TRIAL OF EDWARD KELLY. CONVICTION AND SENTENCE OF THE PRISONER. At a special sitting of the Central Criminal Court on October 28, before his Honour Mr. Justice Barry, Edward Kelly was brought up for trial on a charge of having, at Stringy Bark Creek, in the Wombat Ranges, on the 28th October, 1878, wilfully and maliciously murdered Thomas Lonigan, a police constable. Mr. C. A. Smyth and Mr. Chomley appeared for the prosecution, and Mr. Bindon for the prisoner. Mr. Bindon applied for a further postponement of the trial until next sessions, on the ground that the defence of the prisoner had only been placed in his hands on Monday night, and that he had consequently been unable to make himself thoroughly acquainted with the voluminous depositions taken in the case. His Honour said he would not be justified in postponing the case any further. The prisoner received notice of his trial two months ago, and how the procrastination had occurred he (his Honour) could not tell. The case would now proceed. A jury having been sworn in, Mr. C. A. Smyth opened the case by narrating the circumstances of the police murders and explaining the nature of the evidence he would submit. He called the following witnesses:— Michael Edward Ward said he was a detective stationed in Melbourne. A document produced with a warrant for the appre- hension of Edward Kelly, of Beechworth, for horse stealing. It was dated 15th March, 1878. The person accused therein was the prisoner in the dock. He also proved the warrant which was issued for the arrest of Daniel Kelly on a similar charge. He had been in pursuit of the Kelly gang since the 9th September, 1878, until they were captured on the 29th of June. Patrick Day, police constable, stationed at Benalla, proved the issue of warrants for the arrest of the prisoner and his brother Daniel Kelly for attempting to murder Constable Fitzpatrick, Thomas M'Intyre deposed,—I am a police constable, at present stationed in Melbourne. In October, 1878, I was stationed at Mansfield, and on Friday, the 25th of the month, left with Sergeant Kennedy and Constables Lonigan and Scanlan to search for the prisoner and his brother Dan, on a charge of attempting to murder Constable Fitzpatrick. Knew that there were warrants issued. They were notified in the Police Gazette. The party were in plain clothes, and Sergeant Kennedy was in charge. We started at about 5 o'clock in the morning, and camped in the Wombat Ranges, 20 miles from Mansfield, pitching our camp in a small cleared space. There were the remains of a hut there, and some dead logs lying on the ground. On the following morning, the 26th, Sergeant Kennedy and Scanlan left the camp to patrol on horseback, leaving me and Lonigan in charge of the camp. Sergeant Kennedy had a Spencer rifle and revolver, Scanlan a revolver. Lonigan had a revolver, and I a revolver and fowlingpiece. During the day, in consequence of a noise having been heard down the creek, I searched the place but found no one, and on returning to the camp fired two shots at parrots. I and Lonigan, at about 5 o'clock, lit a fire in the angle formed by two large logs which crossed each other, and proceeded to prepare our tea. We were standing at the fire wth one of the logs between us. Lonigan alone was armed, and he only had a revolver in his belt. My revolver and fowling piece were in the tent. There was a quantity of speargrass 5ft. high about 35 yards from the fire, and on the south side of the clearing. I was standing with my face to the fire and my back to the speargrass, when suddenly a number of voices from the spearprass sang out, "Bail up, hold up your hands." Turning quickly round, I saw four men, each armed with a gun, and pointing these weapons at Lonigan and me. The prisoner, who was one of the men, had the right-hand position, and he had his gun pointed at my chest. I, being unarmed, at once threw my arms out horizontally. Lonigan was in my rear and to my left. Saw the prisoner move his rifle, bringing it in a line with Lonigan, and fire. By glancing round I saw that the shot had taken effect on Lonigan, for he fell. A few seconds afterwards he exclaimed, "Oh, Christ, I'm shot." The four men then advanced on me, running, three of them with their guns lowered, the prisoner drawing a revolver, and all calling out, "Keep up your hands." At a distance of three yards they all covered me with their weapons. On ascertaining that his firearms were at the tent, the prisoner took the revolver from Lonigan, who had in the meantime expired, and also secured the firearms in the tent. The four men then went into the tent, leaving me outside. Dan Kelly returned to me with a pair of handcuffs found in the tent, and said he was going to handcuff me. Prisoner, who followed him, said that was unnecessary, as his rifle was better than handcuffs, threatening at the same time to track me, even to the police station, if I tried to escape. In the conversations that followed prisoner called my attention to the gun with which he had shot Lonigan. He said, "That's a curious old gun to carry about the country." It was an old weapon with stock and barrel tied or spliced together with a waxed string. The prisoner then took up my fowlingpiece, drew the charges, abstracted the shot and substituted them with bullets, reloading the gun with the same. He gave the fowlingpiece to Byrne, whose body I identified at Glenrowan. I recognised prisoner and his brother from their
