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  • kay.sturgeon 25 Jul 2010 at 17:41
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On Monday morning, between 9 and 10 o'clock, the Court of Criminal Jurisdiction re-assembled, and proceeded to the trial of Thomas Mahony, and Pearce Conden for the wilful murder of Joseph Sutton, on   the night of the 5th of March instant; and Matthew   Kearns, John Kearns the elder, and John Kearns   the younger, for inciting, moving, aiding, abetting, counselling, hiring, and commanding the said Tho- mas Mahony and Pearce Condon to commit the said


The first witness called was John Hodges, an inhabitant of Parramatta whose residence is nearly opposite to that of Edmund

Wright, at the corner of whose paling the deceased was killed. This witness deposed to being in Wright's house on

the 5th of March, and shortly after 8 at night heard the report of a gun or pistol, which seemed to be near at hand. Mrs. Wright, who was present, exclaimed  

"bless me! where can that come from (meaning the flash), it was in my face?'' The witness, and several

others, who were in the room, immediately ran out at the front door into the street: he went out at a side gate fronting Mr. Larra's: he crossed towards his own house, and discovering the body, cried aloud for lights, as a man had shot himself, for such was his first conjecture. Mr. Wright's servant man bought a light out, and Mr. and Mrs. Wright, with

several others assembled about the deceased, who was laying prostrate on his right side, his feet nearly touching the paling, and his head towards the road; he had part of a brick in his left pocket, but, his person was for some time unknown. The prisoner

Conden was at Wright's that night, as was also one Eliza Plumb (an admitted evidence on this trial), but he did not perceive either of them among the persons that first collected about the body; though

he afterwards saw the latter at the corner of the fence. He knew the prisoner Conden, and under-  

stood that he was a servant to the prisoner Matthew  


Martha Wright, wife of Edmund Wright, deposed   that Conden for the latter three months had put up at her house twice or thrice a week. He was Mat-   thew Kearns's servant, she also knew Eliza Plumb,   from her also coming frequently to her house within the last month or two: Conden and Eliza Plumb   appeared very intimate. On the Friday of the murder

Conden came to her house between 5 and 6 in the   evening with the horse and cart he usually drove; he unloaded the cart, and deposited some tea and sugar in a small skilling behind the house, in which he slept whenever he stopped at night, and to which there was a small window that opened to the avenue that separates the house from Mr. Larra's: he soon afterwards got tea, at which herself and husband,   and Eliza Plumb were present. Conden went into the skilling after tea, and remained there till between 7 and 8 o'clock. At 8 the witness saw him in the back yard, but did not see him afterwards until the fatal act had been perpetrated. A short time after 8 o'clook, the witness accompanied Mrs. Plumb over

to the house of Hodges, who, as well as herself,   perceived a man standing at the corner of Wright's paling, and whom Hodges said he believed to be the prisoner Conden. The witness returned home, and Eliza Plumb was in her house before her. Witness prepared to iron some linen, and when about to be- gin her work, heard the report, and saw the flash of of the pistol, which was very loud. She thought the explosion had taken place in Back-row, but on Hodges, herself, and husband going out, it appeared to have been close to her own front garden fence, and Hodges exclaimed that some man had shot himself. On her return from where the deceased lay, she met Eliza Plumb going towards the place, and   advised her not to go, as she was in a state of preg- nancy. She did not know whether Pearce Conden was in the house at the time of the explosion or not; but she afterwards went into his skilling, and

finding him in bed, desired him to get up, as a man   had been murdered on her premises. Pearce Conden   was always in the habit of having fire-arms with him, such as a gun or huge pistol; she had seen none with him this time, but he had never before come to her house without such, and might have had them now without her knowledge. Here a long pistol, which after the murder had been found in Wright's privy, was shewn to the witness; who declared it to be like the one she had before seen with Conden; and when she told him a man had been murdered on her premises he did not appear to evince any marks of surprise, nor did she recollect his making any re- ply. Pearce Conden and Eliza Plumb had been in the same room in her house for a whole night to- gether, but witness could not say they slept together.

The Rev. Mr. MARSDEN, resident Clergyman and Magistrate of Parramatta, deposed, that on Friday night the 5th instant, he went to visit a sick man whose habitation was about 50 yards distant from Wright's house, and after being there a few seconds heard the report of a pistol. He dispatched a servant to enquire the cause, and on hearing what had hap- pened hastened to the fatal spot, where he found a man in dying agonies; he did not at the moment       discover who it was, but afterwards perceived it to

be Joseph Sutton. The deceased lived about ten   minutes after the Rev. Gentleman went up to him, but never opened his eyes. Mr. Luttrell, Assistant Surgeon, attended and examined the wound in his presence. The deceased was a material evidence for the Crown in the prosecution of several delinquents then confined on various charges of stealing and re- ceiving cattle, and as a Crown approver had been di-

rected to live in the house of one Grimshaw, a con- stable of Parramatta.      

