Supreme Court, Melbourne, Nov.
(Before His Honor the Acting Chief Justice.)
THE BALLAARAT MURDER.
James Francis Bentley, Catherine Bentley, his wife, John Farrell and William Henry Hance, were informed against that they feloniously and of their own malice aforethought did kill and murder one James Scobie, on the 7th of October, in the present year.
The prisoners pleaded Not Guilty. Mr Michie appeared for Farrell; Mr Ireland for the Bent- ley's, and Mr Whipham for Hance. (The female prisoner who was in tho seventh month of preg- nancy, was permitted to be seated in the dock. During the afternoon she was taken very ill, and two medical gentlemen were requested to render their assistance. We believe it was at first sup- posed that premonitory symptoms of premature childbirth had manifested themselves, and the Court adjourned for half an hour to enable the medical men to assure themselves that her trial could safely proceed. The prisoner, however, re- covered herself sufficiently to remain in court during the remainder of the protracted trial. At its close His Honor directed that she be discharged immediately, in order that she might obtain that
attention and assistance that her condition de- manded.)
Tho Attorney-General, with whom was the Solicitor-General, appeared for the Crown, and addressed the jury in a comprehensive summary of the leading facts, which were afterwards proved in evidence.
The persons now at the bar were informed against for the wilful murder of James Scobie, but he wished to tell them at the outset, that if they were not entirely satisfied that the evidence to be produced before them fully bore out the charge of the graver offence of murder, they could take a merciful view of the case, and find the prisoners guilty of manslaughter. He invited their calm and patient consideration of the evi- dence, and begged, of them to discard from their minds anything they might have heard previously respecting the death of the unfortunate man, into the circumstances of whose death they were now about to enquire.
The following witnesses were then called, and, at the request of the learned counsel for the pri- soners, they were all ordered to leave the court until called in to give their evidence:
Peter Martin sworn-On the 9th October I was at Ballaarat; I am a gold-digger, and I live there; I knew James Scobie; on Friday, October 6th, I had been with him at a tent towards the Black Hill, Ballaarat; we left there about mid- night, after having had something to drink; we knew very well what we were about; but we had enough; we went homewards towards Scobie's tent, which lay not far from Bentley's Hotel; as we got near Scobie's tent we observed lights in the hotel, and we went up to it get something to drink; we found the house was shut up; Scobie went up to one of the front windows; I stood a little distance off; after he had been there for three or four minutes I saw a hand strike out at him from inside the window, and I heard a glass fall; I was standing from ten to twenty yards from the window, it was a moonlight night; I
could see distinctly at times; Scobie went from the window to the door to try to open it; I then went up to him, and I was struck at from the window as I passed ; I got Scobie to come away with me towards his tent; after we had gone about 100 or 150 yards in that direction we heard someone following behind us; Scobie said, " What is this? Let us see?" We turned back about twenty yards, and met four or five men and one woman; the woman said, " This is the man who broke the window;" she was standing more opposite to Scobie than to me
when she said this; about that time I got knock- ed down; I observed that one of the men held up a weapon; I cannot say what weapon it was, but it struck me at the moment, it resembled a battle-axe; we were both standing still when the woman spoke about breaking the window, and when I was knocked down; I think I received only one blow; I then ran away; I cannot say what I was struck with; the woman was the nearest to Scobie when I last saw him standing near me; I think the man who had a weapon was about eight or ten feet from him. I did not see Scobie struck. I ran away 30 or 40 yards; I then turned back, walking slowly, and saw Sco- bie lying on the ground; I saw no one else but him until I got up to tho body, and I then saw two persons going towards the hotel; I think the body was about one hundred or one hundred and twenty yards from the hotel; I found Scobie lying, on the ground on his right side, his face towards his tent; I tried to raise
him; he appeared helpless, and breathed as if asleep; I then went to Archy Carmichael's tent, about 80 or 100 yards off, and roused him up, telling him what had happened; he returned with me to the body, and I remained there while he went for a doctor; Scobie was dead; Carmichael asked me to tell, Scobie's brother about the acci- dent, and I did so; I was absent from five to ten minutes; the body was just as I left it; I saw nobody go to the body until the doctor came; I know the prisoner Bentley, and it was he that, had the weapon in his hand, to the best of my belief; I do not know Farrell, nor can I identify him or any of the other prisoners, as those who were present; I cannot swear it was Mrs Bent- ley's voice I heard; I had seen Bentley occasion- ally before; I lived near; I cannot positively say whether Scobie was struck from the window.