likeness to their mother and sisters. Did not know Hart, the other member of the gang. Prisoner, jerking his head towards Lonigan's body, asked, "Who is that?" Witness replied, "Lonigan." Prisoner at first said, "No; I know Lonigan well;" but afterwards, "Oh yes, it is. I am glad of that, for the — once gave me a hiding at Benalla." Prisoner had now two guns, the one he received from Byrne in exchange for the fowling-piece and his own weapon. He remarked that one was for me if I attempted to escape. The prisoner then arranged his men, placing two in the spear grass (Dan and Byrne), and one (Hart) in the tent. The prisoner himself lay down behind a log at the fire, and called me to the log. We had some conversation, in which the prisoner expressed a belief that the police had come out to shoot him. The prisoner and his mates were now waiting for the return of Kennedy and Scanlan, and with regard to their absence and probable time of return he closely questioned me. He asked me to request them to surrender, and promised not to shoot them if they did. He stated, however, that there were four men in the police force he intended to roast, viz. Flood, Fitzpatrick, Steel, and Strong. He said, "What gun is it? Is it a breech loader?" I said, "Yes it is." He said, "That looks very like as it you came out to shoot me." I said, "You can't blame the men, they have got their duty to do, and they must come out as they are ordered." He said, "They are not ordered to go about the country shooting people." He then said. "What became of the Sydney man?"—he referred to a man who murdered Sergeant Wallins in New South Wales. I said, "He was shot by the police." He said, "If the police shot him they shot the wrong man. I suppose if you could you would shoot me some day, but before you do it I will make some of you suffer for it. That fellow Fitzpatrick is the cause of all this. Those people lagged at Beechworth the other day no more had revolvers than you have at present—in fact, it was not them who were there at all." I said "You can't blame us for what Fitzpatrick did to you." He said, "I have almost sworn to do for Fitzpatrick, and if I let you go now you will have to leave the police force." I said, "I would, that my health was rather bad, and I intended to go home." I asked him what he would do to the men if I got them to surrender. He said, "You had better get them to surrender, because if they get away we will shoot them, and if they don't surrender we will shoot you. We don't want their lives, only their firearms. We will handcuff them all night, and let them go in the morning." I thought I could possibly get a gun by a sudden spring, and I made a short step towards them. Hart cried out from the tent, "Ned, look out, or that fellow will be on the top of you." Prisoner said, "Don't do that, mate; if you do you will soon find your match, for you know there are not three men in the police force who are a match for me." About this time (half-past 5 or 6 o'clock) Kennedy and Scanlan came up. Prisoner cried out, "Listen, lads, here they come." (This evidence was objected to as relating to another offence, but the objection was overruled on the ground that the evidence was admissible to show the intent with which the first shot was fired.) Kennedy and Scanlan came up on horseback. They were 150 yards from us. The prisoner was still kneeling behind the log. He stooped to pick up a gun. Kennedy was on horseback. Prisoner said, "You go and sit down on that log" (pointing to one), and added, "Mind you don't give any alarm, or I'll put a hole through you." The log was about 10 yards distant from the prisoner, in the direction of Kennedy. When they were 40 yards from the camp I went to them, and said, "Sergeant, we are surrounded; I think you had better surrender." Prisoner at the same time rose, and said, "Bail up." Kennedy smiled, and apparently thought it was a joke. He put his hand on his revolver. As he did so prisoner fired at him. The shot did not take effect. The three others came from their hiding place with their guns, and cried out, "Bail up." Prisoner picked up the other gun. Scanlan, when Kennedy was fired at, was in the act of dis- mounting. He became somewhat flurried, and fell on his knees. The whole party fired at him. Scanlan received a shot under the right arm. He fell on his side. Kennedy threw himself on the horse's neck, and rolled off on the off side, putting the horse between him and the prisoner. I caught Kennedy's horse, and I looked round and saw the others running past. I attempted to mount the horse to get away. The last I saw was Kennedy and Scanlan on the ground. I got away. I heard shots fired. I can't say if they were fired at me. I got thrown off the horse in the timber when I had ridden two miles. I remained in the bush all night, and got to Mansfield next afternoon (Sunday) about 3 p.m. I reported the matter to Inspector Pewtress, and a search party was organised. We started from Mansfield about 6 o'clock. Never saw the prisoner again till after his arrest at Glenrowan. I arrived at Glenrowan on the Monday afternoon. Saw prisoner at the railway station, and recognised him. Cross-examined by Mr. Bindon.