The Trial of Ned Kelly at
CONSTABLE McINTYRE'S EVIDENCE
AT THE POLICE COURT.
(By Telegraph to Echo)
Saturday, 2 a.m.
At Beechworth, yesterday, the precincts of the Court were crowded, and much interest was shown in the trial. Ladies and all re- spectable persons were admitted by the side door. Mr. Gaunson made an application for Kelly's relatives to see the prisoner, but the Bench, relying on an order from the Chief Secretary, declined. Mr. Gaunson character- ised as monstrous that they could not see prisoner, and that difficulties were thrown in the way of the defence. He has made another application by telegraph to Melbourne. There are a good many witnesses, and the case is likely to last some time.
The following is McIntyre's evidence, so far as has been given to-day. Thomas McIn- tyre deposed : I am a constable of police at present stationed at the Richmond depot ; in October, 1878, I was stationed at Mansfield ; on the morning of the 25th of that month I left Mansfield with constables Scanlan and Lonigan in charge of Sergeant Kennedy ; we left at about 5 o'clock in the morning to search for Edward and Daniel Kelly; warrants had been issued against them; the Edward Kelly we were in search of was the prisoner now in the dock ; we camped at Stringy Bark Creek, about twenty miles from Mansfield ; all four of us travelled on horseback, and were armed ; at Stringy Bark Creek the country is thickly timbered, but we camped on a clearing ; the photograph produced shows a portion of the ground ; there had been a hut on the clearing but only remains of it were left standing ; a number of logs were lying about ; the open- ing was about an acre or two in area ; we camped immediately behind the old hut, erect- ing a tent there ; nothing occurred that night ; on the following morning, the 26th of October, after breakfast, Sergeant Kennedy and con- stable Scanlan left, to patrol on horseback, and Lonigan and I remained in charge of the camp ; Scanlan carried a revolver, and Kennedy had a Spencer repeating rifle ; Lonigan and I had a revolver each, and one double-barrelled fowling piece ; during the day I was occupied for some time in baking bread, and working about the tent ; Lonigan was looking after the horses, and sometimes reading a book ; he had also two saddle horses and a packhorse to look after ; Kennedy and Scanlan left about 6 o'clock in the morning ; about 12 o'clock Lonigan called my attention to some noise in the creek ; I went down to the creek to search, and took my fowling-piece ; I could not find the cause of the noise, and thought it was a wombat ; on my way back I fired two shots at parrots; I reloaded the gun with small shot, and placed it in the tent ; about four o'clock in the afternoon, Lonigan and I kindled a large fire to guide Kennedy and Scanlan, and prevent them from getting bushed ; this fire was lit about twenty yards from the tent, and was at two logs which crossed each other ; about ten minutes to five o'clock I went to the tent, for a billy to make tea ; I had the tea made, and Lonigan was standing on the opposite side of the fire, when I suddenly heard some voices calling out, " Bail up, hold up your hands ;" I quickly turned round, and saw four men, each armed with a gun at his shoulder, and point- ing it in front of myself ; I noticed the man on the right of the party particularly, and saw that his weapon was in a fair line for my chest ; I was unarmed, and held out my arms horizontally ; I then saw the same man point the gun, more to his right, and fire ; he fired at Lonigan, who had started to run towards a tree ; he was about fourteen yards from Lonigan when he fired, and I heard Lonigan fall immediately the shot was fired ; he had only run four or five steps; I heard him breathing stertorously and heavily ; the man on the right of the party was the prisoner at the bar ; the bushrangers were in a line, two or three yards between each other ; when the prisoner had discharged his gun he threw it into his left arm, put his right hand behind his back, drew a revolver, and called out, " Keep your hands up;" I raised my hands above my shoulder ; at this time the revolver and the fowling-piece were both in the tent; the prisoner and the three others rushed up to where I was standing, and stood at a dis- tance of about three yards from me, and covered my chest with their firearms—three of them with guns, and the prisoner with a revolver ; prisoner said to me " Have you got any firearms ?" I replied I had not ; Loni- gan was plunging along the grass very heavily, and as the bushrangers rushed up to me he said, " Oh Christ, I'm shot ;" the pri- soner was within hearing distance ; six or