Questions from the Court. —Was Matthew Kearns one of the prisoners committed to take his trial before

this Court on charges of cattle-stealing? Ans. He was.    

Q. Was the deceased to have been an evidence to support those charges? A. He was.

The witness understood that Pearce Conden was a servant to Matthew Kearns, and supposed the de-

ceased must have been assassinated by some person

or persons at Wright's house. Finding therefore, upon enquiry, that the prisoner Conden and Eliza Plumb, whose husband was also in prison on a charge of cattle-stealing, were both there at the time, and all who were in the house except themselves volun- tarily going forward to render such information as     they were able on the subject, he was induced to have them apprehended, previously taking the pre- caution to place guards upon the various avenues of the town, to prevent if possible the egress of any person unperceived. In the pocket of the deceased the Rev. Gentleman also stated that a part of a brick was found. He directed the body to be re- moved to the General Hospital about 25 minutes after the deceased had expired.

The declaration of the prisoner Conden, taken in writing before the Rev. Gentleman, the present wit- ness, when under examination at Parramatta, was here produced and declared to have been free, voluntary,

and unsolicited.

Question from the prisoners. —Were there not many persons at large who were equally criminated by the   testimony of the deceased with Matthew Kearns? A. There were others implicated by his testimony; but not equally with Kearns, as more cattle had been found in his possession than in the proportion of three to one in any other accused person's.

John Hodges, by whom a long brass-mounted pistol had been found in Wright's privy on Wednesday the 10th instant, was again called, and the pistol

shewn to him he believed to be the same. He had suspected its being thrown into that place, and when he found it, William Brazil, a lad who lived with Wright, was present. When taken out the cock was down and the pan open. By Mr. Luttrill's direction   he went with a constable to clean it, and afterwards take it to the Commandant, but was met on the road by John Russell, a constable of Sydney, who de- manded and received the pistol from him.

John Russell sworn. —Witness met the last evidence going owards the house of the Commandant at Par- ramatta, and received from him the pistol now pro- duced. Deponent took it to the Commandant him- self and was by that Officer commanded to take it down to Sydney.

William Brazil sworn —Was present when Hodges found the pistol; which he thinks he had before seen   in the possession of the prisoner Conden. He never saw any other pistol like it; it was very long, brass

mounted, and had a clasp or brace to fasten in a belt, which he had never seen on any other.

Mr. Luttrill, Assistant Surgon resident at Par- ramatta, deposed, that he attended the deceased a few minutes before he expired. He was lying on his back, but rather inclining to the right side, his feet close to Wright's paling, his body in an oblique direction across the foot-path, and his head towards

the road. On examination he found two external wounds in the head, and several internal ones, from which the brain issued, and which bled profusely. These wounds had been inflicted by a ball or balls fired from a gun or pistol, which entered on the one side of the head and passed through the other, and occasioned death. Mr. Luttrill stated also, that upon examining the hat of the deceased he found it scorched and several grains of powder unexploded adhering to it, from which it was manifest the assassin must have approached very near to him.

Mary Grimshaw, wife of Richard Grimshaw, a constable of Parramatta, deposed, that the deceased Joseph Sutton had lived in her house for about six weeks previous to his death ; and was several times visited by Eliza Plumb, who was with him about dinner time on the day he was murdered. At about half past eight at night deponent saw him for the last time alive: He went out, and returned shortly   after; made his bed, and said he would go to bed;     but that Eliza (meaning Eliza Plumb) promised to be with him between 8 and 9. Deponent went to bed; she heard Sutton go out, and about 20 minutes   afterwards heard the report of a pistol. A constable of the name of Beaumont shortly after came to her   house and informed her of the horrible catastrophe.

Question from the prisoners at the bar.—Is it not

within your knowledge that Eliza Plumb slept with the deceased in your house? A. Eliza Plumb slept   in my kitchen one night, and Sutton lay there also;     but I do not know whether they slept together

or not.          

Richard Grimshaw, constable, deposed in corro- boration of his wife's testimony: in addition to which he stated, that when Eliza Plumb was with Sutton on the day of his death, they were engaged in an earnest private conversation.        

On the Wednesday prior to the murder he observed Pearce Conden in close conversation with the deceased

for a few minutes on a piece of waste ground near the bottom of his (deponent's) garden. An old blue coat that had been found in Conden's cart, he believed to be that in which he, Conden, used to wrap his fire-arms; and the hat of the deceased, which had been much

scorched by the explosion of the pistol, was also pro-

duced and recognised by the witness.           Eliza Plumb was now called upon to give testimony anterior to her entering upon which, the JUDGE ADVOCATE exhorted her to be strictly candid and in- genuous in her declarations, upon the truth of which her own future happiness as well as the lives of several of her fellow creatures was depending.  