—We went out with Kennedy to arrest the prisoner and his brother. I did not see the warrants for their apprehension. I can't swear that any of our party had a warrant. I knew of the warrants by the Police Gazette. Kennedy did not roll off his horse through being wounded by the prisoner. From the time the sergeant came in sight till Scanlan was shot was about a minute. Kennedy's horse was restive after I caught him. I thought nothing of the horse till I saw Scanlan was shot, and then I did not think I could get away. Scanlan was shot immediately after Kennedy was fired at. When they were firing all round I thought no mercy would be shown to any of us. If I had known Kennedy would have fought I would not have left. I did not consider there was any opportunity for a fight. George Stephens, groom, said he was at Faithfull's Creek Station when it was stuck up by the prisoner, and Hurt, Byrne, and Dan Kelly. He said prisoner gave him the following account in answer to a question about shooting the police. Prisoner said:—"We were behind a log. I told Dan to cover Lonigan, and I would cover M'Intyre. I then called on them to throw up their hands, and M'Intyre immediately did so. Lonigan made for the log, and tried to draw the revolver as he went along. He laid down behind the log, and rested his revolver on the top of the log and covered Dan. I then took my rifle off M'Intyre and fired at Lonigan, grazing his temple. Lonigan then disappeared below the log, but gradually rose again, and as he did so I fired again, and shot him through the head. I then sent two men back to our own hut, fearing a surprise there. I sent Dan over to the rise to watch for the police coming. While I was talking to M'Intyre the men appeared in the open, and I had just time to fall down by the fire. The fire was very nigh scorching my knees. M'Intyre went over and spoke to Kennedy, and Kennedy smiled. I immediately sang out for them to throw up their hands. Scanlan swung his rifle round and fired at me. I then fired, and Scanlan fell forward on the horse's neck. I still kept him covered, thinking he was shamming. When the horse moved he rolled off. Cross examined.—I have been in the police. I left in 1868. I was discharged for being absent for two or three days without leave. I am going to try to get employed by the police. Re-examined.—I repeated my evidence to Detective Ward shortly after the prisoner went away. William Fitzgerald, labourer at Mologolong, who was present at the conversation between Stephens and prisoner, gave evidence similar to that of the last witness. Henry Dudley, employed in the Government Printing-office, gave evidence as to having been stuck up by the prisoner at the Faithfull's Creek Station, in December 1878. Referring to a con- versation he had with the prisoner, he said that the prisoner pulled out a gold watch in a double case. He said, "That's a good watch, is it not? It belonged to poor Kennedy. What would be best for me—to shoot the police, or for the police to shoot me and carry my mangled body into Mansfield?" Robert M'Dougall, bookbinder at the Government Printing office who was with Dudley, gave similar evidence. James Gloucester, draper at Seymour.—I was hawking goods in December last in the neighbourhood of Mr. Younghusband's station when I was locked up by the prisoner at the station with 14 other persons. The prisoner in one conversation described the shooting of the police at the Wombat. One of the prisoners, out of curiosity, asked him about it. Prisoner said
that he had shot Lonigan, and had also shot Sergeant Kennedy. He said, "Lonigan ran to the log, and was trying to screen himself behind it when I fired at him. He fell. I was sorry afterwards that he didn't surrender." He said that Lonigan was struck in the head, and killed. He said, people called it murder, but he had never murdered anyone in his life. I said,"How about Sergeant Kennedy?" He said, "I killed him in fair fight; as Kennedy came up I told him to throw up his arms, but instead of surrending he showed fight, and during the fight he retreated from tree to tree. Kennedy must have been a good shot as well as a brave man, for one of the shots went through my whiskers." He added that Kennedy turned round, and he (Kelly) thought he was going to shoot him He was sorry he had fired that last shot, as he had though since that Kennedy was going to surrender, and not fire. He said that he had afterwards had a long conver- sation with Kennedy, and seeing from his wounds that he could not live, he shot him. He said that the party were going to leave the ground, and as he did not wish Kennedy to be torn by wild beasts while he was dying, he shot him. He added that it was no murder to shoot one's enemies, and the police were his natural enemies. He said he had stolen about 280 horses, and that if the police had taken him for any of these cases he would not object, but that the police had persecuted him. Cross-examined by Mr. Bindon.