Cross-examined by Mr Michie - The tent where we had been that afternoon belonged to Mr Brown; we had been there from five o'clock until twelve; we had tea there, and we had some- thing to drink afterwards; brandy I believe; I do not know how much brandy we drank; we were not drinking throughout all the evening; we were amusing ourselves with singing as well
as drinking; we left Brown's tent about a quarter past twelve o'clock; we had had enough to drink, but not so much but what we knew what we were about; we could walk very well, and had all our faculties about us; I think it was the deceased who proposed to go up to Bent- ley's; we went there for more liquor, although we had previously had enough; we found the
door shut; I did not hear deceased say anything good, bad, or indifferent, though I had all my faculties about me; I heard nothing said at that time; I will not swear that the window was not broken from the outside; I cannot say how it was broken; we were not there more than about five minutes; he said something about their opening the door; I believe when we went away we could not walk straight, but I cannot say whether we did so; the moon was sometimes clouded that night; I recollect being struck my- self; I did not see Scobie struck; that is all I
saw of the scuffle.
By Mr Ireland—On my oath I was not drunk, I think; I am not aware what state a man must be in before you pronounce him drunk; I was the worse for drink, but I was not very drunk; I think I had the possession of all my faculties; I knew all that was going on; I remember seeing Dr Carr when he came to the body; I do not remember telling Dr Carr that I was myself struck down by a battle-axe; I cannot repeat what I said to Dr Carr, I was so excited; I don't think I ever said so to Dr Carr; I believe I was sober at the Coroner's Inquest the next day, but I was greatly excited; that is my signature. (Deposition here shown to witness). No, I said nothing about a battle-axe then; I was much excited; the Coroner said something about my being drunk at the Inquest, but I do not think I was; I believe the Coroner said I was very drunk the evening before; I drank nothing but a glass of ale at Bentley's from the time of the deceased meeting his death until the Inquest; I swear, to the best of my belief, that Bentley was present when Scobie was killed, I cannot say whether I told Dr Carr or sub-inspector Taylor that I could not identify anybody who was there; I will not swear whether deceased broke in the window; I will swear he did not break the framework of the window. (The witness here explained the attitude in which deceased stood at the window, looking in at one pane and his hand resting against another.) I cannot say that I saw his head and part of his shoulder inside the window; he went to only one window and one door; I cannot say whether he smashed in a panel of a door; I heard him give the door a kick, but I cannot whether he kicked it in or not; I did not hear him say " You w----" to any female in the hotel; I will not swear he did
Re-examined--Bentley was sworn as a witness at the Inquest; he came forward himself of his own accord; I saw him sworn; I do not remem- ber seeing him sign his deposition.
By Mr Michie--I do not remember the Coro- ner saying I was not sober enough to give evi- dence; I will not swear he did not say so.
Barnard Welsh, a very intelligent boy of ten years of age, having given very satisfactory answers to his Honor's questions about the obli- gations of an oath, was then sworn, and deposed as follows:— My father's name is Benjamin Welsh, my mother's name is Mary Ann Harriet Welsh; last month I was living at Ballaarat in a tent, about fifteen yards from the Eureka Hotel; I believe Mr Bentley was the landlord; I remem- ber hearing a noise on the night of October 6, the night when Mr Scobie was murdered; I had been asleep; I was awoke by a noise as if there was fighting; It was moonlight; I looked out
through the tent, which is made of very thin calico; I could see very well; I saw Mr Bentley and Mr Mooney. the watchman, standing at the corner; I saw one of them, I believe Mr Bentley pick up a spade which I had put at the corner of the tent; they stood still about three minutes and then they went on; just after the person picked up the spade I heard one of the two per- sons say " Don't throw anything at him"; the night before the murder three men broke into our tent and broke into the door; I looked through the broken door-way and I saw much better; they went on a little further when I could not see them on the other side of the tent then I heard a scuffle, and a violent blow; they returned again and threw down the spade at the opposite side of the tent; they then went to the hotel, and all was quiet; I could not see the hotel door, but I could see part of the hotel; saw Mr and Mrs Bentley standing at the corner of the tent; they went on with the two men; I did not see them return to the hotel; I saw their shadows pass the tent as if returning; I did not see them through the door; I saw them go in the direction of the hotel, but I did not see them go into the hotel; the spade was thrown down about five minutes after they had stood at the corner of the tent; I did not hear Mrs Bentley say anything; everything remained quiet for about a quarter of an hour afterwards, and then I heard a horseman coming away from the hotel at a good pace; the next morning I found the spade lying on a log of wood on the other side of the tent to where I had placed it the night be fore; as they threw the spade down, a man's voice, I believe, said, " That's the way to treat them sweeps "
Cross-examined by Mr Ireland—I am not sure that it was a man's voice that said this; I saw
through the calico very well (The child here explained the relative positions of his own bed and the corners of the tent.) I believe Mr Bent- ley was one of the men I saw; there was great confusion amongst the neighbours about this; I have heard it talked about a good deal; almost everybody was talking about it; I did not hear a scuffle immediately they went away ; they went about twenty or twenty-five yards off, and then I heard a scuffle."