eight seconds afterwards Lonigan ceased to struggle and to breathe ; a few minutes after-
wards I saw him stretched out on his back,
and that he was dead ; when I replied to the
prisoner that I had no firearms, he asked " Where is your relvolver?" I said it was at the tent ; he then said to his mates, " keep him covered, lads ;" they kept me covered with their guns, and the prisoner himself searched me ; he passed his hands all over my body, and under my coat ; finding nothing on me, he jumped across a log to where Lonigan was lying ; he remained away a moment, and then returned with Lonigan's revolver in his hand ; he said, " Oh, dear, what a pity that man tried to get away ;" one of the others (Dan Kelly) said, " He was a plucky fellow ; did you see how he caught at his revolver;" and he moved his hand at the same side as Lonigan had done ; the prisoner went over to the tent, and in the meantime the other three had lowered their firearms, but still kept them pointed in my direction ; when he returned from the tent he had my revolver, and he told his mates to let me go ; they then all went to the tent, and I remained standing near the fire ; Daniel Kelly returned to me with a pair of handcuffs ; Edward Kelly came up at the same time, and I heard his brother say, " We will put these upon the — ;" I appealed to the prisoner, saying " What is the use of putting these on me ; now can I get away while you are all armed ?" the prisoner said to Dan, " All right—don't put them on him, this (tapping his rifle) is better than handscuffs ;" then turning to me, he said, " Mind you don't try to go away, because if you do I will shoot you ; if I had to track you to the police station I would shoot you there ;" Dan re- marked, " The — would soon put the hand- cuffs on us if they had us ;" we then went to the tent ; they called upon me to go in with them ; I recognized Edward and Dan Kelly from the description and a photograph we had of Edward Kelly ; when I arrived at the hut the prisoner was sitting outside the tent, with his gun across his knee ; the other three were in-
side the tent ; prisoner said to me " This is a
curious old gun for a man to be going about the country with ;" I replied " It is, but perhaps it is better than it looks ;" he then said "You might well say that, for I will back it against any gun in the country—I can shoot a kangaroo at 100 yards ;" it was an old short-barrelled gun ; it seemed to be rifled, and the stock and barrel were tied to- gether with a waxed string, which covered three or four inches ; at this time the priso- ner took possession of the fowling-pieces I had left in the tent ; he then said to me " Who is that over there ?" pointing to the body;" I replied, "That is Lonigan ;" he said " No, that is not Lonigan, for I knew him well ;" I repeated " Yes, it is Lonigan," when he then said, " Well, I am glad of that, for he gave me a hiding in Benalla once ;" Dan remarked, " He will lock no more of us poor — up," at which the prisoner smiled ; I identified one of the two others as Joseph Byrne, whose body I saw at Glen- rowan ; Byrne asked me to have a drink of the tea I had made ; I did so, and then they all, with the exception of the priso- ner, took some of the tea ; before they did so, the prisoner asked " Is there any poison about here;" I said, " No, why should we have poison ?" whilst the other three were having some tea, the prisoner took the cartridges out of the fowl- ing pieces, picked out the ends of them, threw away the shot, placed a bullet in each cart- ridge, and reloaded the gun ; he then said to Byrne, " Here, you take this gun and give me yours ;" they accordingly exchanged ; Byrne's gun was very old ; the prisoner had now two guns, and he said to me, " There is one of these for you if you don't obey me;" Byrne asked, " Do you smoke, mate ?" and I replied " yes ;" he then said, "Light your pipe and have a smoke with me," and I did so ; the prisoner asked me for a bit of tobacco, and I gave him some ; all this had only occupied some ten or fifteen minutes ; the gang kept possession of their guns all the time ; about this time prisoner said, " That will do now, lads ; take your places ;" he went himself close to the fire, taking the two guns with him ; the fourth man Hart remained in the tent whilst Byrne and Kelly went on to some spear grass which was growing on the outside of our camping ground ; it was on the same side that the gang made their first appearance ; I lost sight of Byrne and