—Prisoner said he was 200 miles away at the time of the alleged shooting at Greta; that his mother had struggled up with a large family, that he was very much incensed at the police, that his mother had been unjustly imprisoned, and that Fitzpatrick's testimony was prejudiced. He referred to his mother having an infant at the breast when she was taken to gaol. Prisoner said he was sorry Lonigan had not surrendered. I said at the police court that my impression was that he took the whole of the shooting on himself to screen the others. At this stage the further hearing of the trial was adjourned till next day at 9 o'clock. The jury were taken to the Supreme Court Hotel, where quarters for the night were prepared for them. The trial of Edward Kelly was resumed on October 29 before his Honour Mr. Justice Barry. Frank Beacroft, draper's assistant living at Longwood, said that he was with Mr. Gloucester at the time the Faithfull's Creek station was stuck up. He gave evidence similar to that of Gloucester in reference to the statements made by the prisoner as to the manner in which Lonigan had been shot. Robert Scott, manager of the National Bank at Euroa, gave evidence as to the prisoner sticking up the bank on the 10th December, 1878. He asked Kelly who shot Lonigan. Kelly said, "Oh, I shot Lonigan." Cross-examined by Mr. Bindon.—The prisoner treated me and Mrs. Scott well. Henry Richards, police constable stationed at Jerilderie, New South Wales, said that in February, 1879, the police station there was stuck up by the prisoner and three other men. Prisoner said he had come to shoot him because he had tried to shoot him (Kelly) on the punt at Tocumwal two months before. He said he also intended to shoot Constable Devine, as he was worse than a black tracker, and was always following him about. Constable Devine asked the prisoner about the shooting of the police in Victoria. The prisoner said that a reward of £100 had been offered for him for shooting Constable Fitzpatrick. He was not guilty of that, as he was 200 miles away at the time that Fitzpatrick was shot in this way. He had gone to arrest Dan Kelly; that his mother asked him if he had a warrant, and he said he had not, and his mother then said that Fitzpatrick could not arrest Dan if Ned was there; that Dan tried to take the pistol from Fitzpatrick, and in the scufile the pistol went off. Prisoner also said that he had not gone out to shoot Kennedy, Scanlan, and Lonigan, but was determined to get their arms. The reason he shot them was that they were persecuting him. He said he had Sergeant Kennedy's watch, and he intended to return it in course of time. Cross-examined.—Kelly told Mrs. Devine that he would not shoot her husband. The remark about the shooting at Tocumwal referred to this. About two months before, while he and another constable were on patrol duty on the New South Wales side of the Murray, they saw four men in a punt, and he called out that he would shoot them if they did not answer. The men proved to be Victorian police. Edward M. Living, clerk in the Bank of New South Wales, Jerilderie, said that after the bank was robbed, in the course of a conversation with him, prisoner said that he had shot the police with a gun he had. "It was an old one, but a good one, and would shoot round a corner." Prisoner went to the newspaper office to give a written statement for publication. The proprietor was not in, and his wife refused to take it. Prisoner gave him the statement, and he afterwards handed it to the police. The statement was tendered in evidence, but was not received. John Wm. Tarlton, clerk in New Zealand, was clerk at the Bank of New South Wales, Jerilderie, in February, 1879. Prisoner stated that people talked about their shooting the police, but they had done it in self-defence. The police had been persecuting him ever since he was 14, and he had been driven to become an outlaw. He had a revolver which he said was taken from Lonigan after he was shot. He said he shot Kennedy and Lonigan, and that Hart and Byrne were miles away at the time. The prisoner left the impression that he had done all the shooting himself. John Kelly, senior constable of police, gave evidence as to the Glenrowan affair, and produced the armour the prisoner had on when he was wounded. Prisoner said to Constable Bracken, "Save me; I saved you." He (witness) replied, "You showed little mercy to Sergeant Kennedy and Scanlan." Prisoner said, "I had to shoot them or they would have shot me." Asked him where Kennedy's watch was, and he said he didn't care to tell. The witness corroborated Constable M'Intyre's version of the conversation between him and the prisoner at the lockup. Between 3 and 6 o'clock the same morning had another conver- sation with prisoner in the presence of Constable Ryan. Gave him some milk and water. Asked him if Fitzpatrick's statement was correct. Prisoner said, "Yes, I shot him." Arthur Steele, sergeant in charge of the Wangaratta police station, gave evidence as to the arrest of the prisoner at Glen- rowan. When he was captured he said, "Don't kill me; I never hurt any of you." Constable Kelly said, "You did not show Scanlan and Kennedy much mercy." Prisoner said, "If I had not shot them they would have shot me." In reply to other questions, the prisoner said he had intended to shoot every one that escaped from the wreck of the train. Prisoner was asked if it was true about his shooting Fitzpatrick. He said, "Yes, it is true; I shot him." Cross-examined by Mr. Bindon.