Re-examined by the Attorney- General —"What I am telling is from what I saw and what I heard; I have heard several people say Bentley was there; I saw Bentley there as soon as I looked through the calico; I did not see them afterwards, only their shadows as they came back towards the hotel; I am now speaking of what I saw myself; I say it was Mr Bentley from
what I saw myself.
By his Honor —I heard Bentley, or one of the two persons I first saw, say, " Don't throw any- thing at them," and afterwards, "That's the way to treat them sweeps."
By the Attorney-General; I heard the words said myself. I heard nothing about breaking
The Attorney-General here, after laying the foundation for such a course, proposed to place
in the witness's hand his deposition taken down
before the coroner.
Mr Ireland opposed, but the Court permitted it after hearing argument.
The boys's memory, however, was not assisted by the reference to his deposition, and the exa- mination arising out of this carried the case no further than before.
Mary Ann Harriett Welsh sworn--I am the mother of the last witness ; I was living at Bal- laarat on the 7th of October last; I remember hearing a disturbance between one and two o'clock in the morning of Saturday, October 7 : I was in the same tent as my son; I was awak- ened by hearing a disturbance at Bentley's hotel; I then heard, two persons who I judge were men by the tread, pass on the left side of my tent; I did not them ; they went a few yards from it ; I then heard three or four other persons come from
the back part of the Hotel, and then passed on the right hand side of my tent ; I heard a female voice say, "How dare you break my windows?". to the best of my belief that was Mrs Bentley's voice ; I was familiar with the sound of her voice; a few seconds previously to that, I heard a voice which I think was a man's, saying, " don't throw any thing ;" I think the two men had got about twenty yards on ; after that I heard the tools rattle which, were lying by the side of my tent ; they went on a few yards, when I heard blows with fists ; I then heard a tre- mendously, heavy blow given by an instrument, not by a fist ; everything was then quiet, and they went back to the hotel ; some man's voice said "that's the way to treat them sweeps ;" the
footsteps returned by the same direction they came, and towards the back part of the hotel; my tent is 15 yards or less from the hotel ; the night was very still and very moonlight ; I be- lieve it was Mr Bentley who uttered; the last words I have stated : I know his voice ; after everything had been quiet for five minutes, I heard a cry of "help ;" I got up and, looking
through a hole in my tent, I saw a body lying on the flat of his back ; a man was standing over it, who presently threw himself on the body and burst into tears ; I heard some footsteps go to the hotel, and about ten minutes after I heard a horseman leaving the hotel. I do not know the man who threw himself on the body ; it was lying about 25 yards from my tent. Not more than five minutes elapsed between the rattling of the tools and the saying," that's the way to serve those sweeps ;" my tent, is sufficiently near the
hotel to enable me to hear some sounds made in the hotel ; I heard no voice when the horseman came out of the stable yard ; I judge it was ten minutes or a quarter of an hour after the body was carried into the hotel that I heard the horse- man leaving the yard.
Cross-examined by Mr Ireland—I speak only to the best of my opinion as to Mr and Mrs Bent- ley's voices.
Re-examined by the "Attorney-General--I have no doubt as to the voices of Mr and Mrs Bentley.
Mr Ireland upon this renewed his cross-ex- amination, and the witness was closely and severely questioned as to an apparent discrepancy between her belief expressed in her deposition before the coroner and this positive expression of unhesitating belief that the voices she heard were those of Bentley and his wife. But the witness gave her explanations fairly, and without any appearance of prevarication. At the close of a most severe cross-examination, all directed to this point, his Honor said that he thought that the apparent discrepancy was quite consistent with the most perfect veracity.
Arthur Carmichael sworn—I remember being called by the witness Martin between one and two o'clock in the morning of Saturday, October 7th, on account of James Scobie being murdered. I found the latter stretched on the ground ; I considered he was dead then ; I went for a doc- tor, leaving Martin with the dead body ; I was asleep when Martin called me ; it was a mid- dling clear morning ; Martin was able to come for me, and to call me out.
Cross-examined by Mr Michie—I judged from Martin's state that he had been drinking.