Dan Kelly in the spear grass ; the prisoner concealed himself by kneeling down behind a large log near the fire ; immediately after he had concealed himself he called me over, and pointing to the front of the log which concealed him, said, " You stand there ;" the log was about three feet high ; I went up, and we had a conversation ; the pri- soner asked who showed us to this place ; I said no person showed it to us, it is well known to all the people about Mansfield ; he then asked " How did you come here ?" I replied, " We crossed Holland's Creek, and came on in a straight line ;" he then inquired " What brought you here ?" and I said " You know very well who we are ;" prisoner said, " I suppose you came after me," and I re- plied " No, I don't know that we did come after you ;" he said " You came after Ned Kelly then ;" and I answered, " Yes, we came after Ned Kelly ;" he then said, " Yes, you came to shoot me, I suppose;" "No," I re- plied, "but to apprehend you ;" "Then why did you bring so many arms and so much am- munition ?" he inquired ; to which I replied " We brought the fowling pieces to shoot kangaroos ;" he next asked who was shooting down the creek that day ; I said " It was me shooting at the parrots ;" " That is very strange," he remarked, " did you know we were there ?' I replied, " No, we did not think that we were within ten miles of you ; we thought you were there" (pointing in the direction of Greta) ; he then asked when Kennedy and Scanlan were to return to the camp ; he had asked me where they were after he returned from Lonigan's body ; in reply to his last question I said, " I do not think they will tonight, as I think they must have got bushed ; " he asked, " Which direction did
they go in?" I pointed north-west, in the direction of Benalla, and said they were there ; the prisoner said, " That is very strange, but perhaps they will never come back, for there is a good man down the creek, and if they call on him you may never see them again ;" he inquired their names and stations, and said " Sergeant Kennedy, of Mansfield, and constable Scanlan, of Be- nalla ;" he said, " I have never heard of Kennedy, but I believe Scanlan is a flash dog ;" I asked, " What do you intend doing with them ? Surely you don't intend to shoot them down in cold blood ; if you do I would rather be shot a thousand times myself than tell you anything about them ;" he replied, " Of course, I like to see a brave man ; you can depend upon me not shooting them if you get them to surrender ; I will shoot no man who holds his hands up ;" I asked, " Do you intend to shoot me?" he replied, " No ; what would I want to shoot you for ? I could have done so half-an-hour ago when you were sitting on that log if I wanted ; at first I thought you were constable Flood ; it is a good job for you that you are not, be- cause, if you had been, I would not have shot you, but would have roasted you in that fire ; there are four men in the police force, if ever I lay hands on them I will roast them, they are Fitzpatrick, Flood, Steele, and Straughan ; he has been blowing that he would take me single-handed ; how are these men armed ;" I said, " In the usual way ;" he asked what I meant by that—" Did they have revolvers ;" I said " Yes ;" he then asked, " And haven't they got a rifle ;" I hesitated, and he said, " Come now, tell the truth—if I find you out in telling a lie I will put a hole through you ;" I then said " Yes, they had got a rifle ;" he then asked, " What sort is it, breechloading ?" I replied " Yes." "Well," he said, "it looks like as if you came to shoot me ;" I said, " You can't blame the men, they have their duty to do ;" he replied, " You have no right to go about the country shooting people ;" he then inquired, "What about the Sydney man ?" I knew he referred to the murder of sergeant Wallings, and I said, " He was shot by the police ;" to which he replied " If the police shot him, they shot the wrong man ; I suppose some of you will shoot me some day, but I will make some of you suffer for it beforehand."
At this stage the Court was adjourned until next day at 10 o'clock. Before Mr. Foster left the bench, Mr. Gaunson made an application for an order to allow Mrs. Skillian to see the prisoner in gaol. Mr. Foster replied that he would be happy to have an interview with Mr. Gaunson on the subject during the evening. Subsequently Mr. Gaunson applied privately to Mr. Foster for an order to admit Mrs. Skillian to the
prisoner's cell, but he was again unsuccessful,
and has now telegraphed for authority to the Chief Secretary.