—I arrived at Glenrowan about 5 o'clock in the morning. First saw the prisoner about a quarter-past 7 o'clock. There was some firing. There were about a dozen constables there in the morning, besides the black trackers. There were 53 in the evening. I fired at a young fellow named Reardon. I fired at him because I thought it was one of the outlaws. The police fired into the hotel. I believe there were a number of people in the hotel, but I did not know of it at the time. After the boy was shot, and I understood that there were people in the house, I called on them to come out. We fired in answer to firing from the house. Martin Cherry and the boy named Jones were shot. I was accused of shooting the boy. There was nothing but slugs in my gun. That boy was shot before I arrived. Never said to Mrs. Jones that if she would say Ned Kelly had shot her son I would forward her application for a portion of the reward to the Government. Never heard of such a thing before to-day. Re- examined. The boy Reardon recovered. Cannot say who shot Cherry. Samuel Reynolds, medical practitioner at Mansfield, made a post-mortem examination on the body of Thomas Lonigan. There were two wounds—the one in the eye, the other on the temple, which was merely a graze. He had also a wound on the left arm, and one on the left thigh. They were all gunshot wounds. The wound through the eye was the cause of death. Cross-examined by Mr. Bindon.—The ball that struck the eye must have come slightly slanting. Did not think the other wounds were inflicted after death. I should say that Kennedy was standing up when he was shot, as he had the wound right
in the centre of the chest. I did not make a regular post-mortem examination of Kennedy's body. I extracted a bullet from Lonigan's thigh. It was an ordinary revolver bullet. Re- examined.—If the wounds were inflicted before, the circulation had actually ceased, it would be impossible to state accurately whether they were before or after death. This closed the evidence for the prosecution, and the Court adjourned for an hour to allow Mr. Bindon an opportunity of considering whether he would call any witnesses. On the Court resuming, Mr. BINDON stated that in the course of the case he had objected to certain evidence that had been tendered, and he wished to know whether his Honour would reserve a special case on the points for the consideration of the full Court. He referred more particularly to the evidence given after Lonigan had been killed. He contended as the prisoner was not being tried for the murder of Kennedy or Scanlan, that therefore no evidence should have been given in regard to them. His HONOUR said that if an act were doubtful or ambiguous, or capable of two meanings, the conduct of the person before, at the time, or after the time of doing the act was admissible to show the motive and reason for his conduct. This evidence was admissible to show whether the shooting of Constable Lonigan were accidental or justifiable. Mr. SMYTH then addressed the jury, reviewing the evidence on behalf of the Crown. Mr. BINDON then addressed the jury on behalf of the prisoner. The evidence, he said, was in one sense most elaborate, but the great bulk of it was quite extraneous matter. It would be the duty of the jury to exclude everything from their minds but what related to the death of Constable Lonigan. What occurred at Euroa, Jerilderie, and Glenrowan was altogether irrrelevant, and with regard to what occurred at Stringybark Creek, they had only the evidence of one witness. That one witness (Constable M'Intyre), had given a very consecutive and well-prepared narrative after the event, but he was in such a state of trepidation at the time of the affray, that he could not have made the minute observations he professed to have done, and could not possibly have picked out the prisoner from amongst the gang as the particular person who shot Lonigan. His statement was therefore to be received with discredit. The prisoner and his three mates were following a lawful pursuit in the bush, when a party of men in disguise, fully armed—policemen in plain clothes, as they afterwards turned out to be—came upon them, and an unfortunate fracas occurred, in which Constable Lonigan lost his life. Who shot that man no one could tell. M'Intyre said that he saw the prisoner fire at him, but there were shots fired by others at the same time, and to tell which was the fatal bullet was a matter of impossibility. Only two men were alive who were in the fray, and it was simply a question of believing the statement of the one or that of the other. Unfortunately for the prisoner, his mouth was closed, and they had only the statement of M'Intyre before them. That statement, moreover, was not only that of a prejudiced witness, but the corroborative