Edward John Davy sworn —In October last I was in the employ of Mr O'Connor, whose tent was within twenty-five or thirty yards of where the Eureka Hotel stood. I remember the night when Scobie was murdered ; I was in bed and had been asleep in O'Connor's tent ; I heard a scuffling noise outside the hotel and close to it, between twelve and one o'clock ; I heard a man say, " You did break the window ;" I had not
noticed anything before during that evening but the report of a pistol a few minutes before ; when one man's voice said, " you did break the win- dow," another man denied it ; then the first voice said, "it's a b----y lie, you did ;" the other man said, "I did not ;" I do not know either of the voices; with that I heard a blow; it ap- peared to me as if it was a blow with the fist ; I heard footsteps come from the hotel, and passed very close to Mrs Welsh's tent, as if running from the hotel ; I then heard another blow given, and a man fell as if knocked down ; it appeared to be one man running first and the other running after him ; I heard a sound as if one man fell, and I then heard a noise like a kick with a boot after that ; I distinctly heard teeth grate ; then I heard footsteps returning to the hotel, and I heard a female voice say "that serves him right." I could not distinguish whose voice it was ; the kicking sound I spoke of was as if made by the
sole of a boot or some such hard substance strik-
ing a man's head or face.
Cross-examined by Mr Ireland—I believe I have heard Mr Bentley's voice ; I heard both a
man's and a woman's voice ; it was a woman's voice that said " that serves him right."
Michael Welsh (no relation to the other wit- nesses of this name) sworn—I knew the Eureka Hotel, kept by Mr Bentley ; I was employed by him there for a week as a waiter ; the prisoner Farrell appeared to be a lodger there ; I remem- ber the night of the 6th October and the morn- ing of the 7th; between one and half-past one, a man came to the door and demanded liquor. He commenced kicking at the door ; a pane of glass in the door had been broken the day before. The man and the prisoner Hance, who was clerk at the hotel, had some words ; Hance said " go away, it is too late to serve grog ;" the man then began to make more noise ; Mrs Bentley came into the place and said to him "go away, it is a shame to be making a noise here at this time of night ;" Hance again told him it was better for him to go about his business ; the man said if he got Hance out he would give him a hiding; I was in bed in the bar at the time ; when Mrs Bentley spoke to the man about going away, he called her a w----, on which Hance said it was a shame to speak to a married woman in that way, or to call a married woman out of her name. Just then Bentley came into the bar in his trou- sers and shirt ; there were then in the bar Bent- ley, Farrell, Duncan the barman, myself, Hance, and Mrs Bentley. About this time I heard a man outside, whom I believe to be the witness Martin, call the deceased away, and I think he went away shortly after ; after the men had gone away Bentley, Mrs Bentley, Farrell, Hance, and Duncan went into the dining-room, inside the bar ; I cannot say whether they went out, or where they went to. I heard them a few minutes afterwards ; I do not know whether the outer door of the house was open ; the door where the disturbance was made was at the back of the house ; when I again heard these voices. Mrs Bentley was laughing, at least Duncan told me it was her ; he said, "that fellow's got a clip." I do not know what has become of Duncan ; about a quarter of an hour after this was said, I heard Scobie's body being brought into the bar ; Dr Carr was there, but the man was dead ; Mooney was the night watchman then ; I saw him about 11 o'clock that night, not after that hour.
Cross-examined by Mr Michie—I say that Bentley had only his trousers and shirt on ; I do not know whether he had slippers on his feet ; Farrell had only slippers on ; he was dressed that night the same as usual. He had his coat on.
Cross-examined by Mr Ireland—I believe Bentley had slipper's on. The Eureka Hotel was burnt down by the mob since that affair occur- red. I was not at the coroner's inquest, nor be- fore the magistrates until I went to Geelong; I knew of my own knowledge that Bentley was
twice discharged by the magistrates.
By Mr Whipham—Hance was the clerk. It was not his place to shut the door.
Edward Alexander West—I remember the night when James Scobie was killed. I was then living at Bentley's, the Eureka Hotel. I was engaged by him to perform at his concerts, I slept up stairs in a room party over the dining-
room. I went to bed that night about twelve o'clock, my usual time. About half an hour afterwards I heard a noise down stairs, as if some one was hammering at the door. I got out of bed and went to the stairs and asked what was the matter ? Hance's voice replied its a drunken man, but he was gone away. I thought the noise was at the front door ; I went back to bed and heard nothing more, as I went to sleep almost immediately; I am a digger as well as a musi- cian, and I had worked very hard all day, and was very tired ; I was not aware that Scobie's body had been brought into the hotel until I was informed of it the next morning. The hotel was a wooden house. I heard nothing more that night.