The Evening News, of Saturday, publishes the contination of constable M'Intyre's evi-
The police-court investigation of the charge against Edward Kelly for the murder of con- stables Lonergan and Scanlan was resumed at the Beechworth police court this morning, beore Mr. Foster, P.M. The interest in the proceedings was evident by the crowd that assembled outside the court, and clamoured for admittance. The doors, however, were kept closed, and none but those provided with passes were admitted. As on the previous day, the gallery was reserved for ladies, and was filled. Mrs. Skillion, accompanied by Tom Lloyd and Dick Hart, was in attendance half an hour before the court sat. Captain Standish was again seated on the bench, but did not take any part in the proceedings. Mr. Gaunson appeared armed with piles of newspapers having reference to the transac- tions of the Kelly gang. Mr. Gaunson, be- fore the case was called on, said that he desired to call attention to the statements made in the press. In the Argus were re- marks in reference to himself and Mr. Zincke, which were totally devoid of truth. It was therein stated that the prisoner's friends had first employed Mr. Zincke for a special purpose, but failing in that had employed him for the same purpose, both of which statements were devoid of truth. The local paper also spoke of Kelly as a thing to be condemned. Surely this was not seemly or just ; and if it went on, then the court would have to interpose and commit some of them for contempt. Constable M'Intyre was then called, and resumed his evidence. He deposed: Kelly said, " That b— Fitz- patrick is the cause of all this, and those people who were lodged at Beechworth had no more firearms than you have now. These (pointing to his mates) were the men who were there." I said that he ought not to blame us for what Fitzpatrick had done, and he said " no." But after letting him go, he had almost sworn never to let another police- man go. If he let me go, he said, I must leave the police, for he said I would, as my health had been bad, and I had been thinking of doing so for some time. I asked Kelly what he would do with the other two men if
I got them to surrender. He said, " I had better get them to surrender, as, if they did not, he would shoot them. He said he did not want their lives, but he wanted their firearms and horses. At this time the prisoner was look- ing down the creek, and I saw a chance of getting one of the guns. I made a stop forward as if to get it, when Hart, who was then concealed in the tent, ran out and cried, " Look out, Ned, or that b— will be on top of you in a minute." The prisoner said to me " You had better not, mate ; you know there are not three men in the police force able for me." It was by this time about half-past 5 or 6 o'clock, and I expected the other men back. Prisoner said, " Are there any others out?" and I explained that there was a party out under Sergeant Steele. I told him I would try to get Kennedy and Scanlon to surrender if he would promise faithfully not to shoot them. He did so, and then placed me near a log, and told me if I gave any alarm he would put a hole through me. Just afterwards Kennedy and Scanlon appeared, on horseback. The horses were walking very slowly. I don't remember that prisoner said anything more to me. Kennedy was about a dozen yards in advance of Scan- lon. I stepped towards them and said out loud, so that the prisoner could hear, " Oh, sergeant, I think you had better dismount and surrender, for you are surrounded," at the same time the prisoner called out, " Bail up ; hold up your hands." Ken- nedy smiled, and playfully put his hand upon his revolver, which was in its case buckled up. Immediately he did so the prisoner fired at him, but missed him. Kennedy's face assumed a serious aspect,
and I turned round and looked back at the
prisoner and his mate, and I saw them. There was one in the tent, and two in the spear grass. They came forward running with guns in their hands, and Hart cried as he came forward, " Bail up ; hold up your hands." At the time the prisoner fired at Kennedy, he was behind a log, kneeling on his right knee. Kennedy must have seen
his head and shoulders before he fired. As the other three were advancing Kelly threw down his discharged gun, and picked up the one that was loaded, which he pointed in the direction of Scanlon. I again looked at Kennedy, and saw him roll on his face on his horse's neck, and roll off on the off side of the horse. At the same time that he did so there were four shots fired. Scanlon pulled up about 30 yards from where the prisoner was concealed, and was in the act of dis- mounting from his horse when he first heard the cry to bail up. He caught at his rifle, as if to take it off his shoulder, where it was strapped, and endeavoured to get upon his feet. He fell upon his hands and knees, and in that position was shot upon the right arm. Prisoner covered him, but there were three or four shots fired at the same time, and any of the others might have covered him. Scarcely any time elapsed between the cry to bail up and the firing of the shots. Seeing Scanlon falling, I expected no mercy for any