evidence given was of most peculiar and unreliable character, being simply a variety of remarks made by the prisoner himself— remarks made either ad captandum, for the purpose of screening others, or for keeping the persons he had in durance in subjection. Evidence of this character was of a most illusory nature, and ought to have no weight with the jury. The prisoner was not the bloodthirsty assassin the Crown prosecutor had endeavoured to make out. Both before and after the shooting of the police he showed that he had the greatest possible respect for human life, for he had many previous opportunities of assassinating policemen, if that was his desire, and at Euroa and Jerilderie he never harmed one of the persons who fell into his power. The jury had an important and serious duty to discharge, and he had to urge them not to take away the life of a man on the prejudiced evidence of a single man. His Honour, in summing up, said that the prisoner Edward Kelly was presented against for that he, on the 26th October, 1878, at Stringybark Creek, in the northern bailiwick, feloniously, wilfully, and with malice aforethought, did kill and murder Thomas Lonigan. Murder was the highest kind of homicide. It was the voluntary killing of any person in the Queen's peace by another person of sound mind, with malice prepense and afore- thought, either expressed or implied. Malice was twofold. It might be proved by expressions made use of by the prisoner, which showed a malevolent disposition, and that he had an intention to take away the life of another man without lawful cause. It might also be proved by the prisoner procuring materials to cause the death of another, such as purchasing a sword, or a knife, or poison, and if those weapons or the poison were used, it was evidence from which malice might be inferred, unless there was some justification for their use. As, for instance, if a man bought a pistol intending to shoot A, and went out intending to shoot him, and if on the way he was assailed and overpowered by another with whom he had no intention of quarrelling and should kill him, he would be justified in using the pistol in self-defence. If, however, having bought the pistol, he proceeded to carry out his original intention, and did so, it would be murder. And if two or three or more persons went out together with an intention of an unlawful character, they were all principals in the first degree, and each was liable to account for the acts of the others. So if four men went out armed intending to resist those in lawful pursuit of an object, and one of these four men interfered with those on their lawful business and killed them, the four would be equally guilty of murder, and might be executed. Here four constables went out to perform a duty. It was said they were in plain clothes. But with that they had nothing to do. Regard them as civilians—he used the term because it had been made use of in the course of the trial, although he thought it inappropriate—what right had four other men armed to stop them? They had the evidence of the surviving constable as to what had occurred—that two were left by their companions at the camp—what right had the prisoner and three other men to desire them to hold up their hands and surrender? But there was another state of things which was not to be disregarded. These men were persons charged with a responsible and, as it turned out, a dangerous duty, and they were aware of that before they started. They went in pursuit of two persons who had been gazetted as persons against whom warrants were issued, and they were in the lawful discharge of their duty when in pursuit of these two persons; therefore they had a double protection— that of the ordinary citizen, and that of being ministers of the law, executive officers of the administration of the peace of the country. Whether they were in uniform or not, there was no privilege on the part of any person to molest them, and still less was there power or authority to molest them as constables. The jury had been invited to be extremely careful before relying upon the evidence of Constable M'Intyre. He went further, and told them to be careful in considering the evidence of all the witnesses. According to the law of this country, the principles of evidence were the same on all sides of the Court—at the common law, at the equity, and at the criminal side, with some few exceptions. As, for instance, in treason there must be two witnesses, although not necessarily to the same overt act. In perjury there must be generally two witnesses, or one witness sworn and certain circumstances de- posed to on oath to corroborate him. There must be two witnesses to a will. Some documents must be signed by an attorney, some documents must be attested by a notary public; but with these and some other unimportant exceptions one witness was sufficient to prove a case on either side of the Supreme Court. M'Intyre was the only survivor of this lamentable catastrophe. The jury would have to consider the manner in which he had given his evidence, and say whether they thought from his demeanour or mode of giving his evidence that he was stating what was not true. It was not his province to laud or to censure him, but if he had not escaped there would have been no survivor to give evidence to-day. The jury were properly told that the prisoner was not on his trial for the murder of either Scanlan or Kennedy, but he had admitted the evidence of what had occurred prior to the shooting of Lonigan, because the