The oath being administered the deponent stated herself to be the wife of Thomas Plumb; she knew Pearce Conden very well by his going backwards and forwards where she usually resided, and was also   acquainted with Matthew Kearns; his son, and brother.

The deceased Joseph Sutton she likewise knew for the space of four years. Early in February her hus-

band was apprehended on suspicion of cattle-stealing,   and taken to Sydney gaol, whither she attended him with provisions. On the first time of her car-     rying in his breakfast, the prisoner Matthew Kearns,   who was at the same time in the prison, came into the lodge, where she sat, and sitting beside, her

said, "I understand you have great influence over     Joseph Sutton: --there are a great many lives depend- ing; and it would be a great pity but he could be put

out of the way." He also said, that if the witness   would be the means of getting him out into the bush he would be a sincere friend to her; for that he had   a man, one Pearce Conden, to whom he could trust his life. The deponent in reply promised to do her endeavours; whereupon Kearns remarked that his cart was going up to his farm from Sydney the next Sunday; it was drove by Conden, and he would give

her every necessary direction on the road. She ac-   cordingly went in the cart on Sunday, and got to   Parramatta the same evening, without any conversa- tion on the subject having passed between herself and


On the following morning (Monday) Conden told

her that Sutton lived at Grimshaw's, but that he   had heard he had gone with one Parker, who was   also an evidence for the Crown, up to Hawkesbury. About 11 in the forenoon the deponent accompanied Conden out to Kearn's farm at the Race Ground, which   is within three miles of Windsor. Here they remained

all night. Next morning (Tuesday) John Kearns jun. desired Conden to go into Windsor concerning some horses impounded ther ; he went, and on his return told the deponent he had heard that Parker and Sutton were

there, but he could have no chance to kill them, as they had three constables with them: next morning; (Wednesday) before day-light, deponent and Conden set out again for Sydney, and got in between 9 and 10 at night. On Thursday morning she carried her husband's breakfast to the gaol, and remained nearly all day, but had no conversation with Kearns. She met Conden   that evening, and he asked her to accompany him up the country, but she declined going till the next day, she

went up on Saturday in another person's cart, and stopped     at Edmund Wright's that night. Early on Sunday she went out to Prospect, and staid at the house of one Stan-

bury till the Friday following, which was three weeks pre- vious to the murder being committed. She that day left   Prospect, and came to Sydney by the passage boat. She

landed about 5 in the evening, and went straight to the   gaol, and saw her husband after which she went to her usual lodgings when at Sydney. She saw Conden several times that and the day following; who advised her to   go up the country with him, as she would have a good chance to see Sutton. She did not go, however, till Monday, and then went in another person's cart, Conden having gone before. She staid at Wright's that night, and on Tuesday morning went to see Sutton, whom she informed that she was going to Prospect. He requested her to stay with him that night, and he would accom-   pany her thither in the morning. She complied, and about 4 on Wednesday morning they went accordingly, but Sutton only went within sight of the place, and there left her. Deponent remained at Stanbury's till the Sun-   day following; on the Friday previous Conden called upon her, saying he had a message from her husband. They walked out together, and Conden requested her to go with him then into Parramatta. He assured her he had two men in waiting for him at the gate of the Lumber- yard, who were to assist him in killing Sutton; the name of one was Lewis. Deponent declined going before Sunday, and Pearce Conden left her. She left Prospect about 5 on Sunday evening, and met Conden on the way. They went to Edmund Wright's together ; where he told deponent he was sorry she did not go in on the previous Friday, as Sutton had been in a state of intoxication   in the Back Row, she would have had a favourable op- portunity to inveigle him out of the town, and having him killed that night: it was a thing he did not like to do himself, as there were many people about. He said he had a case of pistols for the purpose, and that a man had accompanied him as far as the town gate, whom the deponent did not see. They went to Wright's   and there remained that night, and on the following morning (Monday) Conden went to Kearns's Race-ground farm. About 8 at night she went to Grimshaw's, and saw Sutton, but did not go into the house. She set out for