of the party, so I caught and mounted Ken- nedy's horse, which was close to me. The horse was restive of fire. I turned his head north, and he moved about twice his own length while I was struggling to get into the saddle. After some trouble I succeeded in mounting. Kennedy must have seen me mounting, but he did not say anything. A number of shots were fired while I was riding away; but at whom, I could not say. I saw a blood spot on Scanlon's coat immediately after the shot I have spoken of, and he laid over on his back. I rode away northerly to- wards Mansfield, until I got 100 yards past the gap, when I turned westerly, which would take me to the telegraph line between Benalla and Mansfield. I was thrown off my horse, and crept into a wombat hole. I was in the bush all night, but succeeded in getting to Mansfield. At 3 o'clock on Sunday morning I was as far from Mansfield as I was when I left the camp, for I wandered about in the bush. On arrival at Mansfield I re- ported what had occurred to sub-in- spector Pewtress. He organised a search party of police and others, and accom- panied them. We left about two hours after I got back to Mansfield. We got back to the scene of the murders about 1 or 2 o'clock on the Monday morning, and found the bodies of Constables Lonergan and Scanlan where I had last seen
them. Both were dead. We made a search for Kennedy then, but did not succeed in finding him then. Our tent was burnt down and that portion of our property which was not burnt was removed, including arms and ammunition. All we found were the tin plates. Mr. Pewtress came out in charge ot the party. Dr. Reynolds arrived about daylight. He is the medical gentleman who afterwards made the post mortem examina- tion. I showed the two bodies to him. We removed the bodies to Mansfield. The doc- tor looked at them before we removed them. They were taken on pack horses as far as Mann's Wombat saw mills, and from thence to Mansfield in a waggon. I was present at the magisterial inquiry as to the death of constable Lonergan. Dr. Reynold's gave evi- dence. I saw some bullets. I saw one bul- let from the body of Lonergan. It was pointed out by Dr. Reynolds. I saw three bullets altogether. I was not one of the party who found sergeant Kennedy's body, but I saw it on the Thursday following October 31. When it was brought into Mansfield there was a magisterial enquiry on that body. Kennedy had a gold watch when he started with this party from Mansfield. The last I saw of the watch was on Friday night, the night before the murders. It was a valuable gold watch. I never saw the prisoner again until I saw him at Glenrowan on Monday, June 28 last. Since the murders at Mansfield I have been principally attached to the police force. My health is now very good. At the time of the murders I had been suffering from billiousness. When I arrived at Glenrowan on the 28th June last the prisoner had been arrested. Mr. Smythe : " You had a conver- sation with the prisoner then ; what did he say ?" Mr. Gaunson at once objected to the question. He said that at a late stage in the proceedings he would refer to the conduct of the police on that occasion. It was indecent to ask such questions. It would be shown at a later stage of the proceedings that Kelly was seriously wounded, and that his mind was not in a position to answer a series of ques- tions. Mr. Gurner had published a handy book, in which it was stated that constables ought carefully to abstain from asking questions. If evidence of this sort was admitted there was nothing to prevent the police going into cells and literally posting prisoners to compel them to give evidence. Mr. Smythe said it would be for Mr. Gaunson to wait and take his objec- jections after he had heard the questions. Witness continued : I went to the lockup at Benalla and saw the prisoner there. Mr. Gaunson : " Did you arrest the prisoner ?" Witness : " No." Mr. Gaunson : " Did he send for you?" Witness: "No." Mr. Gaunson protested against the blackguardly and brutal nature of this proceeding, the police sent to a wounded man for the purpose of getting him to commit himself. He ven- tured to say if the court admitted the evidence it would find itself in the position of seeing it arrested when it came before the Supreme Court. Mr. Smythe continued to say that the evidence of both could be admitted. Mr. Foster said he was quite prepared to take the responsibility of accepting the evidence ; the question as to the conduct of the prisoner, owing to his wounds, was one for the jury. Witness continued : " When I saw the pri- soner in the Benalla lockup senior-constable Kelly was with me, and he said to prisoner, 'Do you know this man, Ned?' Prisoner said, ' No, is it not Flood ?' I said, ' You took me for Flood the last time we met.' The prisoner then recollected me. I told him that at the time of the murders, when I turned suddenly round, I found he had my chest covered. He said that Lonergan pointed his revolver at him. He said that was all nonsense. I asked him why he came near us at all, and why he did not keep out of our way. His reply was that we would soon have found them out. Their horses he said, were poor, their arms and ammunition bad, and they
wanted to make a rise. I then asked him if I had shown any cowardice, and he said, " No !" I left him then. To Mr. Gaunson :
Am 35 years of age. I went to the Rich- mond depot on the Friday following the murders. I volunteered to go to Glen- rowan ; I volunteered to the Commissioner at the Spencer-street railway station. Had a conversation with him on the railway at Glen- rowan. He said to me, " Can you identify this man, M'Intyre ?" I said, " Yes, sir." This was about 5 o'clock in the evening. I had previously seen the remains of what I took to be two men. They might have been women. The prisoner was not present when I was spoken to by the Chief Commissioner. I said, " Is Kelly much changed?" I went next day to the Benalla lockup to see the prisoner. Nobody told me to go. I simply heard that he had been mentioning my name.