jury might infer from it what was the motive for shooting Lonigan, or whether the shooting was accidental or in self-defence. Besides the testimony of M'Intyre, there were also the admissions made by the prisoner himself at different times, and at different places, to different persons. Two classes of those admissions were made at Euroa and Jerilderie, and the other at the time of his capture. On the first two occasions, the prisoner was not under any duress, and it was for the jury to say what motive he had in making the admissions. There was no compulsion upon him; he answered questions which were put to him when he might have held his tongue. These admissions were spoken to by five different persons at one place, by three at the other, and by three at the third, and it was for the jury to say whether these witness had concocted the story or not. The jury then retired, and after deliberating about half-an-hour returned into Court with a verdict of guilty. The prisoner, having been asked in the usual way if he had any statement to make, said:—Well, it is rather too late for me to speak now. I thought of speaking this morning and all day, but there was little use, and there is little use blaming any one now. Nobody knew about my case except myself, and I wish I had insisted on being allowed to examine the witnesses myself. If I had examined them, I am confident I would have thrown a different light on the case. It is not that I fear death; I fear it as little as to drink a cup of tea. On the evidence that has been given, no juryman could have given any other verdict. That is my opinion. But as I say, if I had examined the witnesses I would have shown matters in a different light, because no man understands the case as I do myself. I do not blame anybody— neither Mr. Bindon nor Mr. Gaunson; but Mr. Bindon knew nothing about my case. I lay blame on myself that I did not get up yesterday and examine the witnesses, but I thought that if I did so it would look like bravado and flashness. The court crier having called upon all to observe a strict silence whilst the judge pronounced the awful sentence of death. His HONOUR said:—Edward Kelly, the verdict pronounced by the jury is one which you must have fully expected. The Prisoner.—Yes, under the circumstances. His HONOUR.—No circumstances that I can conceive could have altered the result of your trial. The Prisoner.—Perhaps not from what you can now conceive, but if you had heard me examine the witnesses it would have been different. His HONOUR.—I will give you credit for all the skill you appear to desire to assume. The Prisoner.—No, I don't wish to assume anything. There is no flashness or bravado about me. It is not that I want to save my life, because I know I would have been capable of clearing myself of the charge, and I could have saved my life in spite of all against me. His HONOUR.—The facts are so numerous, and so convincing, not only as regards the original offence with which you are charged, but with respect to a long series of transactions cover- ing a period of 18 months, that no rational person would hesitate to arrive at any other conclusion but that the verdict of the jury is irresistible, and that it is right. I have no desire whatever to inflict upon you any personal remarks. It is not becoming that I should endeavour to aggravate the sufferings with which your mind must be sincerely agitated. The Prisoner.—No, I don't think that. My mind is as easy as the mind of any man in this world, as I am prepared to show before God and man. His HONOUR.—It is blasphemous for you to say that. You appear to revel in the idea of having put men to death. The Prisoner.—More men than me have put men to death, but I am the last man in the world that would take a man's life. Two years ago, even if my own life was at stake, and I am confident if I thought a man would shoot me, I would give him a chance of keeping his life, and would part rather with my own. But if I knew that through him innocent persons' lives were at stake I certainly would have to shoot him if he forced me to do so, but I would want to know that he was really going to take innocent life. His HONOUR.—Your statement involves a cruelly wicked charge of perjury against a phalanx of witnesses. The Prisoner.—I daresay, but a day will come at a bigger court than this when we shall see which is right and which is wrong. No matter how long a man lives, he is bound to come to judgment somewhere, and as well here as anywhere. It will be different the next time they have a Kelly trial, for they are not all killed. It would have been for the good of the Crown had I examined the witnesses, and I would have stopped a lot of the reward, I can assure you; and I do not know but I will do it yet, if allowed. His HONOUR.