Sydney on Tuesday morning, and got in about noon. She went into the gaol to her husband; and staid most of the day. In the evening Kearns spoke to her: he asked if there was any chance yet; and whether she had seen Pearce Conden. She replied that she had seen him on the Monday before. The next morning (Wednesday)     she went again to the gaol with her husband's break- fast. When she was alone in the lodge Kearns went towards her and said "you are very long about this     business!" he said also, that he understood Sutton was fond of rum, and desired her to tell Pearce Conden to get a bottle of rum, and the deponent then to entice him into some private place favorable for the purpose.   He further desired her to tell Conden to dig a hole for the purpose of burying the body of' Sutton, as soon as he should be killed, or to appoint a place near some pond of water into which the dead body might be thrown with stones fastened to it to prevent discovery. On the following morning (Thursday) she again saw Kearns in gaol: He said he was uneasy on account of Conden's not coming down, he supposed he was walking about doing nothing; and again, that he was fearful he had made the attempt but failed, and had been discovered; if he did not come down soon, his son, meaning the prisoner

John Kearns jun. should go and learn what had become   of him. His son went up accordingly, and very soon  

returned: it was on a Thursday evening (Feb.20th) it     was very rainy, Deponent was in the gaol, and saw Kearns who informed her of his son's return, said every thing was right, and told her that Pearce Conden had waited two days for her at Parramatta turnpike. He also assured her that his son had given to Conden two bottles   of Jamaica rum and one pound in money. The son was   not present when he told her this; but came in as the father went out. He likewise informed her that Pearce     Conden had been two days waiting for her at Parramatta turnpike, and had received from him one pound in money and two bottles of Jamaica rum. He then left her, and   his father returning, asked if she intended to go off that   night? She answered that the weather was too bad, and   as she had no conveniency to take her up she would be obliged to travel on foot. Kearns said in answer he sup- posed she had no money to pay her expences, to relieve which obstacle he gave her bills amounting to two shil- lings and nine-pence, and advised her to make the best of her way up to Parramatta that night: She left the gaol at 5 o'clock, ,but was prevented by the rain from proceeding beyond the Sydney turnpike. The next day (Friday) she went up in a cart, and in going through   the Parramatta turnpike the gate keeper informed her that a man had been waiting there two days for her; that his name was Peery (a name by which Pearce Conden was frequently called), and was a servant to Matthew Kearns: Deponent went on to Wright's, and there found him. She went into the kitchen to dry her clothes, and Conden brought her a glass of spirits. He afterwards asked if she had any message from his, master? to which she answered no; but that he (Kearns), was very de- sirous of his putting Sutton out of the way, as the Court

was fast approaching. She asked if he had received two, bottles of spirits and he denied having had more than one, and five shillings in money. On Saturday morning she went to Toongabbee, and on her return called at Grimshaw's, and saw Sutton: She staid with him about half an hour, and then went back to Wright's. Conden there advised her to return to Sutton, which she did, and staid till evening. Conden that day told her they were determined to have his life, and that if it could be done no other way, they would break into Grimshaw's house, and kill all that should oppose their purpose; to which     declaration deponent replied that if they did so she would discover it. On Sunday morning Conden went to Kearns's farm; and about two hours after his departure young Kearns called for deponent at Wright's back gate: he brought her a letter from her husband, and said "I sup-   pose you did not do that thing yet?" to which deponent answered no; for there had been no opportunity. Young Kearns as he was going away called out to her to "tell   Pearce Conden not to come to Sydney till he has done it;   —till he had got the money from that man. This expres-   sion deponent understood to be an indirect manner of communicating his anxiety for the death of Sutton. De- ponent took a letter for her husband some hours after to the place where young Kearns put up at; but he was gone two hours before; and one Jones informed deponent   that he had a letter from Matthew Kearns to Pearce

Conden, who was then at the Race-ground farm, to hurry him down immediately. On her return to Wright's she was called into Grimshaw's by Sutton, whom she informed   that she intended going to Prospect that evening. She however remained, with him that night, and at about 4 on Monday morning he accompanied her thither. She   returned to Edmund Wright's about two o'clock the same day, and at nine at night Conden came in, and en- quired whether she had seen Sutton? She told him she   had; and nothing else material passed. Conden went to Sydney on Friday,and returned to Wright's on Wednesday morning, and remained all the day and night. He declared that his master and his son were very angry at his de-   lay, and he had promised not to see his master's face again till he had done it. Deponent went to Grimshaw's   that evening, but Sutton was not at home. Next morn- ing (Thursday) Pearce Conden went to the farm. [Here Thomas Mahoney, one of the prisoners at the bar, fainted away, but reviving in a few minutes the witness pro-   ceeded in her testimony]. On Thursday evening she called again at Grimshaw's to see Sutton, whose brother was with him but she did find him at home. On FRIDAY

MORNING (the 5th of March) she called at Grimshaw's and found Sutton asleep: She awoke him; and he told her he had seen his brother, whose conversation had   operated strongly on his mind; he was low spirited, and   had a great mind to go into the bush, and not come to Sydney at all. He had seen Pearce Conden, he said, on Wednesday afternoon. Deponent staid with him some time, then left him, and saw him alive no more! About