Mr Ireland—If there is nothing said even in
a wooden house, I suppose no one can hear it, eh?
Witness—No, I think not.
Agnes Sinclair was called, but the learned counsel on either side asked her nothing.
Thomas Mooney sworn—I was acting as night watchman at Bentley's hotel on the night of 6th October. About one o'clock I heard a distur- bance outside the door. Duncan, the barman, came out and told me to go round after two men who were making a noise. So I went, and saw two men, one of them was the witness Martin, and the other was the man deceased. They were standing outside the front of the house ; they looked drink-takers. I told them to go away :
they went away and faced down the house, be- tween the doctor's and a little tent, where Mrs Welsh lives ; when I turned hack to Duncan. I told him they had gone ; Duncan was turning in at the time. Afterwards they came out ; there was Mr Bentley, Mrs Bentley, and Farrell, and
William Duncan, and the other man that is here; they came out in the yard. (The witness, who appeared to be a man whose intellect was from some cause or defect in a very confused state,
and who said his reason was very imperfect, was asked to identify the prisoners as the persons who came out. He walked down to the dock, and after a long and close stare at Bentley and Far- rell, said he did not know them ; he recognised
His Honor—Who is that man with mousta- chios (Bentley) ?
The witness—He's not Mr Bentley.
Examination by the Attorney-General con- tinued— I know the witness Martin. That is him (Martin had been called forward). I was seven weeks in the employ of the prisoner Bentley. Farrell was then three or four weeks up in the hotel. I do not recognise them now. I know that Bentley and those I said came through the back gate. They went towards the men by Mrs Welsh's tent. Mr Bentley first told me that I was not doing my duty in not sending the men away before I went along with the rest, and we came up with the men. Mr Bentley took a spade that was near the tent, but did not strike a blow with it. Farrell struck the deceased once with his fist and knocked him down. I saw Farrell and Hance kick him when on the ground. Bentley was standing near him, and William Duncan knows it too, he was near him as well. Farrell struck him one blow, knocked him down and kicked him down. Hance also kicked him. Bentley was within four feet of deceased, close enough. Bentley held the spade down in his hand, not as if he was going to hit out with it. (The witness here described how he held the spade, which certainly was not in a threatening attitude.) Mrs Bentley was also very near the deceased. They left him there on the ground. Mr and Mrs Bentley said, " Those are the lads that were breaking in the window, and that's the way to serve them.." Both of them said exactly the same words. I was just standing up to them. I took hold of Martin and threw him down myself. All then returned to the hotel, and I went down to my watch between the stable and the bowling alley. I saw Bentley and Farrell come into the stable to get a horse ready to go off to the camp after the body was brought into the hotel. Bentley said to me, " Don't you say anything about this. Say there were two men came to the front of the house, and that they went away. Say that I was in bed and didn't go out of the house at all; and that there was no
light to be seen '' He said nothing more until
he returned from the camp. Duncan and I got the horse ready. I know a man named Samuel Henry, a painter. When Duncan first came out to send me round to the men, three horses were tied up, one of which had got loose, and Henry came up to help me to fasten him up again. While I went round, Duncan stopped with the horses. At the first going off I saw Henry in the yard, if he likes to own it. When Bentley returned from the camp, he came out and said to me, " Stand to the story I told you before." I was examined at the inquest held about one o'clock on the Saturday. Neither I nor any of them told what they knew at the inquest. I did not tell because Bentley told me it would go by like a bottle of smoke, and so I said nothing at the inquest. I denied what I knew because I was told by Duncan to do so. Bentley was at the inquest, and I believe was called on for evidence there.
Cross-examined by Mr Michie—I heard no foul language. I was one of those that went out; I struck nobody; I took Martin by the collar, and threw him down; there was no diffi- culty in throwing down a very tipsy man; I swung him down; I was sober; I saw no fight- ing, except the blow struck by Farrell, It was as soon as l got back from sending the two men away that they all come out from the back of the hotel. Duncan followed the rest, but he did not do anything. Bentley said "Here's
the lads that broke the windows at this time of night." As soon as he said that Farrell struck the deceased with his fist, and the man fell. Martin then came up to me. I caught him by the collar, gave him a pull, and he fell down. I saw nobody strike Farrell. I will not swear that no one struck him. Scobie only said that he did not break the window before Farrell struck him down. I will not undertake to swear that Farrell struck the first blow. That was before I threw Martin down; he came up close to me, like Scobie came up to Farrell and Bentley. They met together; I will not swear that this is Bentley; he looks different; I have been working about the diggings for a year, ever since I came to the colony ; I came here straight from Ireland ; I was kept in a hospital, I think they call it, at Geelong, since this affair, until I was brought here. It is my own hair on my head, sure; I will not swear to the two men above (meaning Bentley and Farrell. After the coroner's inquest Bentley told me not to say anything about the affair except what I said before; 'We were all taken to Ballaarat and admitted to bail in £100 each. (The witness meant his being bound over in his own recognizance of £100 to appear as a witness). I am not sure whether Farrell had on slippers or shoes.