—An offence of this kind is of no ordinary character. Murders had been discovered which had been committed under circumstances of great atrocity. They proceeded from motives other than that which actuated you. They have had their origin in many sources. Some have been committed from a sordid desire to take from others the property they had acquired, some from jealousy, some from a desire for revenge, but yours is a more aggravated crime, and one of larger proportions, for with a party of men you took up arms against society, organised as it is for mutual protection, and for respect of law. The Prisoner.—That is the way the evidence came out here. It appeared that I deliberately took up arms of my own accord, and induced the other three men to join me for the purpose of doing nothing but shooting down the police. His HONOUR.—In new communities, where the bonds of society are not so well linked together as in older countries, there is, unfortunately, a class which disregards the evil consequences of crime. Foolish, inconsiderate, ill-conducted, unprincipled youths unfortunately abound, and unless they are made to consider the consequences of crime they are led to imitate notorious felons, whom they reerard as self-made heroes. It is right, therefore, that they should be asked to consider and reflect upon what the life of a felon is. A felon who has cut himself off from all decencies, all the affections, charities, and all the obligations of society is as helpless and degraded as a wild beast of the field. He has nowhere to lay his head, he has no one to prepare for him the comforts of life, he suspects his friends, he dreads his enemies, he is in constant alarm lest his pursuers should reach him, and his only hope is that he might use his life in what he considers a glorious struggle for existence That is the life of the outlaw or felon, and it would be well for those young men who are so foolish as to consider that it is brave of a man to sacrifice the lives of his fellow-creatures in carrying out his own wild ideas, to see that it is a life to be avoided by every possible means, and to reflect that the unfortunate termi- nation of your life is a miserable death. New South Wales joined with Victoria in providing ample inducement to persons to assist in having you and your companions apprehended, but by some spell which I cannot understand—a spell which exists in all lawless communities more or less—which may be attributed either to a sympathy for the outlaws or a dread of the conse- quences which would result from the performance of their duty —no persons were found who would be tempted by the reward. The love of country, the love of order, the love of obedience to law, have been set aside for reasons difficult to explain, and there is something extremely wrong in a country where a lawless band of men are able to live for 18 months disturbing society. During your short life you have stolen, according to your own statements, over 200 horses. The Prisoner.—Who proves that? His HONOUR.—More than one witness has testified that you made the statement on several occasions. The Prisoner.—That charge has never been proved against me, and it is held in English law that a man is innocent until he is found guilty. His HONOUR.—You are self-accused. The statement was made voluntarily by yourself. Then you and your companions com- mitted attacks on two banks, and appropriated therefrom large
sums of money, amounting to several thousands of pounds. Further, I cannot conceal from myself the fact that an expenditure of £50,000 has been rendered necessary in consequence of the acts with which you and your party have been connected. We have had samples of felons and their careers such as those of Bradly and O'Connor, Clark, Gardiner, Melville, Morgan Scott, and Smith, all of whom have come to ignominious deaths; still the effect expected from their punishment has not been produced. This is much to be deplored. When such examples as these are so often repeated society must be reorganised, or it must soon be seriously affected. Your unfortunate and miserable companions have died a death which probably you might rather envy but you are not afforded the opportunity— The Prisoner.—I don't think there is much proof that they did die that death. His HONOUR.—In your case the law will be carried out by its officers. The gentlemen of the jury have done their duty. My duty will be to forward to the proper quarter the notes of your trial, and to lay, as I am required to do, before the Executive any circumstances connected with your trial that may be required. I can hold out to you no hope. I do not see that I can entertain the slightest reason for saying you can expect anything. I desire to spare you any more pain, and I absolve myself from anything said willingly in any of my utterances that may have unnecessarily increased the agitation of your mind. I have now to pronounce your sentence. His HONOUR then sentenced the prisoner to death in the usual form, ending with the usual words, "May the Lord have mercy on your soul." The Prisoner.—I will go a little further than that, and say I will see you there where I go. The court was cleared, and the prisoner was removed to the Melbourne gaol.