?? in the evening Conden arrived at Wright's with his

cart, which he unloaded in presence of deponent. He drank tea there, and had with him the old blue coat, which being produced the witness swore to be the same, and in which he used to wrap his fire-arms: She never saw him without arms, going or coming. After tea he asked deponent for a light; which she got for him: he then went into the skilling appropriated for his use. This was about 7 o'clock. He produced a bottle with some spirits in it, a glass of which he gave to the deponent,

and drank some himself. He their unwrapt the identical pistol now produced to her, from the old coat, (which was also exhibited to her view), and asked her to hold the light, which she did. He then took from his pocket a small bag containing gun-powder, and balls and slugs. He charged the pistol; she saw two small balls in his hand,   and saw him prime it. He left the charged pistol in the skilling and went into the kitchen, where he remained a few minutes, when deponent called him into the yard and endeavoured to dissuade him from his purpose. He   said he would take her advice and proceed no further in the design, but observed at the same time, that he had promised to meet two men that night at 8 o'clock. The eight o'clock bell that instant rung, and he requested the deponent to go into the skilling, and hand him the old coat and pistol out of the window. She did so: he took them from her hands, and saying that he might miss a chance on the road, went away for about three quarters of an hour, when he returned, and calling the deponent out the back way, asked if she had seen Sutton since he was out? she told him she had not; and he returned for answer that he believed he had seen and was close to him, but did not know him. A stone came

that instant against the weatherboarding of the house; on hearing which he pushed her into the passage, and desired her not to stir out. He then ran off, and shortly after she heard the report of a pistol. A few minutes after he re-entered the back way, much confused, saying he had done his job, and requesting her to go out and se- cure the pistol, which was in the cart, but she refused,   He then hastily ran out again at the back door, and deponent ran out at the front with Mrs. Wright and others. After the alarm she saw Pearce Conden come   out of the skilling, where he had gone to bed unper- ceived, by going in the back way while every one else was out at the front of the house. When he came out he asked deponent who was shot? she answered she did not know. He then asked, is he dead ? and she again replied she did not know. Next morning she was taken into custody, and the testimony she gave she solemnly declared to be circumstantially correct.

William Lewis, an admitted Crown approver, being now called to give his evidence, was seriously admonished by the Court on the solemn and important nature of the oath that was about to be administered to him; which being   done, he proceeded, by stating that he lived on Matthew Kearns's farm on the Nepean, and remembered well a num- ber of cattle being claimed by Government out of his herds at his Race-ground farm about two months ago. That up on that occasion Pearce Conden called upon and told him

the old and the young John Kearns both wanted to see him at the Race-ground immediately, he went, and was by both informed that a letter had come from M. Kearns, then in Sydney gaol, requiring that he, the deponent, should forswear himself on his expected trial, which he refused to   do: the promises they held out to him were very flattering,     but this, and subsequent applications from the same parties to the same effect, he answered by a positive denial. Upon his refusal they both shed tears, and were very much affected, declaring that all their dependance was in him for saving the life of a father and a brother. Some   days after, John the elder and John the younger both came to him, and shedding tears, desired him to go to the Race-ground; then the younger declared that Joseph   Sutton would hang his father, and he knew not what to do. He next remarked, however, that he had a letter of advice from his father, and if he, the deponent Lewis, would help Pearce Conden and Mahoney to kill Sutton, he should have the Mountain farm, and money should not part them. The witness refused, under pretext of requiring some time to consider of it. He went into the labourers' hut to get rid of them, but was followed     in by Conden and the two John Kearns's. He stopped to light his pipe, and in rising was prevented by Conden, who collared him; presented a pistol, and said if he did not consent to assist himself and Mahoney, and two Kearns's in killing Sutton he should be that instant a dead man. The witness promised compliance, Conden then asked the younger Kearns for a book, which he brought, and by which he, deponent, was sworn to keep the whole affair secret, and to aid and assist in killing Joseph Sut- ton, whenever called upon. They then went to get horses ready for their journey; and Conden said that Thomas   Mahoney, John Kearns the elder, John Kearns the younger, and himself were to be the party; and that the elder Kearns was appointed to hold the horses to Levingston's   hill, while the others went in to Parramatta to accom-   plish the murder of Sutton, the constable in whose house be lived, and all others that offered resistance. Kearns the younger, disguised in a soldier's jacket, was to enter this house with Conden, and the deponent was to be posted at the back door and window. Mahoney could not be found, and was not present at the conversation. As they were getting ready, one of the Kearns's reported that a letter of advice had been received from M. Kearns, de- ploring a discovery of the plot having taken place. Kearns the younger read the letter, but deponent did not see who brought it:—This was three or four days before   the fact was perpetrated. It was therefore agreed that no further steps should he taken that night, and the two Kearns's, weeping, declined that he (meaning Matthew Kearns) must inevitably be hanged. After this, however, one of them exclaimed "Is every thing ready!" to which     Conden made an answer, "Yes, as soon as my shoes are     mended; are my pistols dry? Kearns the younger answered     " Yes" Pistols were produced and Conden examining   them by the light, decided he would trust his life to them. Kearns the younger then brought out a pair of