By Mr Ireland—I swore that which was not true when I said that Bentley did not go on that night; they had me in charge for this affair; I told the wrong story three times before ; I was afterwards examined at the police-office; I have been in charge of the police ever since; they treated me very well ; I have heard there was £500 reward offered ;
but if there was £5000 it would not induce me to say other than the truth. " I am sure, that Scobie fell on his face. Bentley held the spade, that was all he did with it. By the jury—Bentley wore a moustache while he was on the diggings.
Samuel Henry—I am a painter. On Friday night, October 7, I was stopping at Bentley's hotel; I slept in a tent outside the house, I got up when I heard the two men making a disturbance, between twelve and one o'clock. They were drunk. One of them was knock- ing at the door, and I thought the other was looking for a stone to break it in; I helped Mooney to secure a horse; Duncan came and told Mooney to go round and pacify the men at the door, or they would burst it in; Mooney went round, and I went to bed; I heard Mooney again five or seven minutes after, in the yard, securing some horses; I did not hear anybody leave the yard on horseback; I did not get up out of bed any more that night; I got up about the usual hour next morning, between six and seven; I did not hear Bentley's voice that night; I saw no lights in the building, nor did I see anybody go out of it.
Dr John Alfred Carr—I am a medical practitioner ; I was called by the witness
Carmichael, to attend upon James Scobie be- tween one and two o'clock on the morning of Saturday, 7th October; I found him about fifty or sixty yards from the hotel, lying on the ground perfectly insensible; I had him re- moved to Bentley's hotel. There I re-examined him; he was quite dead; I have no hesitation in saying he was quite dead when l first saw him;
I could detect no trace of life when I first saw him; but he was very warm, and I thought I would try what was to be done; I afterwards made a post mortem examination, by direction of the Coroner; I made these notes referring to a note-book in witness's hand) within half an hour of making the post mortem; I found bruises on the body; a bruise on the left collar bone; a severe bruise over the lips, especially the upper lip; another over the right cheek, and a graze therefrom on the right eyebrow; one on the lower part of the right upper eyelid ; and a slight bruise and graze on the right side of the nose near the junction with the cheek and close to the eye. There were two slight bruises, one on the head above the right temple, which I did not discover at the first observation, and the other at the back of the head; there was an unimportant external mark on the right shoulder; I had examined the body the night before; there was some blood, which had flown both from the wound on the nose and the graze on the cheek; the in- ternal examination of the body showed that the vessels on the brain were congested ; there
was a solid clot of arterial blood on the left side of the brain, extending into the ventricles and convolutions of the brain, and which appeared to be produced from the rupture of one or more branches of the internal carotid artery shortly after it enters tho brain ; that rup- ture was caused by a blow; the viscera were perfectly healthy, and the heart especially so; there was a very strong colour of spirits from the stomach, which was frightfully loaded with a mass of undigested and unmasticated food; the state of his stomach would account for the deceased having met his death from a blow, which, under ordinary circumstances, would have inflicted no serious injury upon him. Any of the blows which caused the bruises may have caused the rupture of the vessels, and so produced death from the shock thus given to the system; the bruise on the back of the head was probably from a fall; I think the man must have died as instantaneously as if he had been shot in the heart. If he had survived a few minutes, there would have been a stertorous breathing; it would appear that the deceased died of sanguineous apoplexy; he was lying within about forty or fifty yards of my dwelling; I had heard a disturb- ance at Bentley's hotel about three quarters of an hour previously; I had not unfrequently
heard similar noises at Bentley's; a spade was
shown to me at the inquest; it was a square spade with sharp edges; my opinion is that the spade could not have inflicted any of the wounds except the most trifling; it is extremely im- probable that any of the wounds could have been inflicted by that spade unless it were one at the side of the head, which was so slight that I only detected it on dissecting back the scalp; I examined the skull very carefully; there was no appearance of a fracture there; I remember seeing Martin the same night; he ap- peared very stupid and drunk; Martin had two bruises on him, one on the left temple and one on the forehead; it was a severe blow on the
temple; I was at the inquest, but did not hear all the evidence, as I was engaged during part of the time making the post mortem exami-
By the Judge—In point of fact, the man died of sanguineous apoplexy. Any one of the blows or a fall might have caused his death. In the then state of his stomach, a very trifling in- jury might have caused death.