I went to see him. I had no intention of using the conversation as evidence. Senior constable Kelly went with me. The lock-up keeper was not present when we went to the lock-up. Senior-constable Kelly was temporarily in charge. There was a guard outside, but I do not know the name of the constable. He did not say anything to us. Senior-constable Kelly had the keys. I need not have gone, had I not liked to do so. When we went in the prisoner was lying
down. He was wounded in one of the arms. He was sane seemingly. Constable Kelly was by my side, but not taking notes. He
did not produce the usual metallic note book. He did not take any notes in the cell or in my sight. I did not have any conversation with Senior-constable Kelly after the in- terview with the prisoner. Senior-constable Kelly did not tell me whether he had my notes of the interview. I sleep in the police barracks here. I slept there last night. The night before I slept in the Beechworth goal. I wrote out my brief of the whole case and gave it sub-inspector Kennedy. I have spoken to Senior-constable Kelly in re- ference to the interview with the prisoner. I told him what my evidence would be, and asked if it was correct. He said that it was. There was another constable present during a portion of the interview with the prisoner, but during the other portion there was only senior-constable Kelly and myself. I am aware that I am the principal witness in the case. A number of newspaper reporters had free access to me, and I made statements to them while the facts were fresh in my memory. I made my first report in Mansfield on Sunday afternoon. It was in writing, and was either to Sub-inspec- tor Pewtress or Superintendent Sadlier. No one superintended my composition of the report. I know I said he was a clerk in the Superintendent's office. He would see my report. I am not responsible for what ap- peared in the papers. I believe I made statements correct, I principally read the
Age, as I am a poor man, and can't afford the Argus. I believe I did read some of the earlier reports in the Argus. I believe by my first report that I stated, or at least, I should have stated, that Ned Kelly shot constables Lonergan and Scanlon. I have not seen the report for two years, and can't swear exactly to what I saw. I was excited when I wrote it. I had never seen Kelly before the murders, but I knew him from his family likeness, from his mother and sisters, and also from the likeness. I saw the photograph in sergeant Kennedy's possession ; it was on a discharged prisoner's document from Pentridge. I swear I did not tell Kelly that I knew Fitzpatrick had perjured him- self. I do believe that the prisoner tried to shoot Fitzpatrick. I remember seeing an Argus reporter at the depot a week after the murder, when I was in a state of nervous pro- stration. I can't say whether I then stated that the photograph of Kelly, circulated by the police, is a capital likeness. I do not know whether the police in Beechworth have any photographs of Kelly. I have seen a number of photographs, purporting to be photographs of the prisoner. We went to the Wombat Ranges to arrest Edward Kelly for attempting to murder con- stable Fitzpatrick, and Dan Kelly for aiding and abetting. We borrowed some extra fire- arms, but all had our regulation revolvers. We had no rations. We did not take up a cannon on that occasion. I had no warrant, but I can't swear whether any of the others had. We expected resistance but not attack. We left Mansfield at about five o'clock on the Friday morning. It was not then fully day- light. We arrived where we camped that night. Sergeant Kennedy told me there were some kangaroos down the creek, and asked me to have a shot at them. I went, but re- turned without firing. I was in this court during part of the trial of the prisoner's mother, his brother-in-law, and a man named Williamson. I heard part of Fitzpatrick's evidence, and also heard that the three were sentenced to terms of imprisonment. I saw Mrs. Kelly at the trial ; she had an infant at