brass pocket pistols, one of which, by repeated snapping

had its flint impaired. He took it out, and breaking a piece of flint on the ground, repaired the injury and on trial it burnt priming. All was now in readiness to depart — the Kearns's gave two bottles of rum to Conden, and the younger Kearns gave him some bills, which he   took from his pocket. Conden asked for more money. The younger Kearns said he had no more; but next day was to receive 50£ of a person whom he named, and would then give more. Conden was directed to give them to Mrs. Plumb, who was to draw Sutton into the Prospect road, for the purpose of giving Conden the op-  

portunity of shooting him. Conden then set out on foot for Parramatta, and deponent went into the house to light a pipe, and saw a girl melting lead for casting bul- lets. The younger Kearns afterwards gave him a glass of rum, and he went home.; but previous to his going,deponent saw Kearns the younger cut a ball into quar- ters, saying "these will make a hole in them." He returned

to Kearns's Farm at the Race-ground next day for a bull they were to lend him but which he did not get. Conden was there, and told him that Mrs Plumb had got Sutton on the Prospect-road, where he should have shot him had he not been prevented by two stockmen coming up;   and the deponent then returned home. On the FRIDAY

the Murder was perpetrated John Kearns the elder met

him on the farm deponent lived at, and reported the re-   ceipt of a letter from Matthew Kearns, which stated that he should be hanged if Sutton was not immediately killed, as he, Sutton, was to go to Sydney the next day. On John Kearns the elder's departure, he said to him, "come  

after me, for all is ready; and they are waiting for you,     and everything is come to a point." Deponent took a   strawberry coloured mare with white face, he had in charge, and reached the Race ground farm about four in the afternoon. Here he saw John Kearns the elder, who informed him that Conden was gone to Parramatta with the cart, and the younger Kearns had gone thither also. He then gave to Deponent a fowling-piece and two pocket pistols, desiring him to go to the 90-acre bridge,

(about a mile and a half from Parramatta), where Tom   Mahoney would meet him, and direct him how to act. He rode as fast as possible. Here he tied his horse to a tree, and Mahony came up to him, saying, "Let us go to the   place which Conden has appointed for us." This place of appointment was under the old bridge near Edmund Wright's house, beneath which they crept, and lay con- cealed for a few minutes, when Conden above exclaimed "Come along Mahony and Lewis, there is no time to spare"     It was very dark, Mahony went first, and would have taken the fowling-piece with him, but Conden objected, lest it should be perceived. Deponent, followed, but the others ran before him towards Wright's paling, at one cor- ner of which they placed him, to shoot Sutton if he chanced to come that way. They went forward out of deponent's sight, and 2 or 3 minutes afterwards the shot was fired a few rods from him. It had been previously agreed that Conden should go into Wright's by the back window, and that Mahony should return to deponent, and go with him homewards. Deponent returned to his station beneath the bridge and heard the Rev. Mr. MARS-

DEN, as he believed, say, "keep all in." He remained there till all was quiet, and then went back to the 90-

acre bridge, where Mahony soon after joined him, and telling him he had "done the trick," went off and left  

him. Deponent got to the Race-ground farm between   2 and 3 the next morning, and gave the two pistols and, fowling piece to John Kearns the elder, telling him at the same time "the trick was done!" well knowing that he   knew the meaning of the phrase to be, that Sutton had been killed. Deponent was that morning (Saturday the 6th), subpoena'd on Matthew Kearns's trial for the cattle,   and came to Sydney that day, accompanied as far as

Parramatta by John Kearns the elder, and the whole of   the journey by a female servant of Matthew Kearns's.