Cross examined by Mr Michie—The outward appearance of the injuries did not denote any violence imminently likely to cause death. Certainly not. The appearances I saw might possibly have been produced by a heavy fall, but I think not very probably. A comparatively slight blow would have caused death in the
then state of his stomach and system. He was a firm muscular man of a light frame, from 28 to 30 years. of age, and in a state of perfect health. I had left the hotel about twelve o'clock the same night. As a matter of conjecture, I attribute death to a rupture of one or more branches of the carotid artery near the
base of the brain.
By Mr Ireland—I noticed some marks on the boots of Martin ; I examined them; I remember them ; there were marks as of teeth upon them; I remember a statement by Martin that he had been struck down by a battle-axe.
Mr James Stewart; the other medical gen- tleman engaged in the post mortem, was called by the Attorney-General, but neither party asked
him any questions.
This closed the case for the Crown.
The Court here adjourned for half an hour, in consequence of the female prisoner having been taken unwell. On the Court resum- ing--
Mr Michie addressed the jury in a powerful speech for the prisoner Farrell. The learned
counsel contended that the evidence was altogether insufficient to convict his client, even of an assault. It had not been proved that he was present. He condemned the evidence of Mooney as totally unworthy of credit; he had forsworn himself previously according to his own account; and stood there in the light of an accomplice whose testimony was uncorroborated. And even admitting for argument's sake, that Farrell was there at the time deceased met his death, the medical evidence placed it beyond doubt that that the charge of wilful murder was very far-fetched and preposterous. Had the un-
fortunate deceased not been in a most peculiar state of body at the time the alleged affray took place, the injuries he received would have been most trifling. However much it was to be la- mented that the deceased had met his death on that occasion, it would be a dreadful thing to deprive the accused either of life or liberty upon the supposition that he intended to do any grievous harm to the deceased. After comment- ing at great length upon the evidence as it bore against his client in the different aspects of mur- der and manslaughter, the learned counsel con-
cluded by adverting to the capital charge, which, however, he observed that he could not permit himself to believe they would for an instant en- tertain. Unfortunately scenes of blood had been too rife in this colony. Unfortunately the punishment of death was rife in this colony. But he implored the jury by the great oath they had taken, true deliverance to make between, the Crown and the prisoners at the bar, not to let
that dreadful word pass their lips which might for all they knew consign three men and one woman to that perdition from which no human power could recall them.
Mr Ireland, for the prisoners Bentley and his wife, then addressed the jury in a forcible speech.
Mr Whipham followed on behalf of the pri-
The Attorney-General replied in an argu-
mentative speech of some length.
His Honor summed up the evidence at great length, and demonstrated with his usual exceed- ing perspicuity, the legal distinctions between murder and manslaughter. (The learned Judge's charge to the jury, and which was listened to throughout with almost breathless at- tention, occupied rather more than one hour.)
The jury retired to consider their verdict; and after deliberating about forty minutes, returned into Court with a verdict of Not Guilty against Catherine Bentley. They found James Francis
Bentley, John Farrell, and William Henry Hance, Guilty of manslaughter.
The Attorney-General then prayed the judge- ment of the Court against the prisoners who had
Mr Michie proposed to call witnesses to cha- racter in mitigation of sentence. This was ac- ceded to, and the learned counsel for the pri- soners called the following-
Mr Daniel M'lntosh-Had known Farrell 4 or 5 years. He was always a very kind and quiet man. He had been acting as chief con- stable. He was the officer that lent the witness so much aid when the prisoners attempted to break out of Castlemaine. Had it not been for Farrell witness would not have been able to secure a single prisoner. Witness knew Farrell had also rendered the Government great assist- ance at the time when the diggings broke out, in securing witnesses and others bound by recogni- zances to attend the Court. He had known him to get the Government £500 at one time.
Dr Carr had known Bentley for a short time; had known him particularly kind to his servants, one of whom the witness had attended at Bent- ley's charge; thought Bentley rather too quiet in managing his hotel, where there were disturb- ances not unfrequently.
Mr W. J. Disher had known Bentley ten or twelve years. Always knew him conduct him- self as a respectable man. Knew him here now for three years. Knew him formerly in Van Diemen's Land, where he was a butcher, and supplied witness's family with meat.
Mr Charles Dyte had known Bentley for twelve months; Always knew him to be kind, humane
Mr Isaac Hind had known Bentley for three or four years; had had frequent and constant intercourse with him; thought him an honorable, quiet, and industrious, man; had had dealings both in buying of him and selling to him.