the breast. I did not hear at the Wombat that Mrs. Kelly and her infant were twelve months in the Melbourne gaol. There was a reward of £100 for the arrest and conviction
of Edward Kelly when we went to the Wom- bat. We always carry revolvers when on duty. If Kelly had resisted with firearms, I would shoot him. If he was getting away, and was charged with murder, I would shoot him. I do not know where Fitzpatrick is now. I believe he has been dismissed the police force. Did he possess the qualities of truthfulness, uprightness, and decency, I do not think he would have been dismissed ; but even though he possessed these qualities, he might have been guilty of some indiscretion that procured his dismissal. Fitzpatrick was the only wit- ness on whose evidence Mrs. Kelly, Skillion,
and Williamson were convicted. Although Fitzpatrick has been dismissed, there has not been any pardon extended to these three. We had sought very often for Dan Kelly between April and October, 1878. There was a warrant out for him for horse stealing. I knew nothing about any information as to the whereabouts of the Kellys. I simply accom- panied sergeant Kennedy's party. We were not in uniform. We were in plain clothes, something as I am dressed now. We were not disguised as diggers. We are neither afraid or ashamed of our uniforms. I do not know whether there is any regulation enabling us to go about in plain clothes. Besides, I was simply acting under instructions of Sergeant Kennedy. I dare say he was acting under the instructions of his superior officer. When we were first bailed up nothing was said about " We don't want to take life ; we only want your arms." After Lonergan was dead I had a conversation with Kelly. He said, " That b— Fitzpatrick is the cause of all this." I don't remember saying " I know that," but did say " You can't blame us." I will not swear that I did not say " I know that." If anything was said about sergeant Steele giving evidence against the mother, it has escaped my memory. Sergeant Steele did give evidence at the time of the murders. I was as cool as I am now, and I can remember very well what occurred. I wrote it down to refresh my memory immediately after I got to Melbourne. The moment after Kennedy got off his horse I mounted it and rode off. As soon as I saw the horse abandoned I seized the horse and cleared. The thought never entered my head until I saw the horse aban- doned. I have said that Kennedy smiled and playfully tapped his revolver. I don't know whether he smiled to me, as I was riding off. I will not swear that Kennedy was not dead at the time I got on the horse. I could not look round at that time ; not only was I anxious to escape, but had I looked round I would probably have rushed against some timber. I recollect I have sworn that Ned Kelly fired at Kennedy and missed him. I cannot say whether there is a great
kindness of feeling on the part of the police towards the prisoner. I can't speak for other men. I have had conversations with some of my comrades. So far as
I can recollect, I have not heard any express a desire to see him sen- tenced to death. Sergeant Steele had not expressed any desire to me as to the sentence of death. If I have had a conversation it has escaped my memory. Mr.