The voluntary confession Pearce Conden, one of the prisoners at the bar, taken before two Magistrates at Parramatta after he was taken into custody on suspicion

of the crime, was now exhibited and read by order of the Court, in substance it went to state, that about. three weeks before the perpetration of the murder he   went into the gaol at Sydney to speak to Matthew Kearns, and was called aside by several persons who were also

in confinement on the charge of cattle-stealing, one of     whom remarked that the death of Sutton would save

many lives. Eliza Plumb being present, said she could get him to accompany her wherever she pleased, but he (Conden) refused to take any part in such a transaction. One of the parties observed that he (Conden), had fire- arms in his cart, and people could be got to kill him; Eliza Plumb went with him to Parramatta, and remained with him two nights; He met her in Pitt-street, where

she mentioned the killing of Sutton, and said she would   provide two men for the purpose; if he (Conden), would give up his fire-arms: He did not see her for 8 or 9 days   afterwards, and was not permitted to visit M. Kearns.   When he again saw Eliza Plumb he told him she had the two men in readiness. He was the person who went for the prisoner Thomas Mahony and the witness Lewis, which he did by the direction of John Kearns the elder When he communicated the business to Thomas Mahony, the latter remarked that it was bad to have a woman concerned in it. Lewis was to have a cow as his reward. Nine or ten days before the murder was effected they went to a place whither Eliza Plumb was to have con- ducted Sutton for the intended purpose, but neither he nor her appeared, though she afterwards told him they had been there. He, Conden twice went to Prospect to meet her, and he also made an appointment for Lewis and Mahony to meet him at the stock-yard at Parra- matta. On the night of Friday the 5th instant, he,

Conden, loaded the pistol at Wright's with two large slugs,   and a little after bell-ringing met Mahony and Lewis near the place. He asked if they would know Sutton if they   met him, and Mahony replied ."Yes; I know him very     well, and will do him if I come up to him:" and further   declared that he would have no band in it unless they

should also kill the woman. He returned to Wright's     and while speaking to Eliza Plumb a stone struck a ????     the house; and she said she was sure it was Sutton. He went out and seeing Sutton asked if it was him? and   was answered that it was. He, Conden, ran immediately and informed Mahony that he had seen him (meaning Sutton), near to Wright's paling. He instantly returned and tapped at the skilling window. Eliza Plumb handed the coat and pistol out to him, and he gave the pistol   to Mahony, who left him, and proceeding towards the place where Sutton was, in 2 0r 3 minutes the pistol was   fired. He (Conden), then threw the coat into his cart in Wright's yard, and went in to bed; but Mahony ac- quainting him at the window that the pistol was in the cart, he got up again, went out, found the pistol, and threw it into the place where it was afterwards found. John  

Kearns the elder and the female servant at the farm were acquainted with the whole of the business, but he had never conversed on the subject with M. Kearn or his son.  

George Stanbury, settler of Prospect, deposed, that Eliza Plumb had come to his house on a Sunday (as mentioned in her own testimony), and Conden had been there twice after her.

James Fahie, keeper of the Parramatta Toll-gate deposed to his having informed Mrs. Plumb of the prisoner Conden's   waiting for her at his gate two days, as had been actually

the case.  

W Cox, Esq. corroborated that part of Wm. Lewis's testimony which related to his leaving Hawkesbury for Sydney the morning after the murder; and    

John Martin corroborated the testimony of the same witness in two very material points; first, his having passed     his farm, which is on the South Creek, on the white faced   mare described by Lewis, and going towards the Race-  

ground, on the afternoon of Friday the 5th instant; and also to his re passing him the next morning on his return homeward about sun-rise.—Here the evidence for the pro- secution closed, the examinations having occupied a space of ten hours; and the prisoners were put upon their de-  


Matthew Kearns presented a written paper, which was ordered to be read. This went in substance to the disa-   vowal of any knowledge of the conspiracy formed against   the life of Sutton. It went also to declare that he had con- sidered himself in no danger whatever from any evidence   he might have given, had he lived, and from thence an in-   ference accrued that he could have no interest in his death,   & consequently, no apprehension that could stimulate him to such a combination. To support this declaration the charges upon which he had first committed were re-     ferred to, and combatted upon the principle, that a man of       considerable property as he was known to be, could have no inducement to commit the crimes he had been challenged  


The prisoners then called evidence to the credit of   the witness Lewis, on which point the Gentleman declared   he had known him a considerable time, but had never     before heard or known any thing to the prejudice of his


On the part of Mahony an alibi was set up, but not supported; and the defence of the prisoners, generally, rested on the denial of the charge.

At ten o'clock the JUDGE ADVOCATE and MEMBERS of

the Court withdrew to consider of their verdict, and  

returning to their seats at two o'clock on Tuesday morning, all the prisoners were pronounced Guilty, and received

sentence of Death immediately.  

