brown, H. Pearce, J. Saddler, R. Hynes, T. White, J. White, D. M'Guire and J. Wheeler.
John Rathbone and John Smith were charged with putting in bodily fear Michael Donnelly, and stealing from his person, on the
11th June last.
Michael Donnelly-On the 11th June was living with Mr. Walker, at Macquarie Plains ; lived in the garden hut; there was a fastening to the door ; about nine o'clock I was in my bed and heard a rap at the door, and a person said, " open the door;" got up and opened the door; a stranger, to me, came iii dressed in flannel slop clothing he said, "Donnelly! don't be alarmed;" he said, as if talking to some one outside, "stop at the window you, and you come in ;" another man came iii and put his back to the door; Rathbone is the man; after warming his hands he went to my box and pulled out a pair of Sun- day trowsers, and from the pocket took 12s. 3d. ; he gave the trowscrs to Rathbone ; he took my flannel jacket and everything in my pos-
session ; he tied them up in separate bundles ; he took the bundles in bis hands, and both went out; the strange man had a stick in his hand ; (articles produced and identified ;) next saw them at the Police-office, New Norfolk ; I am sure Rathbone is one of the men ; cannot say positively to the other.
By Rathbone-I did not tell you that if you came to my hut I would give yon some clothes ; did not make tea for you ; did not put bread on the table ; did not give you my clothes ; I'd be a fool to give
you my hard earnings.
James Olding-Am a constable of the Brighton police ; saw prison- ers in Bagdad on the 14th June, and apprehended them on suspicion of being absentees ; they were together at the time ; when we got to Brighton they said they were, absentees from Glenorchy station ; I found the articles produced to-day on Smith.
Rathbone said, that he met Donnelly and asked him to give him some clothes ; he said he could not then, but if he would come to his
hut he would give us some ; we went in the evening, and he put some bread on the table, and the "billy" on the fire ; we told him we would not wait for anything to eat, but would take the things he was going
to give and go away; we saw nothing more of him.
His Honor summed up, and the jury returned a verdict of "Not Guilty." The foreman, in answer to a question from His Honor, said, the jury believed the witness had given the articles to the prisoners.