Gaunson concluded his cross-examination with M'Intyre with the remark, " Well, sir, I'll lead you to the hands of a gentleman in the Supreme Court far more able to turn you inside out than I am." The Court then ad- journed for an hour for luncheon. In reply to his telegram sent to the Chief Secretary yesterday, Mr. D. Gaunson had received a message from the Under-Secretary, Mr. Odgers, stating the Chief Secretary declined to vary the order of his predecessor at the present time. Consequently Mrs. Skillion has not been permitted to see Ned Kelly in private. Kelly is generally respectful in his demeanour; he takes a scarlet lined opossum skin rug into the dock with him, and appears to be afraid of the least draught. When visited by Mr. Foster, P.M., he said that he did not care whether he lived or died, but that he would like to save or serve some of his friends first, the inference being that he had a plant some- where in the ranges, and would like to let it be known to his sisters. On resuming at two o'clock the court was crowded, and a number of Chinese were in the body of the court. The gallery was crowded by females. Constable M'Intyre was re- called, and Mr. Smythe asked that the witness might he allowed a chair, as he had been very unwell during the last few days. M'Intyre
said he was able to stand. Mr. Gaunson said that the witness had given a very complete narrative of the occurrences, but as there were discrepancies between his narrative in
the witness-box and his published evidence by the papers, it would be necessary to call at- tention to these. M'Intyre in reply to Mr. Gaunson, said, " I did state that Kelly said " If you get the men to surrender, we will handcuff you for the night, and let you go in the morning, but on foot, as we want your horses and arms." I do not think I ever said that Scanlan was dropped against a tree. I was annoyed by reporters. They would suggest a question, and take anything for an answer. I thought there was too much pub- lished in glorification of the Kellys, and intended in that way, I had very little con- versation with any of the four men, excepting the one. I have sworn to the conversation between the prisoner and myself at the logs. It did not occupy more than a quarter of an hour or thereabouts. The party had four guns when they came up. Then there was my fowling piece, which made five. My fowling-piece was unloaded, but was freshly loaded by Kelly, and given to one of his mates in exchange for a single-barreled gun. Kelly contented him- self with two shots from guns at the time. Dan Kelly carried a single barreled piece. I was never concerned about my own safety at the time. I now state I saw Kelly's piece was loaded with a common bullet. I saw
him discharge the gun, and saw the smoke issuing from the barrel. I swear I saw three of them firing. I think I heard about a dozen shots, but I cannot say exactly how many. I believe Hart carried a double barrelled gun, a common cheap one, and I heard him discharge it. I do not know what they were firing at, and might have been., firing at parrots for all I know, but I believe they were firing at sergeant Kennedy. I was in front of Kennedy, who was about 20 yards from the man, and I was close to him ; I could have shaken hands with him had I advanced a step or two. The men were behind me, but I heard the report, and under- take to swear that they fired. Byrne had an old-fashioned gun, of very large bore. I saw the prisoner cover Kennedy with the gun after he got it from Byrne, and heard the report — that was when he missed. Kelly had the gun I have described with string and sealing wax on it. I heard all the guns discharged, but I cannot say whether they were loaded with ball or shot. I will not swear Kelly shot at Scanlon. I saw him point the gun at Scanlon
and heard the shot. I did not resolve to
escape if I could until I saw Scanlon shot. Kennedy dismounted, and Scanlon was shot at the same moment. I could not distinguish
between the time of these two occurrences. It was my intention to get the men to sur- render, but when I saw Scanlon shot I deter- mined to make my escape, if possible. I saw Kennedy fired at, but after that I do not know who fired the shots I heard, or who they were fired at. Have not seen any of theae guns since." This concluded M'Intyre's evidence, the reading of which will occupy some time, but this was postponed in conse- quence of the witness not being well enough to listen to it. Samuel Reynolds, a legally qualified medical practitioner, residing at Mansfield, deposed : " I was present at a magisterial inquiry on the body of Thomas Lonergan, and I had previously seen the body on the day before, about three o'clock in the morning at Stringy Bark Creek. I saw it lying on its back, but did not make a careful examination of it, simply satisfying myself
that the man was dead. I noticed a wound
in the face. I made a post mortem examina- tion on Lonergan on Tuesday morning (next day). I found four wounds, one on the left arm, one on the left thigh, one on the right temple, and one on the inner side of the
right eye. I looked upon these wounds as bullet wounds. The worst wound was simply a plain hole through the left arm, between the shoulder and the elbow. The bullet in the thigh had passed round under the skin to the inner side where I found it, and extracted it. The wound on the temple I might describe as a graze. The one through the eye-ball I traced through the eyeball and into the brain. I did not extract the bullet, but satisfied my- self where it was, and arrived at the cause of death. From such a wound as this death would ensue in a very few seconds. I know the last witness (M'Intyre), who pointed the body out to me as that of Lonergan. I also made a post mortem examination of the body of constable Scanlon. To Mr. Gaunson : One wound was a mere graze ; it was a minor wound, and it was a supposition that it was a bullet wound. The wound through the left arm would not cause death, nor would the bullet that travelled round the thigh. The bullet through the eye was the only one that would cause death. I did not extract this
bullet ; I left it there. M'Intyre's evidence was then read over, and this occupied a con-