In performing this melancholy duty the JUDGE ADVO- CATE expressed much concern at the little opportunity the extreme length and fatigue of the trial, and lateness of the hour afforded of remarking so fully on the heinous circum- stances of this case as he should otherwise have done.--- The testimony upon which they had been convicted was such as to leave no doubt whatever of their guilt of a most atrocious murder, which had been premeditated and planned with incredible deliberation, for no other purpose than to deprive the Crown of the testimony of the deceased, and thus, by the greatest of crimes to elude the laws by which we are protected. Without directing his observations to     any individually, he should declare that they had all in this inhuman transaction evinced a capacity to plan, and a resolution barbarously to execute the most atrocious sug- gestions of a depravity, which happily for mankind seldom had been equalled. The Laws of GOD and Man imperi- ously command that the murderer shall suffer death : "for  

whoso sheddeth Man's blood, by Man shall his blood be   shed,!" It therefore was the sentence of the court, that   that they should immediately be returned to prison, and on Wednesday the 24th. instant taken to such place or places of execution as should be appointed, there to be hanged till   dead, and their bodies, when dead, to be dissected and ana- tomized.—Adjourned till 12 the following day, at which     hour the court re-assembling.  

Thomas Plumb was placed at the bar.  

The JUDGE ADVOCATE opened the proceedings by an eloquent address to the Members of the Court, stating that the prisoner then at the bar, having already been tried and   acquitted upon two capital charges, was again brought for- ward to meet his challenge upon a third; but the unhappy   destiny that had befallen Sutton had deprived the Crown of the principal evidence against him, and on that account it would be in vain to proceed to the trial. The learned Gentleman then addressing the auditory, expressed the most sincere regret at the necessity that had unhappily called forth these prosecutions, which were nevertheless designed, not for the punishment of the past, but for the prevention of future crimes by so necessary an example. What had been already done against the persons implicated in the crime of plundering the Government herds, had on the part of Government been deemed sufficient; and it had     been the pleasure of His EXCELLENCY the GOVERNOR humanely to direct, that such prosecutions for offences past should now cease. Those who had been unhappily deluded into that error might therefore lay aside their ap- prehensions but duly would appreciate, he hoped, the clemency that had afforded them relief & sin no more.

The recommendation of the Judge Advocate on the case of  

the prisoner at the bar was unanimously acquiesced in, and   no indictment was preferred against him.    

Elizabeth Heary, committed for prevaricating in her evi-

dence on a former day, was admonished on the sinful na- ture of an offence, nearly assimilated with the abhorrent and awfully destetible crime of perjury, She appeared much affected by the admonition, and received her dismissal.

Richael Murphy and Elizabeth Lawler, convicted on a former day upon two indictments for receiving cattle be- longing to Government, knowing them to be stolen, were brought up to receive sentence transportation for 21 years to any Settlement His EXCELLENCY the GOVERNOR shall be pleased to direct.  

The prisoners who had been capitally convicted were now also brought up to receive their awful sentence. They   were five in number ; namely, Richard Berry, Patrick Maloney, Hugh Byrne, Timothy Hector, John Mahony (brother of Thomas Mahony, who was sentenced to be exe- cuted for the murder), and Richard Osborn. This painful duty was prefaced by an address to the prisoners from the JUDGE ADVOCATE, which was persuasive, solemn, and af- fecting. The crimes of which they had been convicted, he observed, were all of the same kind, and from the extent to which they had proceeded, it was evident that all security would be at an end if they were not effectually repressed;   and to this end example had become necessary. In the   Mother Country the Legislature had wisely provided for the security of cattle by making the stealing of any such a capital offence;—In this infant Colony, where they consti-   tute a property so very valuable, and where the proprietors have not the means of sufficiently providing for their secu- rity, that object was the more important, and, consequent- ly, was entitled to every aid which the Law could afford it. A combination had however been formed for the purposes of depredation and in its direful consequences had pro- duced offences of the blackest hue—Perjury and Murder!   The developement of these offences, with their melancho-

ly consequences, were likely to form a remarkable era in the history of this Colony, and it was devoutly to be hoped the page of record would never more be sullied by so foul   a blot. The address concluded with an exhortation to the

criminals, and Sentence was pronounced. The Court then finally Adjourned-  


On Wednesday morning, between seven and eight o'clock, Matthew Kearns, his brother John Kearns the elder, and his son John Kearns the younger, were taken from the gaol, & were by their own request permitted to walk to the place of execution, where they suffered death, and were afterwards given up for dissection, pursuant to their sentence; and at     four o'clock the same afternoon Thomas Mahony and

Pearce Conden were executed at Parramatta, as near to the spot where the late unfortunate Joseph Sutton was murdered as was possible. Conden died penitently, decla-     ring aloud to the spectators in his last moments that his fellow sufferer was the identical man who shot the deceased with the pistol he had given to him. The other with truly lamentable indifference contradicted his dying declaration, and unhappily appeared but little affected, by the dreadful situation in which his crimes had placed him, A little after four they were launched into eternity, and their bodies, when taken down, were also given for dissection.