Mr Whipham, on behalf of the prisoner Hance, said he was instructed that that prisoner's family was very respectable, and that this was the first offence over charged against him; he was unprepared with any witnesses.
The prisoners were asked if they wished to say anything?
Farrell said that he had been found guilty on the unsupported evidence of Mooney, with re- gard to the kicking. The witness Welsh had stated that he (Farrell) had only his slippers on; and it was plain, that if he had kicked the man's head with his feet in slippers, it must have hurt himself most. He denied that he ever kicked a man in his whole existence. His disposition would not have allowed him to kick a man. He had been many years in the colony, and had never had a word against him before.
Bentley said that he regretted that the truth had not come out; if it had, the verdict would have been different. They, the prisoners, were
not in a position to prove the truth; conse- quently the offence was painted much blacker
than it need to be. As regarded his intention of doing any injury to the man, it never was his intention to do him any harm ; and he very much regretted that the melancholy result had
Hance said he merely spoke to disabuse the public mind of any impression that the man had been kicked. One man in slippers could not kick another inhumanly.
His Honor remarked that he trusted he was not deceived in the belief that he entertained, that the remarks, which he had heard from the prisoners showed some intention to endeavour, to atone for the grievous crime of which they had, been found guilty. He would disabuse their minds of the idea that the law recognised any distinctions in the fact that the death of this un- fortunate man was caused by kicks or by a blow or a fall. The death of that man was brought about by the act of one of the prisoners, and the law knew no difference between them; they were all equally guilty in the eye of the law. It cer- tainly was to be taken into consideration that they had not used any other weapon than that with which nature had furnished them. The
facts were now so conclusive that nothing re- mained for him but to, pass sentence. Many cases of manslaughter had come before him in the course of his experience. The punishment of manslaughter was as various in degree as that or larceny. It was sometimes punished by hours of imprisonment, sometimes by years, sometimes by many years of painful labour. All depended upon the circumstances of aggravation attendant upon the commission of the crime, and there was no inflexible rule. He should look, upon this case as if the offence had been committed in the heart of the town - as if it had taken place on the other side of this street. He could not but view the prisoners' act as one of great severity and as showing a great want of humanity. The provocation was slight to an extraordinary de- gree. Bentley was keeping a public-house and ought especially to have been forbearing and prudent, as persons keeping a house for public accommodation always ought to be. And yet he was found to be so little forbearing as to visit
with fatal injury a man who had merely broken a pane of glass and knocked violently at a door. These should be no causes for inducing any per- son to risk the perpetration of a great crime. It was said that an epithet had been used which was insulting in the last degree t0 a virtuous wife, and which he would not repeat, but which he regretted to believe; with other similar lan- guage, was only, too often heard within the walls of the public house. But though nothing could be said in palliation of this impeachment of a man's wife, yet there was a proper way to resent such an imputation. A man in the position of Bentley should have a proper control over his temper, and a greater measure of forbearance was to be expected from a person so placed. The character the prisoners had received weighed very materially- with him in forming a favorable opinion of their future conduct, and he hoped that favorable opinion was well founded. He had this belief in his mind, that they were not conscious of the extent of the injury they had inflicted on the unfortunate man. But he must observe a reckless and wanton excess of any sort of authority to punish an affront in their pro- ceeding to extremity at once. He did not recog- nise any mitigation for this unfortunate crime in the medical opinions given, nor in the fact that repletion or exhaustion may make human life more susceptible of destruction. His Honor further observed that while upon a review of the whole case, it did not to his mind present
such features of enormity as it had been his painful office to punish, and while therefore he did not feel obliged to deal out such a heavy punishmentas it had been his duty to wward to some other case, he was bound to pass a sen- tence which would mark the sense, of the Court
upon the fearful act of violence by which they had outraged the law. He saw no material distinc- tion between the cases of any of the three pri- soners. The sentence of the Court was, that they James Francis Bentley, John Farrell, and Henry Hance, be kept to hard labor on the roads of the Colony, or such other place as His Excellency may appoint, for the period of three years.
The trial had lasted from about half-past ten at night. We much regret that the very great length to which the evidence extended, and which we have thought it necessary, for the satis-
faction of the public mind, to present verbatim, has precluded our devoting any space either to the able addresses delivered on the behalf of the prisoners, the energetic opening and reply of the learned Attorney-General, or the summing up of the learned judge; each was admirable in its place.
The Court was much crowded throughout the day, and until the close of the proceedings. The trial of these prisoners will for a long day find a place among the causes célèbres of Australia.